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Just a few days left until the Fifth Circuit takes up marriage equality

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Hey everyone,

There are just a few more days until the Fifth Circuit Court of Appeals hears arguments in three cases challenging same-sex marriage bans. You’ve all been incredibly generous, and with your help, we can raise the money to not only attend the Fifth Circuit arguments, but also to fund the site throughout the year, and to start preparing for possible Supreme Court action in the coming months.

On Friday, while we’re in New Orleans covering the hearings, the Supreme Court will be meeting in its private, closed-door conference to discuss a group of cases, including petitions for review in five challenges to same-sex marriage bans. The Court will look at cases from Tennessee, Ohio, Michigan, Kentucky, and a petition in the Louisiana case before that case is decided in the Fifth Circuit. We could know as early as Friday or the following Monday whether the Court will take up one or more of the marriage cases – it only takes four votes to grant review.

And although the Court declined to review several cases in October, the courts of appeals didn’t disagree at the time on the ultimate question. Now, the Sixth Circuit has parted ways with the other courts that have decided the issue. That makes it very likely the Court will choose to review a case, hold arguments in April, and issue a decision by late June 2015.

Getting to Washington DC to attend Supreme Court arguments will take considerably more prep work and it will cost more money. But with the appeals courts disagreeing on the issue, and with no procedural quirks in these cases to prevent the Court from making a final ruling, this could be the year we get marriage equality in all fifty states. EqualityOnTrial should be there to provide our in-depth, detailed, and clear coverage of this historic moment.

If you can spare any amount for a tax deductible donation, we’ll be there to report on every step in the process. And donors will be invited to participate in an exclusive live chat with Jacob and myself on Friday afternoon to discuss the Fifth Circuit hearings, give our takes on the likely outcome, and answer any questions.

We’re getting ready for a big year, and we’re glad to have your support!


– Scottie and the EOT team


  • 1. Jaesun100  |  January 7, 2015 at 9:49 am

    Does anyone know if Audio Streaming of the hearing will be available?

  • 2. brandall  |  January 7, 2015 at 9:51 am

    Yes, approximately one hour after the conclusion the court will make them available.

  • 3. StraightDave  |  January 7, 2015 at 9:56 am

    These are recordings, nothing appears to be live at the 5th (unlike the 9th).

  • 4. Zack12  |  January 7, 2015 at 9:59 am

    The 9th is the only one that does it live.

  • 5. lengriff  |  January 7, 2015 at 10:09 am

    Do you take paypal?

  • 6. Raga  |  January 7, 2015 at 10:16 am

    To add to what brandall said above, it will not be live streamed, but according to this Fifth Circuit release, the recordings will be available within one hour after all three arguments are finished.

  • 7. Scottie Thomaston  |  January 7, 2015 at 10:32 am

    Unfortunately no, it has to go to the link above (the thermometer graphic.)

  • 8. Scottie Thomaston  |  January 7, 2015 at 10:34 am

    As others already answered, they don't do live streaming, but audio is supposed to be released fairly quickly after the last argument. We'll also have a recap up pretty quickly once court is over.

    Depending on if there are any good comments made by any of the judges, I may tweet them from @EqualityOnTrial, but I won't be able to start doing that until I'm out of the courtroom.

  • 9. Wolf of Raging Fires  |  January 7, 2015 at 11:51 am


  • 10. VIRick  |  January 7, 2015 at 11:52 am

    Scottie, jumping ahead to April, I have a very close friend in DC who has a condo within walking distance of the Supreme Court (and Capitol Hill, Chinatown, and all the Smithsonians). As a result, I will probably be there myself.

    We can discuss this more after you return from New Orleans.

  • 11. Jaesun100  |  January 7, 2015 at 12:06 pm

    Thanks all , I'm excited too!!!

  • 12. davepCA  |  January 7, 2015 at 12:37 pm

    Yes, I've heard about this, and it seems really odd. I've only seen a few snippets from the actual show, and what I saw looks like it's clearly about guys who ARE gay, but choose to marry someone of the opposite sex (and then justifying this with religious beliefs or whatever).

    It remains to be seen if the show is actually attempting to portray this as a reasonable and rational option for a satisfactory life for a gay person, or whether it will in fact make it clear that gay people should marry gay people (of the same sex), and straight people should marry straight people (of the opposite sex).

    There does seem to be a lot of hype about the show, partly from the network but largely by people who, in my opinion, may be jumping to conclusions about what the show will actually be portraying and what, if any, 'message' it may be attempting to present. Personally, I'll wait and see (if I even bother to watch) because so far I don't know if it's going to be doing anything harmful or irresponsible, or if it may really end up being helpful.

    One thing I DO take issue with is the actual name of the show: "My Husband's Not Gay". This is clearly an attempt to stir up controversy and gain more viewers, and based on what I did see, and what I've read from the network about the content of the show, it's just plain false. So there's that.

    But aside from the problems with the title, which could be considered to be implying that simply marrying the opposite sex somehow 're-classifies' someone as being straight, I don't have enough info yet to know if this show will be a good thing or a bad thing or just pointless nonsenses, a la "Honey Boo Boo", another fine offering from TLC, The "Learning" (really?) Channel.

  • 13. flyerguy77  |  January 7, 2015 at 12:41 pm

    I have a good feeling about Friday.. but it could change after oral arguments..

  • 14. efrogers1  |  January 7, 2015 at 12:49 pm

    Hi, folks, I've been enjoying this blog for months now. I'm teaching a course on religious arguments about same-sex marriage in a secular Religious Studies department, and have for almost 20 years. But this year, above all, some of the appeals court decisions are more important and more interesting, and I want to depart from religious texts for one week to read one or two appeals court decisions. (I've read most of them, but not as carefully as the rest of you, and not with an eye to which one or two are the best.) The criterion is, they should be clear and easy to read for undergraduates who have never read a court opinion before. Bonus if the arguments they answer are discernibly religious. Thanks for your advice.

  • 15. RnL2008  |  January 7, 2015 at 1:02 pm

    Thanks Dave for your honesty……I'd heard about the show, but just thought it was like any other show on TLC, but basically, I saw the trailer and agree, it's NOT the message that should be sent out, it's like the story of Josh Weed and his marriage to his best friend…….there's just something wrong with trying to make folks believe that being Gay or Lesbian is a choice and that we should try and marry someone of the opposite-sex…I see to many folks who already feel we had the RIGHT to Marry all along……and that's the WRONG message to send!!!

  • 16. davepCA  |  January 7, 2015 at 1:07 pm

    IMO, they are all clear, but much more so after the reader has a basic understanding of some of the legal and constitutional terms and concepts that are consistently used throughout all of them. Things like knowing what a "states interest" is and is not, the concepts regarding 'level of scrutiny' (rational basis, intermediate, and strict scrutiny) and how these came about and what determines which one gets applied in a particular case. Also an understanding of when a law is and is not allowed to target a group of citizens for denial of equal legal treatment, and the concepts of 'Due Process' and Liberty.

    You may also do better by starting with a lower court decision where the initial decision in a case was made, like from a state Supreme Court or a Federal District Court, rather than a Federal Circuit Appeals court ruling that re-examines that original lower court ruling. The Appeals Court rulings often make reference to things found in the original lower court rulings that may or may not be completely clear if you don't have that context about what happened in the original ruling. Maybe start with the California Prop 8 trial and the original ruling by Judge Walker. Or the original Utah ruling by Judge Shelby.

    BTW, I'm curious to know what you mean when you refer to 'religious arguments' in a debate about secular civil laws that are tested for validity by determining if they do or don't comply with the mandates of the Constitution. Because every time I have seen a 'religious argument' used in such a debate, it amounts to trying to solve a math equation through interpretive dance. While we are all entitled to hold our religious beliefs, they just don't tend to be any kind of relevant argument to determine if a civil law does or doesn't comply with the Constitution. That is determined by examining the law using the process of basic Constitutional Law, not by what any religious belief may say about it. This is repeatedly made clear in these rulings.

  • 17. davepCA  |  January 7, 2015 at 1:14 pm

    Yes, time will tell. If in fact the show DOES try to present the idea that gays can just marry someone of the opposite sex for whatever reason and that this is somehow a viable healthy option for a questioning young gay person to consider, rather than revealing that doing this is just needlessly denying yourself a life that is fundamentally suited to yourself and is almost certain to result in a miserable experience, you can bet they'll be getting an earful from me.

  • 18. RnL2008  |  January 7, 2015 at 1:19 pm

    After reading a different article on the show, my take is that these men are bisexual and have opted to live life as heterosexual…..and that's not my issue……this comment is however my problem with the show:
    Jeff Bennion said he would be horrified if a parent told a gay child that they should be more like one of the men on the show.

  • 19. efrogers1  |  January 7, 2015 at 1:28 pm

    Of course the religious arguments don't _belong_ in secular courts, but they show up in sheep's clothing. Meanwhile, reason does show up (it's how courts make things "repeatedly clear")–and reason is relevant in (many people's) religious arguments. So the secular courts can have a clarifying effect even in church arguments, by chasing out some of the bad ones. Meanwhile, you're suggesting Shelby. Do others agree that Shelby and Posner would make a good pair?

  • 20. Rick55845  |  January 7, 2015 at 1:30 pm

    It seems like he is saying that he thinks parents should not encourage their gay children to make the same choice that he did. He is implying that his choice is his own personal decision, not a prescription for others to follow.

    If the show airs, though, I am sure that many people will hold it up as a path to "redemption" and "normalcy" for gay people. Sad.

  • 21. Zack12  |  January 7, 2015 at 1:33 pm

    Have to say I hope SCOTUS grants cert so the case from the 5th will be put on hold.
    While I'm not chalking this up to a automatic loss like the 6th ( I HATED being right about that), I'm still not holding my breath on this panel.

  • 22. RnL2008  |  January 7, 2015 at 1:36 pm

    That's EXACTLY my point…….these men appear more Bisexual, which is NOT truly discussed, but they are NOT Gay and it does or can send the wrong message.

    Funny or Sad how folks are supposedly happy when folks "CHANGE" from being Gay to straight, but NO one is happy when one finally comes to terms with themselves and realize that all along they were Gay or Lesbian, to me….this is also wrong and sad!!!

    We should support people no matter when they come to terms with who they are………and we need to understand folks who are bisexual…..which is something even I have to admit I am only beginning to understand as I have a family member who goes both ways.

  • 23. hopalongcassidy  |  January 7, 2015 at 1:46 pm

    Actually, you can distill that course down to about 3 sentences and 45 seconds.
    1) Imaginary deities are not relevant to the real world,
    2) Even if gods DID exist, they'd have no business screwing with non believers, and
    3) Faith is a piss poor substitute for thinking.

    See how easy it is? 😀

  • 24. A_Jayne  |  January 7, 2015 at 1:52 pm

    For another good district-level case, Judge Reeves' ruling in Mississippi might hold what you are looking for. He addresses quite a bit of anti-gay history (and some of the religious arguments behind it).

  • 25. weaverbear  |  January 7, 2015 at 1:52 pm

    Glad you're here and finding this of interest.

    I am however disquieted by the end of your question – "Bonus if the arguments they answer are discernibly religious." The primary concern for most if not all of us here on this site is our right (or the right of those who're LGBT) to a civil marriage. Questions of religion need to be answered by theologians and religious courts within that denomination, not by our civil courts and legal rights to civil marriage must not be decided by religious courts. We do after all have separation of church and state in the US.

  • 26. davepCA  |  January 7, 2015 at 1:53 pm

    If you want to use the 7th Circuit Appeals Court ruling by Posner, I would recommend you pair that with the original lower court ruling (District Court, southern District of Indiana) on that same case, by judge Young, otherwise as I mentioned it may be confusing because you'll be missing details that the Posner appeals court ruling refers to.

    Here are couple of links to the PDFs of the original Indiana district court ruling by judge Young, the original California ruling on Prop 8 by Judge Walker and the original Utah ruling by Judge Shelby:

    I have to admit I really don't understand what you are saying in your remarks about how 'secular courts have a clarifying effect in church arguments'. In my experience, 'church arguments' are simply irrelevant to the legal question. They don't do anything to show how a law either does or does not comply with the Constitution, regardless of how much 'clarifying' they may be subjected to. They just don't have anything to do with the process by which laws are tested for constitutional compliance.

  • 27. Zack12  |  January 7, 2015 at 1:53 pm

    My husband is bisexual and he doesn't have the self-loathing these men do.
    It truly is sad how these men and women are staying in loveless marriages to please others, it truly is.

  • 28. RnL2008  |  January 7, 2015 at 1:58 pm

    To me, this show is NOT good for the health or well being of our young Gays, Lesbians and Bisexual individuals.

    I signed the petition because I do believe it bad TV.

  • 29. VIRick  |  January 7, 2015 at 2:15 pm

    In my opinion, the only faith-based challenge at the District Court level was:

    "General Synod of the United Church of Christ v. Cooper"

    Here's a synopsis of what I published on another website at the time of its happening:

    "North Carolina law delegated the authority to conduct marriage ceremonies to ministers but made it illegal for them to wed couples without a valid (state-issued) marriage license. The North Carolina constitutional same-sex marriage ban also criminalized anyone presiding over a same-sex ceremony performed anywhere within that state.

    As an organized body, the General Synod of the United Church of Christ, which regularly presides over same-sex marriages in other jurisdictions that allow it, strongly objected to having its NC clergy placed in a position of committing a criminal act if one of them were to violate NC's ban by presiding over a same-sex marriage there. Thus, it filed suit on 28 April 2014.

    It would appear that this church body has a very strong First Amendment case which will ultimately lead to the overturning of NC's constitutional prohibition (and it did). Their lawsuit also breaks new ground, as it challenges the ban from a completely different direction, as clergy who would like to be free to perform same-sex marriages, if such an occasion were to arise within their congregations, are included as plaintiffs.

    The list of plaintiffs in the First Amendment, faith-based challenge to North Carolina's prohibition of same-sex marriage continued to grow, and by July 2014, included 4 different religious denominations (including both the Alliance of Baptists and the Central Conference of American Rabbis), an impressive array of clergy (as officiants, whose religious liberty is being interfered with by the state, including ministers representing the Episcopal, Lutheran, and Unitarian Universalist denominations), and any number of congregants, mostly same-sex couples who wished to be married in N. Carolina. The plaintiffs were from all over the state, including Raleigh, Charlotte, and Asheville."

  • 30. flyerguy77  |  January 7, 2015 at 2:18 pm

    it's called freedom of Speech/press.. if you don't like it don't watch it.. We cannot censor some tv show because of what we won't like what they will be airing.. that's bullying.. We can not be bullies in a way it looks bad for us.. Maybe it might be educational in a way.. it has not aired yet.. I bet ya. if TLC has shows on gay families, coming out, and etc. Anti-gay people will be having a fit……

  • 31. davepCA  |  January 7, 2015 at 2:33 pm

    Freedom of speech/press refers to the fact that the STATE may not interfere with speech and press by making such things illegal. It does not preclude other citizens from voicing their own opinions about someone's speech/press activities and engaging in acts such as signing petitions and reaching out to advertisers to complain.

    But again, we do not yet know what the show will and won't be portraying. It could be an irresponsible and inaccurate idea that gays just 'should' marry the opposite sex, it could make it clear that doing so would be a bad idea with potentially serious detrimental repercussions, or it could simply be a fairly balanced show about a few bisexual people who choose to marry the opposite sex instead of the same sex. We just don't know yet.

  • 32. RnL2008  |  January 7, 2015 at 2:38 pm

    From reading a different article regarding the show, it appears that the 2 main men are in fact bisexual WITHOUT making a clear distinction about who they are. the title suggests that the show is somehow involves being Gay, but I DON'T believe that is what is happening.

    And if it's regarding Bisexual men, then say so….but it is implying in my OPINION that these men are Gay and because of their faith they have opted to live life one way.

  • 33. F_Young  |  January 7, 2015 at 2:56 pm

    flyerguy77: "it's called freedom of Speech/press…"

    Petitions are speech too.

  • 34. wes228  |  January 7, 2015 at 3:11 pm

    I agree that the 7th Circuit's opinion is definitely the most fun to read.

  • 35. VIRick  |  January 7, 2015 at 3:13 pm

    Actually, the best part of Judge Reeves' ruling came, after thoroughly trolling Scalia for his previous dissents on several precedent-setting cases, complete with all of Scalia's "sky is falling" histrionics about how it was all going to lead to same-sex marriage, when he concluded with "This proved true." And then summarily overturned Mississippi's ban.

    But on your other points, "Yes, of course."

  • 36. ijsnyder  |  January 7, 2015 at 3:16 pm

    The Posner opinion from the 7th Circuit is marvelous. It has the added bonus of being a bit pedagogical. As it happens, I also really enjoyed the lower opinion from Wisconsin by Crabbe (Wolfe v Walker, I think?). Those two could pair nicely.
    I also thought that the main brief to SCOTUS from Olson and Boies in Hollingsworth v Perrt was tremendous writing.
    There are many great opinions but I would be negligent not to also recommend the blistering dissent from the 6th by Daugherty. She did not let her colleagues get away one bit!

  • 37. Mike_Baltimore  |  January 7, 2015 at 3:26 pm

    Complicating the Circuit Court rulings is that in District Courts, the judge might have combined several cases into one ruling. The Southern Indiana District Court ruling, for example, combined at least three cases into one decision. Thus only reading the District Court ruling might cause confusion, as much of the wording in the ruling might apply only to one case, ignoring the other cases. Then the ruling might refer to a second case, ignoring all the other cases.

    Where to begin? The original filings? Briefs from 'friends of the court'?

  • 38. Mike_Baltimore  |  January 7, 2015 at 3:47 pm

    Considering that efrogers1 has already stated that he/she is teaching a course on religious arguments about same-sex marriage in a secular Religious Studies department, I think, since it is a religious course, and not discussing religious arguments could be used by 'dissatisfied' students (or other profs/instuctors/teachers) as not keeping to the course subject.

    Besides, a Circuit Court ruling will rarely, if ever, support a religious argument, but show how/why a religious argument is NOT applicable in a civil case.

  • 39. TDGrove  |  January 7, 2015 at 3:53 pm

    DeBoer v Snyder. Written without a lot of legalese, and it may turn out to be the case the Supreme Court takes up.

  • 40. scream4ever  |  January 7, 2015 at 4:00 pm

    I'm thinking they will consolidate all the 6th Circuit cases like they did in Windsor and hear them together.

  • 41. Wolf of Raging Fires  |  January 7, 2015 at 4:01 pm

    I hope you're right. That's what I want.

  • 42. Wolf of Raging Fires  |  January 7, 2015 at 4:05 pm

    I'm impressed. Too bad it probably won't even get a chance to be ruled on.

  • 43. StraightDave  |  January 7, 2015 at 4:17 pm

    Unless they each present some unique issue, that would seem like overkill. I thought Windsor was a single case, with all the other DOMA cases put on hold and denied cert en masse at the end of June. I would expect them to take DeBoer plus the minimum needed to cover all the rest of the issues. Need at least one to cover recognition, which perhaps makes the adoption and death certificate ones moot as separate issues. 4-5 redundant cases cluttering up the court is not likely.

  • 44. sfbob  |  January 7, 2015 at 4:22 pm

    While what you say is most certainly true it is a matter of historical fact that religion-based arguments have ended up being persuasive in any number of contexts, at least in an interim basis. Prior to Loving vs Virginia, the prosecution of the Lovings was upheld by the Virginia Supreme Court in a ruling which included explicitly religious language to justify and uphold the state's ban on interracial marriage. And this was coming not from a religion-based client or attorney but from a state supreme court justice!

    Religious arguments can and do find their way into legal briefs and even into court rulings. There MAY even be situations where such arguments are not only relevant but legally compelling (see for example the UCC's successful argument against North Carolina's marriage equality ban).

    In general, and I presume this is the basis of the request, what we've mainly seen is thinly or heavily disguised arguments that use a SPECIFICALLY sectarian argument as the basis for upholding bans on marriage equality. In other words, the argument amounts to "our church believes it's wrong; therefore it IS wrong and that is sufficient reason for upholding the ban." The arguments often proceed into overreach by claiming not just that a particular religion opposes marriage equality but that all "real" religions do as well. This is of course a demonstrably false claim but it continues to be made constantly…though less so in a courtroom setting than in the media.

  • 45. SoCal_Dave  |  January 7, 2015 at 5:02 pm

    The thing is, Josh Weed emphatically states he is not bisexual, that the only woman he is attracted to is his wife. (whatever that means). I know the show is not about the Weeds but they seem to be the template or inspiration. In the trailer for the show, none of the guys say they are bisexual either.

    There is a lot of concern among disaffected mormons that this show will be used as an example of how to handle "same sex attraction". But after watching the trailer, to me it looks like it will be another sort of eye-rolling voyeuristic spectacle like many other TLC shows. I don't think the participants understand what they are getting themselves into. I feel sorry for them, but they are adults and about to learn a lesson.

  • 46. RnL2008  |  January 7, 2015 at 5:06 pm

    I get it…..NONE of them want to be LABELED as ANYTHING, but straight men, and frankly I don't have an issue with what grown consenting adults choose to do…….what DOES concern me is that folks will see this show and somehow equate that we ALL make a conscious choice and that's an OUTRIGHT lie… least that's my take on it.

  • 47. DrBriCA  |  January 7, 2015 at 5:10 pm

    Actually, UCC v. Cooper was THE case used to overturn the NC ban. There was another case that was further along (then on hold pending a decision with Bostic for VA), but after the Oct 6 cert denial for Bostic this ruling became delayed when several lawmakers tried to intervene in the case. The judge presiding over the UCC case, Judge Cogburn, was able to slip in a ruling based on the new 4th Circuit precedence, and then the other case was ruled on the next day, also discarding the ban.

    Judge Osteen in the other case did in fact allow the lawmakers to intervene just prior to ruling the ban unconstitutional, and so they are pursuing appeals through the 4CA and SCOTUS.

    Thus, the UCC case did get a ruling and was actually THE ruling to bring ME to North Carolina!

  • 48. FredDorner  |  January 7, 2015 at 5:40 pm

    "Bonus if the arguments they answer are discernibly religious."

    I'm actually going to recommend the opinion of a state district court in Virginia from 50 years ago, as it makes the issue much more clear:
    "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

    Read the 1965 Loving v Virginia ruling where the judge refuses to reverse his previous ruling which convicted the Lovings, and then the supreme court ruling in the 1967 Loving v Virginia to learn why our courts today ignore religious arguments as completely irrelevant to secular legal issues. Religious arguments are an offense to our secular constitution…..and are often proof of unconstitutional animus against a minority.

    By the way the Lovings were originally sentenced in 1959 on January 6th, the day marriage equality finally reached all of Florida.

  • 49. DACiowan  |  January 7, 2015 at 5:57 pm

    Any word on the Missouri federal case? I know the state is not opposed to the 8th Circuit lifting the stay.

  • 50. VIRick  |  January 7, 2015 at 6:18 pm

    Yes, it did, indeed! And as you point out, without any recourse for appeal by any last-minute, grandstanding "intervenors."

    I love this case precisely because it is so up-side-down from the "usual."

    Specific denominations sued the state for restricting and criminalizing their own free exercise of the First Amendment, while wisely including argument concerning Due Process and Equal Protection.

    The NC law and the NC consitiutional amendment were so poorly-written by the fundie bible-beaters who foisted it off onto an ill-educated public that the NC Attorney-General refused to defend it. Judge Cogburn's ruling, in turn, was a major slap-down of one narrow "religious" segment attempting to force its will onto everyone.

  • 51. brooklyn11217  |  January 7, 2015 at 6:34 pm

    Good luck getting into the Supreme Court for the arguments. I bet people will be camping out on the sidewalk for a least a week! Maybe if you are a member of the SCOTUS bar, or a journalist with credentials, it will be easier.

  • 52. VIRick  |  January 7, 2015 at 6:45 pm

    Completely off-topic:

    Nepal to Allow for a Third Gender on Passports

    The Nepalese government is to issue passports with a third gender option (hijra or transgender) for citizens who do not identify as male or female. Nepal joins neighbor, India (Supreme Court of India in April 2014 recognised hijra and transgender people as a 'third gender' in law), as one of the few countries that allow for a gender other than male or female to be listed in identity documents. Australia and New Zealand also allow people to be listed as “x” in their passports.

    Chief of the passport department, Lok Bahadur Thapa, stated, “We have changed the passport regulations and will add a third category of gender for those people who do not want to be identified as male or female.”

    While being gay is still illegal in Nepal, it looks to be progressing towards greater rights for sexual minorities as the country prepares its first constitution since the end of the monarchy in 2008. Activists say that discrimination against LGBT people is still widespread, but hope that this move will be a positive step forward. Leading LGBT rights activist Pinky Gurung said: “It is a very progressive move, and we welcome it.”

  • 53. Wolf of Raging Fires  |  January 7, 2015 at 6:47 pm

    I've never been so happy to be wrong! Thank you.

  • 54. SoCal_Dave  |  January 7, 2015 at 6:48 pm

    Totally agree, Rose. There are some inaccurate and dangerous messages that can come out of this.

  • 55. A_Jayne  |  January 7, 2015 at 7:06 pm

    In addition, wasn't Amendment 1 on a primary ballot when (R) races were hotly contested and (D) races were not? The result being that (R) voters went to the polls, but (D) voters not so much, and a very small percent of voters actually passed the amendment…

  • 56. Samiscat1  |  January 7, 2015 at 7:07 pm

    I've been interested in this very question for some time: what, exactly, is the nature of the sheep's clothing. Have a look at this dissent from Straub in Windsor v. United States in the 2nd Circuit:

    All the gender roles and accidental procreation stuff is there, but if you search for the word "holy" you will find it twice, and once quickly followed by "reverent." The arguments may not be religious per se, but their cloaking in occasional religious discourse shows that belief system straining to keep itself hidden.

  • 57. VIRick  |  January 7, 2015 at 7:40 pm

    Yes, correct on all points. Voter turn-out was appallingly low.

    In the UCC suit, the plaintiffs used the First Amendment of the US Constitution to successfully challenge (and thus overturn) Amendment 1 of the North Carolina state constitution.

  • 58. RnL2008  |  January 7, 2015 at 7:46 pm

    And That's my concern.

    Hugs to you and your husband:-)

  • 59. DrBriCA  |  January 7, 2015 at 7:59 pm

    Raga had mentioned last week when I had asked the same thing that they just finished briefing on the stay last week. (The request wasn't an 'emergency request,' so it went through the normal, slower process.) The plaintiffs did send the 8th Circuit notification about SCOTUS on Dec 19 allowing the Florida stay to expire, so the 8th is aware that SCOTUS is now okay with marriage equality after a district-level decision (and clearly one with MUCH more resistance from the AG and gov than in Missouri).

    So it now just depends on whichever panel is reviewing the request. It would be great to get the answer in before SCOTUS grants cert to a case and most other federal ME proceedings freeze!

  • 60. bythesea66  |  January 7, 2015 at 8:12 pm

    I dunno. I think there would be a possibility the panel would see the writing on the wall now and perhaps vote the right way, but SCOTUS will almost certainly take a ME case soon and they won't get the chance anyway.

  • 61. VIRick  |  January 7, 2015 at 8:51 pm

    I've already stood at the plaintiffs' dais in the chambers of the US Supreme Court and rather eloquently (if I may say so myself) presented my arguments in favor of Marriage Equality. I was allowed 5 minutes.

    And although there were many other people in the same chambers at the same time, my eloquence was presented during the Court's summer recess in 2013, the week after the "Windsor" and "Hollingsworth" decisions were announced, as we chose to stay on in DC after that momentous "Decision Day," and revel in the glory. So, the nine seats facing me across the room were empty.

    Still, it was an incredible experience to be able to stand in the exact spot from which those cases were argued, and present some of the same argument, even if no one were there filling those seats, facing me, to listen.

  • 62. StraightDave  |  January 7, 2015 at 9:16 pm

    The 6th certainly failed to see that same writing, so I wouldn't trust the 5th either. But it wouldn't shock me if they sat around Fri afternoon taking bets on whether SCOTUS will grant cert and whether they should even bother taking a vote on their own cases. They could easily wait a day, enjoy the weekend, and go have a beer.

  • 63. Zack12  |  January 7, 2015 at 9:21 pm

    No surprises there.
    Straub is a life long Democrat but he is also a devout Catholic and it's clear from his dissent that he can't leave his religion at home while doing his job.

  • 64. RnL2008  |  January 7, 2015 at 9:21 pm

    The Florist out of Washington who refused to provide flowers for a Gay couple getting married appears to be on the losing side of another anti-discrimination ruling:

  • 65. Zack12  |  January 7, 2015 at 9:27 pm

    INdeed, the few judges that have ruled against us have made it clear they feel all the other judges have gotten it wrong and they are the only ones who are right.
    They don't care that they are going to get overturned, they truly don't.

  • 66. scream4ever  |  January 7, 2015 at 9:37 pm

    It was pretty obvious based on the wording from the 6th Circuit ruling that they penned it months before releasing it (I believe they still said that only 19 states had marriage equality) and simply didn't care/want to change it.

  • 67. RnL2008  |  January 7, 2015 at 9:41 pm

    I know and folks believe that SCOTUS will uphold the ruling from the 6th, while overturning the other rulings in our favor….or at least they are hoping that's the way it's gonna go and frankly, I DON'T truly see that happening.

  • 68. Deeelaaach  |  January 7, 2015 at 10:30 pm

    While it is true that such marriages do exist, I have a feeling that the execs at TLC don't understand quite how the both the subject matter and the title of their show in particular makes a mockery of the vast majority of LGBT lives and marriages, regardless of intent. It (likely) says to the public that being LGBT is a choice, even if the show's creators provide the counterpoint of a short blurb at the beginning or end saying that these marriages are the exception rather than the rule. It says that we really can make a simple choice to marry someone of the opposite sex and thus reinforces the idea that we are messed up in the head for being attracted to the same sex. While that may be true of a very small majority, it misrepresents the majority of LGBT lives. Given the sensational title of the show, I too have to wonder what TLC's true intent in showing this is – beyond the obvious motive of ratings.

    I'm waiting for TLC to present a show about four married same sex couples, where one of the spouses identifies as straight – and where the show is titled "My Husband Is Not Straight." That show would be seen as a mockery of heterosexual lives and of marriage in general, and would imply to the public that though they are straight, they too could make a simple choice to marry someone of the same sex.

    But somehow I think I hear crickets chirping.

  • 69. DrBriCA  |  January 7, 2015 at 10:39 pm

    I think the 19 states comment then was Sutton saying something along the lines that all states that have gone to ME since October were forced to based on the cert denial, whereas the first 19 states were more or less voluntary. I remember reading it at the time and thinking how it wasn't really an accurate portrayal of the events leading to the first 19 states anyway. It glosses over episodes like Christie's veto getting in the way of the legislative process Sutton loves so much and Christi's initial pursuit of appeal, or even that no one would've foreseen Iowa being one of the first states to have ME. A good number did come through legislation and votes, but court orders still gave us the first few states. The statement back then also overlooked states like Nevada, which was starting its slow process to repeal the ban but instead was much happier letting the Ninth Circuit toss the ban post-Oct 6 so that it could start bringing in marriage revenue from LGBT couples as well.

  • 70. VIRick  |  January 8, 2015 at 12:17 am

    "…. Christie's veto getting in the way of the legislative process Sutton loves so much …."

    Precisely, and thus that veto destroys Sutton's foolish rantings about the "legislative process and the will of the people." The same situation also occurred in Maine when the ass-hat Governor LePage thwarted Maine's legislative process with a veto, and promised to keep vetoing anything and everything. And Rhode Island had a problem with a governor who would only sign a "Civil Union" bill, and threatened to veto anything else.

    Furthermore, when the state supreme courts in Massachusetts, Connecticut, Iowa, and New Mexico overturned their state bans, that wasn't necessarily a direct expression of "the legislative process and the will of the people" either.

    Good point about Nevada, too. Sutton never mentioned that,– perhaps he wasn't even aware,– or simply didn't care. Actually, that situation (of allowing the 9th Circuit Court to untangle the mess) clashed with his own ideology, and thus, in his mind, had to be ignored.

  • 71. Pat_V  |  January 8, 2015 at 12:28 am

    With all the discussion about the different situations in Florida counties, I was wondering about how things are doing on the ground? Specifically, do we have an idea of:
    – how many counties have issued marriage licenses?
    – how many counties have not issued marriage licenses because there was simply no same-sex couple requesting any?
    – how many counties have refused to issue marriage licenses? (i guess there are none?)

  • 72. Pat_V  |  January 8, 2015 at 12:32 am

    It's been a while since we last heard of the Kansas situation. How many counties are still refusong to issue licenses to same sex couples?
    And what's up with the case to finally force the whole state to follow the law? It's been so long already! Cant there be a quick "clarification" from the judge, like in Florida?

  • 73. VIRick  |  January 8, 2015 at 12:54 am

    See the last posts on the previous thread, "Florida Marriages are Happening," for some very preliminary analysis of the 28 most-populous counties, all of which issued marriage licenses. And so did Monroe, Putnam, Flagler, and Nassau counties, making 32 for certain, at the very minimum.

  • 74. bythesea66  |  January 8, 2015 at 1:10 am

    Worse than the hold-out counties are the state agencies refusing to comply. Hopefully that will be taken care of when the judge clarifies later.

  • 75. Zack12  |  January 8, 2015 at 2:37 am

    I wouldn't hold our breath on the 8th circuit.
    Next to the 5th and 6th, it is the most conservative circuit out of all of them.

  • 76. 1grod  |  January 8, 2015 at 6:41 am

    On Dec 23 Kansas Equality Coalition said 54 of 105 Kansas counties were issuing marriage licenses to same-sex couples. Those counties are home to 2.2 million of the 2.9 million Kansans, which means 76% of all Kansans live in a county that is currently known to be issuing licenses. The decision on whether to issue marriage licenses to same-sex couples has been left to the individual chief judges of the 31 Kansas judicial districts. Seventeen districts have said yes.

  • 77. Sagesse  |  January 8, 2015 at 6:42 am

    Nerd alert. As we wait for the SCOTUS conference tomorrow, Linda Greenhouse has a profile of Sam Alito, the conservative justice we don't talk about so much. Scary. For example, he doesn't consider professional associations as providing evidence in their field of expertise, but rather as elite lobby groups.

    It’s All Right with Sam [New York Times]

  • 78. Pat_V  |  January 8, 2015 at 6:49 am

    Oh yeah, I see that Wikipedia has a nice county-by-county map of Kansas:
    It's odd that there are almost 30 counties for which the situation is unknown: although they might be small counties, I was expecting this information should be known – for example by phone inquiries.

  • 79. Zack12  |  January 8, 2015 at 6:50 am

    Truly a vile man, one whom we will sadly be stuck with for the next 20-30 years.
    Same with many of the other judges George W put on the courts.
    It really is a shame Democrats didn't start putting younger liberals on the courts until the past year or so which was too little too late.
    As it stands, many of the judges Obama put on various circuits are eligible for senior status (a form of semi-retirement) because they are 65 or older.
    Most of the judges George W put on the courts won't be eligible for another 5-10 years and in some cases for another 15-20.
    The fact we are still dealing with judges from the St.Ronnie era tells you all you need to know about how successful Republicans have been at putting young conservatives on the courts where they will impact our lives for decades.
    Like many other things such as elections on the local and state level, Democrats are behind Republicans, and we will all be paying for that for the next 25-30 years.

  • 80. efrogers1  |  January 8, 2015 at 6:57 am

    Oh, dear, I wish I hadn't added the context. Of course religious arguments have no place in civil courts, but they show up anyway; and when they show up, judges seem to be better than others at exposing what's wrong with them, at least at the moment. Students do better with variety–different genres of reading–and the legal arguments will give them a break from the religious ones. If you want to know about religious arguments, see _Sexuality and the Christian Body._ If you want to know a little about how they influence the courts, see _Aquinas and the Supreme Court_ (main title by the publisher; my title would be what's now the subtitle). Here's the last thing I'd like to know: can somebody remind me which opinion has the line about how the Constitution removes certain things from discussion by majorities? Thanks everyone for your help.

  • 81. Raga  |  January 8, 2015 at 7:05 am

    Regarding the amended lawsuit, there was a telephonic status conference not long ago, and I believe briefing is scheduled to be completed by the end of January.

  • 82. Raga  |  January 8, 2015 at 7:09 am

    Ditto what DrBriCA says. I thought the state was not opposed to the stay as well, but in the last minute, according to PACER, they did file a response in opposition – what is curious though, is that their response only argues against expediting the appeal and mentions not a single word about vacating the stay!

  • 83. DaveM_OH  |  January 8, 2015 at 7:11 am

    SCOTUSBlog's "Petitions to Watch" feature for today includes the 5 cases we're watching, and lists the questions presented by petitioners. It's now my belief that SCOTUS will grant cert to more than one case in order to deal with all the questions together. I'd WAG that DeBoer, Bourke, and Obergefell all are grants, consolidated for oral arguments.

    I've grouped cases by the key issues under consideration:

    Foreign Recognition:
    Robicheaux v. George
    Bourke v. Beshear
    Tanco v. Haslam
    Obergefell v. Hodges

    Robicheaux v. George
    Bourke v. Beshear
    DeBoer v. Snyder

    Obergefell v. Hodges

    Tanco v. Haslam

    Explicitly overruling Baker v. Nelson:
    Tanco v. Haslam

  • 84. Eric  |  January 8, 2015 at 8:13 am

    The original quote is from:

    West Virginia State Board of Education v Barnette, 319 US 624, 638; 63 S Ct 1178; 87 L Ed 1628 (1943)
    compared with Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996) reveals – "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election."

    It was cited in the Prop 8 decision and a number of other marriage cases.

  • 85. Sagesse  |  January 8, 2015 at 8:26 am

    Would it be helpful to preface the discussion with a general overview of the doctrine of 'separation of church and state'? Then you can look at the cases you choose in relation to the stated or implied reading of that doctrine in making or evaluating the arguments? Since the blatantly religious arguments have mostly been driven underground at this point, this might be another way to surface the question you want to look at.

  • 86. wkrick  |  January 8, 2015 at 8:31 am

    The "majority" that voted in Amendment 1 was less than 21% of the total registered voters in NC. I really think that amending the state constitution should be held to a much higher standard and require at least 50% of the TOTAL registered voters to vote yes.

  • 87. A_Jayne  |  January 8, 2015 at 8:44 am

    I wholeheartedly agree.

  • 88. Raga  |  January 8, 2015 at 8:50 am

    I'm skeptical they'll take on more than two cases (DeBoer and Bourke/Love should be sufficient), but I do agree with you that Tanco doesn't stand a chance, mainly because it is a preliminary injunction appeal, which the court rarely entertains, and certainly not when there are obviously superior vehicles for them to address the same issues.

    Whatever they do, I wish they'd grant cert tomorrow, rather than relisting (which could be a possibility if they think they need more time to decide which case(s) offer the best vehicle).

  • 89. Raga  |  January 8, 2015 at 8:59 am

    Briefing schedule issued in Arkansas appeal (federal, Eighth Circuit):
    Opening Brief (Appellant): 2/17
    Response Brief (Appellee): 30 days from filing of the opening brief
    Reply Brief (Appellant): 14 days from filing of the response brief

    No action has been taken yet on the Missouri appeal regarding vacating the stay. Nor has a briefing schedule been issued (presumably, the clerk is waiting for a decision on the motion to expedite), despite the Missouri appeal having been filed weeks before the Arkansas appeal. It'll be interesting to see if they put that appeal on a parallel track with the Arkansas appeal. Then, when SD comes along, that can be expedited and added to the same track.

  • 90. RemC_Chicago  |  January 8, 2015 at 9:31 am

    Yes, the anti-gay folks would be having a fit if a show appeared putting us in a positive light. The issue for a lot of people is not about simply not liking the idea of the show and choosing not to watch it. It is the real harm that is perpetuated when the false message is broadcast that being gay is something you can choose or ignore or change. That's the same basis behind the dangerous ex-gay so-called therapies and the same subtle message behind attacks like what happened in Philly on Sept 11: gays are bad.

  • 91. DaveM_OH  |  January 8, 2015 at 9:38 am

    Bourke and DeBoer won't get you adoption recognition, based on the official Questions Presented from the cert petitions – which is why we might see Obergefell as well, limited to the question of adoption. (n.b. this is something SCOTUS can and does do – "Certiorari is granted but limited to Question 2", etc.)

  • 92. RemC_Chicago  |  January 8, 2015 at 9:40 am

    Apparently, 1000 licenses were issued in the state on the first day. I haven't heard of any county refusing to issue one.

  • 93. RemC_Chicago  |  January 8, 2015 at 9:42 am

    Good! Thanks for posting the update, Rose.

  • 94. Raga  |  January 8, 2015 at 9:48 am

    Why wouldn't adoption automatically follow from marriage recognition and licensing? Is it due to some quirk in Ohio law specifically?

  • 95. JayJonson  |  January 8, 2015 at 9:50 am

    Latest number I have seen is almost 1400 licenses issued from 28 largest counties. From LGBT Nation:

  • 96. Sagesse  |  January 8, 2015 at 10:11 am

    An alternative Catholic view on ME in Florida:

    Column: Church needs patience, humility in light of same-sex marriage [Tampa Bay Times]

    Bishop Robert N. Lynch leads the Diocese of St. Petersburg, which includes the 432,000 Catholics in Pinellas, Hillsborough, Pasco, Hernando and Citrus counties.

  • 97. StraightDave  |  January 8, 2015 at 10:12 am

    You are right, but only on the assumption that the recognition and licensing appeals succeed. Technically, the court might have to allow for the possibility of adoption having to stand on it own merits. They might choose to moot the adoption appeal after deciding the other cases, but certainly not before.

  • 98. guitaristbl  |  January 8, 2015 at 10:19 am

    I would wish we would have a decision out of the district court in South Dakota before SCOTUS grants cert but it seems unlikely now :-\ Arkansas seems like a lost cause for now…

  • 99. Raga  |  January 8, 2015 at 10:20 am

    Well, then DeBoer and Obergefell should cover everything. No need for Bourke/Love.

  • 100. Zack12  |  January 8, 2015 at 10:56 am

    Sutton basically ignores anything that doesn't fit with his right wing views, one of the reasons so many different groups fought against him getting on the 6th circuit to begin with.

  • 101. wes228  |  January 8, 2015 at 11:07 am

    The Rhode Island Governor did not threaten to veto marriage equality legislation. He did sign the state's marriage equality bill into law.

  • 102. KnottiBuoy  |  January 8, 2015 at 11:29 am

    I wonder if the show is actually a spin off from American Horror Story? According to the SL Tribune the show and its participants are being portrayed like a carnival act. Apparently mixed orientation marriage supporters have decided to become compensated carnival barkers. The marketplace will determine the success or failure of their program. I hope they are pleased with the outcome. They are being held hostage by religious ideology. Therefore, mixed orientation marriages and their relationships will always be suspect. The only way to empirically prove otherwise is to remove the religious doctrine being held and pointed at their head, then all can see what relationship choices are made. I really do respect ones constitutional right to make relationship choices for all the wrong reasons, people do it all the time.

    In fairness, the TLC DVD needs to play all the way to the end so to speak. if we accept that 80% of Mixed Orientation marriages end in divorce, like any kind of investment with those odds of loss, some might at least think it's prudent to raise an eyebrow. A novel investment should include a fully disclosed prospectus. Where is the discussion of bi-sexuality? Where is the other side of the story presented for a balanced view? Where is the independent evaluation or analysis by main stream medical and psychological organizations? Where is the data and statistics on failure rates presented? Where is the honest independent discussion or empirical analysis about the viability of their marriages. Something akin to a fair and level playing field analysis without dogma controlling outcomes. Let's examine Episcopal, Unitarian and Quaker religious views. Where are those mixed orientation marriages that might support claims about the success and joy and happiness that comes from these arrangements? Exactly how do they rationalize or explain away the difference? The answer to the last question may be found here:

    From the LDS church newsroom regarding the TLC special:

    “The decision for a woman and man to marry is deeply personal. While the Church does not promote marriage as a treatment method for same-sex attraction, couples who are trying to be lovingly supportive of each other while being true to their religious convictions deserve our support and respect.”

    In other words, mixed orientation marriages cannot survive without being held hostage to religious dogma. By the way, our hands are clean of any adverse outcome. Nice spin!

    Moreover, if it's eternal salvation they are after, perhaps the problem isn't with their sexual orientation but with the wrong religion.

  • 103. Mike_Baltimore  |  January 8, 2015 at 11:39 am

    In my view, one of the main problems is that most people think reality shows are exactly that – reality. They ignore that the shows are scripted. If the people would stop and think about it, how many times does a real-life conflict last EXACTLY 60 minutes (the typical length of 'reality shows')?

    Similar to those who watch the WWE – they think all the 'wrestlers' are actually wrestling on that show. They tend to get upset when told the 'wrestlers' are actors, and the 'matches' are scripted. For several years, WWE didn't appear in New Jersey because New Jersey has some strict laws governing athletes (such as a mandatory physical during a specified time prior to the event), and the WWE didn't want to abide by those laws. Eventually, the WWE admitted that the 'wrestlers' were in fact actors, and the WWE admitted that the 'wrestling shows' were staged, not real, and a different set of laws covered WWE events in New Jersey as soon as the WWE admitted the 'wrestlers' were actors, not athletes.

  • 104. VIRick  |  January 8, 2015 at 11:41 am

    Up-Date on Las Vegas and Same-Sex Marriage after 3 Months

    LAS VEGAS — Clark County NV has hit the 1,000 mark in issuing marriage licenses to same-sex couples. Since early October, the county’s Marriage License Bureau has issued nearly 19,500 licenses, including those for same-sex couples, which thus comprise just over 5.1% of the total during that 3-month interval. All told, it typically issues more than 80,000 marriage licenses annually.

    Las Vegas bills itself as the marriage capital of the world. Same-sex couples made up a little more than 10 percent of couples who obtained marriage licenses around the state in the first week after the same-sex marriage ban was dissolved in Nevada on 9 October 2014.

  • 105. MGinPA  |  January 8, 2015 at 11:46 am

    Aren't we also expecting a decision from Missouri State Supreme Court, which would moot the federal case? I think the Arkansas Supreme Court will probably rehear the case or wait for the 8th Circuit and/or SCOTUS to rule. I think we are also expecting rulings from ND, SD and NE at district level. I don't think we'll get anything out of GA, AL or the 5th and 1st Circuits either if SCOTUS takes up a case.

  • 106. hopalongcassidy  |  January 8, 2015 at 11:53 am

    I and my friends think of him and another one as Siamese twins, so we call either one or both by the same moniker: Scalito.

    (I think it's okay to use Siamese now since it doesn't exist any more…but I think Thai twins has a kinda neat ring to it.) 😀

  • 107. Mike_Baltimore  |  January 8, 2015 at 12:01 pm

    The 'Advocate' has an article that gives a brief philosophical and political bio of each of the three judges on the panel. According to the 'Advocate' (and many commenters here at EoT), the 'swing' vote will be Higginbotham with Smith an almost certain 'no' vote for GLBT rights, and Graves an almost certain 'yes' vote for those rights.

    The opening line of the article begins with "Sparks may fly in court. . . ."

    The URL to the article is:

  • 108. RnL2008  |  January 8, 2015 at 12:02 pm

    I do my best to help keep others as informed as I am:-)

  • 109. BillinNO  |  January 8, 2015 at 12:29 pm

    Considering there are quite a number of Out-of-Town folks with us for the 5th Circuit Party, its a shame the Court didn't move the hearings to the Steamboat Natchez and commission that vessel to cruise back and forth along the wharves during the hearings. It would have made a nice change too for the reporters who must find all those courtrooms REALLY boring after a while. If the judges had asked nicely they might even have gotten them to play the calliope during the slow parts. It probably never even occurred to them…

  • 110. bythesea66  |  January 8, 2015 at 12:34 pm

    Yeah, now I think AR will have to wait for SCOTUS to rule nationwide, though technically the AR Supremes could still rule before then.

  • 111. VIRick  |  January 8, 2015 at 12:38 pm

    Married same-sex spouses of Florida state employees are now eligible for state coverage for health insurance and retirement benefits.

    The "Miami Herald" reports that Suzetta Furlong, operations chief of the Florida Department of Management Services, made the announcement in a memo to state agency and university personnel officers and benefit coordinators. Furlong issued the memo on Tuesday, 6 January 2015, just hours after the federal judge’s ruling striking down Florida’s same-sex marriage ban came into effect, the first tangible sign that the state government has accepted that same-sex couples can be legally married in Florida.

    Also on 6 January, State Retirement Director Dan Drake notified Florida Retirement System members they could now include their legal same-sex spouse as a beneficiary for their retirement plan. The state of Florida employs approximately 162,000 workers.

  • 112. VIRick  |  January 8, 2015 at 12:46 pm

    Also, buried in the numbers, it's important to remember that couples from Georgia, Alabama, Mississippi, Louisiana, and Arkansas were also married in Florida on Florida's first day, given that out-of-staters are not subject to Florida's 3-day waiting period. Plus, we can expect that same-sex couples from all over the Deep South will continue to flock to Florida to be legally married there, and will do so at their own earliest convenience/opportunity, a factor which will continue to inflate Florida's numbers. In particular, keep an eye on Escambia County (Pensacola/Century), the new marriage capital of westernmost Florida.

  • 113. Raga  |  January 8, 2015 at 1:14 pm

    There are two cases now at the Missouri Supreme Court: (1) The Court heard oral arguments on December 3 in In re Marriage of M.S. and D.S. and we're waiting on a ruling, but it is a divorce case where the Court could rule narrowly without striking down the ban. Listen to the oral argument here. (2) The other is a very fresh appeal in State of Missouri v. Jennifer Florida which targets the marriage ban directly. The lower circuit court struck down the ban on November 5, and Missouri announced that it will appeal to the Missouri Supreme Court, while not seeking a stay in the meantime. I cannot find conclusive evidence online that the appeal has even been docketed or briefing has commenced. It could take months before oral argument and a decision.

    There are two federal lawsuits in North Dakota: (1) Jorgensen v. Montplaisir is a recognition case where the motion to dismiss and motion for summary judgment have been fully briefed and awaiting oral argument or a ruling without oral argument. The judge assigned to this case is a George W Bush appointee, Ralph Erickson. He referred the case to magistrate judge Karen Klein, who is retiring in a couple of days (according to Judgepedia). Not sure what will happen next. (2) Ramsay v. Dalrymple is both a recognition and a right to marry case, handled by the same pair of judges as above. Briefing on motion to dismiss and summary judgment were completed in September. There has been no docket activity since then. Not sure why there is so much delay.

    The federal case in South Dakota is Rosenbrahn v. Daugaard, where the judge denied the motion to dismiss on November 14. A final decision on the merits is expected at any time.

    In Nebraska, there is a state court case Nichols v. Nichols where a divorce was denied and an appeal was dismissed by the Nebraska Supreme Court last summer for lack of jurisdiction. Not sure what happened after that – whether there was another proper appeal or not.
    The federal case in Nebraska, Waters v. Heineman is coming up for a hearing on a preliminary injunction motion on January 29. The case is assigned to Senior Judge Joseph F. Bataillon, who was the same judge that struck down Nebraska's marriage ban about 8 years ago.

  • 114. Raga  |  January 8, 2015 at 1:20 pm

    Yes, there is a state constitutional issue before them in addition to the federal claim. So they could rule on that independently of what SCOTUS does.

  • 115. StraightDave  |  January 8, 2015 at 1:44 pm

    Exactly!! That's my bet.

  • 116. hopalongcassidy  |  January 8, 2015 at 2:39 pm

    Is the Creole Queen still afloat? They could tow it behind with Dixieland bands alternating with the calliope, and Hurricanes from Pat O'Brien's for the media and interested parties. (emphasis on parties) hahaha

    I would definitely pay for that!

  • 117. davepCA  |  January 8, 2015 at 2:57 pm

    Meh. To me, this looks like just more of the usual hand-wringing nonsense, stemming from the church's hubris and extremely self-centered views on issues that have absolutely nothing to do with the church. They still fail to admit that their personal religious views have nothing to do with the topic of the constitutional compliance of secular civil marriage laws.

    Religious groups sometimes perform a purely symbolic ceremony to 'bless' a civil marriage. Just as they sometimes 'bless' the opening of a new bridge, or a new school. This doesn't in any way mean that the church controls civil marriage laws, or the bridge building industry, or our public education system.

    While 'patience and humility' are good, what they really need is HONESTY about these facts, and HONESTY about the needless harm they have been causing, followed by cessation of their efforts to harm and denigrate gay citizens with their repeated attempts to meddle in our secular civil laws that have NOTHING to do with the church. The answer to their question 'what should the church DO about same sex couples getting a civil marriage certificate??' is simple – NOTHING.

  • 118. davepCA  |  January 8, 2015 at 3:00 pm

    I do like the way you guys think…..

  • 119. Mike_Baltimore  |  January 8, 2015 at 3:14 pm

    There could be some quirk in Ohio law.

    For instance, Indiana and Wisconsin both denied ME prior to 10/6. However, in Indiana, two people, even if not married, could adopt a child. In Wisconsin, adoption could only be done by one person, or if the two people were in a 1 man/1woman marriage.

    I have no idea, though, of how adoptions in Ohio might be handled. Similar to IN, or similar to WI, or differently to either?

  • 120. VIRick  |  January 8, 2015 at 3:33 pm


    Ryan/Brandall, have you seen this adorably cute couple, one pair of 7 plaintiff couples in the "Robicheaux" appeal from Louisiana?

    Now that Aaron Huntsman has been taken, I think I'm in love again, especially with Andrew Bond on the left. White picket fence and all, indeed. Wow!

  • 121. Sagesse  |  January 8, 2015 at 3:45 pm

    I ahould have been more clear. I posted this to compare/contrast with the Miami bishop who threatened to fire any employee of the dioscese who takes a position that's tolerant of LGBT rights, including marriage.

  • 122. DrBriCA  |  January 8, 2015 at 3:55 pm

    Of course, there's always the fear of pushing SCOTUS too far. They may be ready to tackle the marriage question at last, but piling adoption rights as well could be pushing it. It'd be wonderful from our perspective to get adoption secured (and heightened scrutiny, for that matter), but let's first win this marriage battle finally, since adoption should fairly quickly follow afterward.

    The Lawrence v Texas lawyers knew not to push for marriage or heightened scrutiny in order to win Kennedy and O'Connor back in 2003. And yet with that ruling, Massachusetts secured marriage equality just months later!

  • 123. VIRick  |  January 8, 2015 at 3:57 pm

    Yes, but "Bourke/Love v. Beshear" provided us with the most memorable quote when Judge Heyburn, after trashing the state defendants' very lame "pro-creation as supportive of Kentucky's economic well-being" argument, then issued forth with the astute observation, "These arguments are not those of serious people."

    I want to see Scalia do his histrionic argle-bargle on that.

    So, I vote for "DeBoer v. Snyder" plus "Bourke/Love v. Beshear," with "DeBoer" being a near-certainty.

    On the point of adoption, the "DeBoer" case began as a second-parent adoption suit which Judge Friedman then requested be expanded into its present format. Nevertheless, April DeBoer and Jayne Rouse are still looking for the right to allow for second-parent adoption under Michigan law. So, in some form, adoption rights need to be included in one or more of the cases being granted certiorari.

    All of these are old cases, too, originally filed in 2013, and decided at the district court level fairly early-on in 2014. But still kicking around, while so many others have passed them by.

  • 124. hopalongcassidy  |  January 8, 2015 at 4:05 pm

    You can not have Andrew. I claim dibs based on seniority if his marriage doesn't last.

    ah, shit, I can dream, can't I?….

  • 125. tornado163  |  January 8, 2015 at 4:37 pm

    Doesn't DeBoer get at adoption, seeing as how the lawsuit was originally against Michigan banning same-sex adoption before the judge told them to expand the lawsuit to include banning same-sex marriage.

  • 126. ebohlman  |  January 8, 2015 at 4:51 pm

    Marriage law and family law (including adoption) appear to be unusually tightly coupled in MI, to the extent that it was impossible to challenge the discriminatory aspects of the adoption law alone.

  • 127. VIRick  |  January 8, 2015 at 4:57 pm

    Ah Hop, you have no idea how I melt like butter whenever I hear all that sweet , innocent honeysuckle charm that drips from their lips, especially if they're from Louisiana or south Georgia.

  • 128. ianbirmingham  |  January 8, 2015 at 5:00 pm

    Marco Rubio: Let’s put gay couples’ civil rights up to a popular vote

    Florida senator and potential '16 hopeful blasts court rulings in favor of marriage equality

  • 129. sfbob  |  January 8, 2015 at 5:05 pm

    It could well be that the judge felt that if April and Jayne had been legally married there would not even be a reason for a lawsuit–given that marriage is marriage and there's no conceivable way the state could create "classes" of marriage for adoption purposes (though of course KS seems to be doing just that for all sorts of purposes)–so the best way to attack the adoption ban was to attack the marriage equality ban.

  • 130. sfbob  |  January 8, 2015 at 5:12 pm

    It would not be unprecedented for the court to combine three or more cases. Brown vs Board of Education combined five different lawsuits from four states and the District of Columbia. I don't know if the current court would be willing to do something that dramatic but then again, they also might not view it as dramatic. In fact I would think that if they combine a number of different cases that might well indicate they might want to make a comprehensive ruling (and I can't help thinking that the only motive for going that direction would be to make a comprehensive decision in our favor).

  • 131. RnL2008  |  January 8, 2015 at 5:13 pm

    Hey, why DON'T we put all of the Civil Rights up for a vote that heterosexuals take for granted………that's a stupid as what the moron from Florida stated……by the way, he has as much chance of representing the GOP for a bid to the White House as I do….lol!!

  • 132. brandall  |  January 8, 2015 at 5:21 pm

    I looked too quickly "on the left" and became very concerned I was going to have to call Child Protective Services….then I realized you were referring to the 2nd person from the left. We need to find you a husband of your own!

  • 133. brandall  |  January 8, 2015 at 5:30 pm

    Mr Rubio: Certain states in this country would love to deny any benefits, including legitimate work, to anyone who speaks with an Hispanic accent whether they are here legally or not. We would then almost immediately see "Perfect English Required" laws embedded into State consitutions because it is the "will of the voters"….You know, it's been already tried and thrown out by the same court system that is now tossing out the ME bans. But, obviously you have not learned very much U.S. history or intentionally forgotten certain parts of it.

  • 134. brandall  |  January 8, 2015 at 5:40 pm

    Georgia: Federal Judge Refuses to Dimiss ME Lawsuit

    I do hope these cases continue and do not get put on hold because of SCOTUS cert decisions.

  • 135. RnL2008  |  January 8, 2015 at 7:23 pm

    Well, even in Georgia it appears that Marriage Equality will be heading that direction soon:-)

    I wonder what the AG is reviewing? The fact is that the AG is probably using the same old tired and worn out arguments that have failed in the past…… hard is that to figure out?

  • 136. RnL2008  |  January 8, 2015 at 7:29 pm

    California voters approved with like 60% Prop 63 or 64 that was to make the State an English Speaking State only……..did those who filed lawsuits take the "WILL OF THE VOTERS" view under consideration? Nope and neither did the CSSC……..NEVER even made it to law…..the same with Prop 187, again voters approved of this Proposition, but a minority group felt it was aimed at them, INSTEAD of ALL illegal immigrants, filed a lawsuit and it also got tossed before being enacted, but NOT one person ever CONSIDERED the "will of the voters"….but when Prop 8 was challenged, OMG, the "WILL OF THE VOTERS" should have been taken into consideration…….funny how that works…..NOT!!

  • 137. galen697  |  January 8, 2015 at 7:38 pm

    I hate to throw cold water here, but after reading the ruling, I'm not at all confident that this case will go in our favor going forward. The judge clearly is not convinced by most of the Plantiffs' claims, writing that "The Court declines to extrapolate a fundamental right to marry a person of the same sex from the line of Supreme Court decisions discussed above. The Court concludes that the Supreme Court's decisions regarding the fundamental right to marry are confined to members of the opposite sex", and spending 10 pages or so disregarding the majority of the Plaintiffs' remaining claims (sex discrimination, heightened scrutiny, etc.). Fingers crossed going forward.

  • 138. RnL2008  |  January 8, 2015 at 7:42 pm

    I disagree with you. Gays and Lesbians are NOT looking for the right to "SAME-SEX" marriage…….Gays and Lesbians are looking for the same FUNDAMENTAL RIGHT to marry that opposite-sex couples enjoy……and though it was NEVER state to apply ONLY to opposite-sex couples, SCOTUS knows that laws can NOT be made to apply to ONLY a particular group of individuals!!!

  • 139. guitaristbl  |  January 8, 2015 at 7:53 pm

    That does not say much. He just wants to rule against ME, something Feldman did as well in Louisiana. Well he is a bit late to the party though I believe and hope. He will have to rule based on soon established SCOTUS precedent on the issue.

  • 140. Ryan K (a.k.a. KELL)  |  January 8, 2015 at 7:53 pm

    I'm a sucker for accents period (other than my Midwestern one)… British though does the trick every time!

  • 141. RnL2008  |  January 8, 2015 at 7:57 pm

    I totally agree with ya…….by the time Georgia get's around to ruling on Marriage Equality, SCOTUS will probably have already had oral arguments and we will be waiting on the ruling!!!

  • 142. Ryan K (a.k.a. KELL)  |  January 8, 2015 at 7:58 pm

    I wish the clerk for the 11CA would hurry up and schedule Brenner! Although I still imagine everything in all federal cases comes to a standstill once SCOTUS grants cert tomorrow or next Friday.

  • 143. galen697  |  January 8, 2015 at 8:19 pm

    I agree with you- I was just quoting from the ruling. And to be honest, this ruling is a reason why I'm hoping that Bondi presses forward with FL's appeal to the 11th circuit, so that that circuit can weigh in with a hopefully favorable ruling that will give some precedent for judges like this one to pay attention to.

  • 144. RnL2008  |  January 8, 2015 at 8:22 pm

    No worries, I hadn't read the actual ruling, just that the Judge wasn't dismissing the lawsuit.

  • 145. galen697  |  January 8, 2015 at 8:24 pm

    Yeah, reading the whole ruling paints a much more pessimistic picture, IMO.

  • 146. RnL2008  |  January 8, 2015 at 8:34 pm

    Well, at this point, there probably won't be a ruling from Georgia until after SCOTUS rules in June……at that point, they will correct whatever ruling they MIGHT have made because there is a strong possibility/probability that SCOTUS will overturn the remaining bans!!!

  • 147. VIRick  |  January 8, 2015 at 10:11 pm

    Here's what I wrote about the pending Georgia case on a different website on 23 December 2014:

    "District Court Judge William Duffey, who is presiding over the lawsuit, "Innis v. Aderhold," which seeks to overturn Georgia’s same-sex marriage ban, has been sitting on court documents since the lawsuit was filed in April 2014 by Lambda Legal. Georgia Attorney-General Sam Olens has asked for a motion to dismiss, while Lambda Legal has filed additional documents citing other same-sex marriage victories as to why the case should move forward.

    Judge Duffy is not viewed as being even the slightest bit pro-marriage, as indicated by his past judicial record and by the fact that this pending case has not moved forward in months, despite its sweeping nature as a putative class-action suit. This is the first new post made (on 23 December 2014) in reference to the Georiga case in 4 months, and continued inaction is about all that can be detected and reported."

    Finally, today, 8 January 2014, Olens' "Motion to Dismiss" was dismissed, and the case can now proceed.

    It might also be worth noting that Tara Borelli, the plaintiffs' counsel in the successful Nevada suit, "Sevcik v. Sandoval," the most-impressive presenter at the oral argument hearing before the 9th Circuit Court of Appeals, has recently joined the legal team of Georgia Lambda Legal as plaintiffs' counsel in "Innis v. Aderhold."

  • 148. VIRick  |  January 8, 2015 at 10:50 pm

    Mike, I can't answer for Ohio, but the current Michigan law still matches with what you described as to what Wisconsin once had.

  • 149. Raga  |  January 8, 2015 at 10:55 pm

    Oh, but did you read it to the end? Yes, the judge did reject almost everything favorable to the Plaintiffs, but he left intact a narrow path to success – striking down the ban on rational basis review based on sexual orientation discrimination. Here is what he says under the last subsection:

    Defendants argue that Georgia’s prohibition on same-sex marriages, and its refusal to recognize same-sex marriages performed in other States, is rationally related to the State’s interests in encouraging procreation and child welfare. Defendants contend that the State has a legitimate interest in “encouraging the raising of children in homes consisting of a married mother and father;” “ensuring legal frameworks for protection of children of relationships where unintentional reproduction is possible; ensuring adequate reproduction; fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; and exercising prudence before departing from [the traditional] definition of marriage…” These conclusory assertions are not supported by specific facts.

    While the State is not required to produce evidence that “sustain[s] the rationality of a statutory classification,” the asserted State interest “must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe. Although the Court affords deference to the legislature to determine whether a law is rationally related to a legitimate State interest, the State may not “rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary and irrational.” City of Cleburne, Texas v. Cleburne Living Ctr. At a minimum, the Court is required to “insist on knowing the relation between the classification adopted and the object to be obtained” to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer. Defendants’ Motion to Dismiss the Amended Complaint does not address how Georgia’s asserted interests in child welfare and procreation are advanced by the State’s prohibition on same-sex marriages, and the State’s refusal to recognize lawful marriages performed in other States.

    The Amended Complaint specifically alleges that prohibiting same-sex marriages harms the State’s interest in child welfare, and that the exclusion does not offer a conceivable benefit to children of opposite-sex couples. It contends that scientific consensus shows that children raised by same-sex couples are as well-adjusted as those raised by opposite-sex couples. It asserts further that excluding same-sex couples from marriage humiliates their children, and denies those children the ability to understand the integrity and closeness of their own families without offering any conceivable benefit to the children of opposite-sex couples.

    I'm not saying that this means there is a reasonable chance that he will strike down the ban eventually – just that he is keeping that narrow window open for some reason, instead of going all the way and making this a final order – he did all but that, didn't he?

  • 150. RnL2008  |  January 8, 2015 at 11:08 pm

    Well at least it's moving forward at a snails pace, but moving……my guess is a ruling will NOT come before June of this year as it is obvious by the stand still over the last 4 months…..ugh:(

  • 151. F_Young  |  January 9, 2015 at 12:20 am

    A New Virginia Bill Would Let Schools, Hotels, Restaurants, and Hospitals Turn Gays Away

  • 152. bythesea66  |  January 9, 2015 at 12:34 am

    I think it would be unlikely even if he weren't obviously dragging his feet. It will be something when they finally rule, won't it?

  • 153. RnL2008  |  January 9, 2015 at 12:37 am

    By the time this Judge get's to making a ruling on the issue before them, my guess is that SCOTUS will have already heard oral arguments and overturn the remaining bans before this Judge even get's to scheduling briefs.

  • 154. RnL2008  |  January 9, 2015 at 12:40 am

    These idiots just DON'T learn……..these bills allow discrimination just to a particular minority and SCOTUS has ruled previous that laws CAN'T be made if they are ONLY going to affect one particular minority like Gays and Lesbians……..more lawsuits will be filed and this time around, there will be NONE of this WE DIDN'T makes these laws because of ANIMUS towards Gays and Lesbians, but that argument will fail because it's OBVIOUS why these idiots are even attempting this garbage!!!

  • 155. bythesea66  |  January 9, 2015 at 12:57 am

    There will be an onslaught of nutjob bigot bills in backlash to our winning ME and other advances. The good news is that most of these won't stand up to court scrutiny at all, and there is a decent chance to stop many of them from being passed (though of course some will be).

  • 156. netoschultz  |  January 9, 2015 at 2:22 am

    The Equality Governor won't sign it

  • 157. RQO  |  January 9, 2015 at 5:57 am

    I'm late to this party, but your's is a great question. Several commenters suggest Posner's 7th Circuit decision (and good, blunt, read), and ijsnyder suggests pairing with the Wisconsin opinion by Judge Crabb. That might be too much for a quick 2 week course segment, but at the time we all hailed Crabb's ruling as being the most comprehensive, hit all the points, totally devasting ruling to date.
    But TDGrove's suggestion of BeBoer (Michigan, Judge Friedman) may be best. It was a TRIAL at which religiously affiliated "experts", most famously Marc Regnerus, wearing tons of sheep's clothing, gave testimony which was carefully cross examined, and then totally dismissed as bogus in the judge's opinion. This trial evidence was a breakthrough of immense importance in ME litigation. You could say the sheep's clothing got sent to the cleaners.
    Someday one of the Utah and Idaho (Mormon theocracy) states' DEFENSE attorneys may write a book about how they chose and framed their arguments, purely sheep's clothing, and why they think they lost. Then you will have the perfect text for your course.

  • 158. MichaelGrabow  |  January 9, 2015 at 6:08 am

    I would like to agree, but I am not too encouraged after this:

  • 159. JayJonson  |  January 9, 2015 at 6:19 am

    Actually, there was a Rhode Island governor who was fiercely anti-gay, Republican Donald Carcieri, who served from 2003 to 2011. He made no bones about his opposition to same-sex marriage. He was replaced by Independent Lincoln Chafee, who was in favor of same-sex marriage and ultimately signed the same-sex marriage bill into law. It was obvious that the civil unions law was not successful because Rhode Islanders could easily marry in Massachusetts. Thanks to a ruling from the Rhode Island Attorney General, Massachusetts same-sex marriages were recognized by Rhode Island. Hence, Chafee framed his support of same-sex marriage as both in the interest of fairness and equal rights, but also in the interest of helping the beleaguered RI economy by keeping money that was being spent in Massachusetts in the state.

  • 160. JayJonson  |  January 9, 2015 at 6:23 am

    I suspect that the St. Petersburg bishop will also fire any employee of the diocese who takes a position that is tolerant of LGBT rights, only he will do so with patience and humility and more handwringing than the Miami bishop.

  • 161. Zack12  |  January 9, 2015 at 6:49 am

    Donald Carcieri was a vicious homophobe and proud member of NOM.
    Even if he hadn't been, marriage equality still wouldn't have happened because (Democrat) Senate President Teresa Paiva Weed was also opposed to gay marriage as well as the House Leader (I can't remember his name.)
    Bottom line, from 2003-2011, equality of any kind in Rhode Island was NOT going to happen.

  • 162. Zack12  |  January 9, 2015 at 6:51 am

    Even if he were, the animus behind this bill is obvious and it won't stand.
    And the 4th circuit is no longer a conservative hellhole, it is now Obama's court and a bill like this won't survive.

  • 163. guitaristbl  |  January 9, 2015 at 7:29 am

    But the courts should strike down ACA according to Rubio. So the courts should be striking down only laws Rubio does not like, all the others are by definition constitutional. Sounds legit for a florida republican.

  • 164. guitaristbl  |  January 9, 2015 at 7:31 am

    So arguments in the 5th started half an hour ago and the SCOTUS conference starts now ?

  • 165. RemC_Chicago  |  January 9, 2015 at 7:32 am

    I was so appalled by this that I wrote to him—knowing full well that I was spitting into the wind and told him so—to explain how embarrassed I was as a Cuban-America by his ignorance of how our system of government works. For added measure, I included a copy of Judge Hinkle's ruling with the relevant references to the issues Rubio brings up highlighted in bright yellow. A friend of mine bumped into him at a supermarket in Miami and began to give him a piece of his mind. Rubio started to walk away until my friend pointed out that he was a constituent and insisted that Rubio listen to what he had to say.

  • 166. Zack12  |  January 9, 2015 at 7:40 am

    That has been the goal of all Republicans.
    Stack the courts with Republicans in robes who will only strike down laws Republicans don't like.
    Everything else, you need to go to the voters or legislatures.

  • 167. RQO  |  January 9, 2015 at 7:40 am

    "Nutjob Bigot Bills". VERY catchy – love it. Perhaps we can popularize the phrase as successfully as "special rights" was decades ago.

  • 168. Raga  |  January 9, 2015 at 8:08 am

    Chris Johnson tweets that he predicts the 5th will strike down marriage bans 2-1:

  • 169. Raga  |  January 9, 2015 at 8:10 am

    More tweets coming in… Looks like both Higginbotham and Graves "peppered Louisiana with questions of how same sex marriage could harm opposite sex unions":

  • 170. Raga  |  January 9, 2015 at 8:12 am

    "Judge Higginbotham, the swing, seemed not only skeptical of Louisiana's defense of same-sex marriage ban, but amused by it."

  • 171. guitaristbl  |  January 9, 2015 at 8:17 am

    And suddenly we wish this panel had the time to rule before SCOTUS lol !

  • 172. guitaristbl  |  January 9, 2015 at 8:27 am

    Any news on what Smith said during the arguments in the Louisiana case ? That would be amusing as well..!

  • 173. samg68  |  January 9, 2015 at 8:27 am

    SCOTUS can always relist, and I suspect they might do if the ruling from the 6th begins to look very lonely…

  • 174. JayJonson  |  January 9, 2015 at 8:40 am

    Glad to get this good news!

  • 175. F_Young  |  January 9, 2015 at 8:45 am

    Seriously, we need to challenge the "religious freedom" terminology that the bigots promote, and call these laws "special right to discriminate laws."

  • 176. SethInMaryland  |  January 9, 2015 at 9:11 am

    Graves suggested fears of SS marriage silly: "Because we don't know, we should fear the unknown, and therefore we should ban it."

  • 177. SethInMaryland  |  January 9, 2015 at 9:12 am

    Higginbotham just owned the procreation arguement:Higginbotham said sexuality immutable, no bearing on contribution to society. Asked why sterile couples can wed if procreation is issue.

  • 178. Zack12  |  January 9, 2015 at 9:12 am

    I would say I still hope SCOTUS will simply grant cert and end this.
    Because that 2-1 ruling in our favor will go en banc before you can blink and instead of writing a dissent, Judge Smith will be writing the majority option upholding the bans.
    There is simply no way for a favorable ruling in the 5th and 8th circuit to survive without SCOTUS.

  • 179. SethInMaryland  |  January 9, 2015 at 9:14 am

    they may not have enough time though to pusole an enbanc

  • 180. wes228  |  January 9, 2015 at 9:14 am

    By the time en banc comes up for a vote, the Supreme Court will have granted cert to a 6th Circuit case. I'm hoping that enough judges on the 5th will let sleeping dogs lie and deny the en banc, even if they disagree with the panel decision.

  • 181. Raga  |  January 9, 2015 at 9:16 am

    I wish the 5th, given the time the panel has already invested in reading briefs, oral argument, etc., would still go ahead and hand down a quick positive ruling before SCOTUS oral arguments, and then the en banc request (if the States are clever enough to take that approach instead of direct SCOTUS cert) will go nowhere – SCOTUS will rule by that time!

  • 182. wes228  |  January 9, 2015 at 9:16 am

    However, the mandate doesn't typically issue until en banc has been denied or else the time to petition for en banc expires. A favorable decision from this panel will likely not go into effect until the 5th has had time to vote on an en banc hearing.

  • 183. SethInMaryland  |  January 9, 2015 at 9:20 am

    i wish they would kinda go with the ruling at the last sec favorable ruling, no stay,

  • 184. Zack12  |  January 9, 2015 at 9:28 am

    I can see Judge Smith taking his sweet time writing the dissent, that is what these bigots have often done to delay a favorable ruling.

  • 185. Raga  |  January 9, 2015 at 9:38 am

    That rule can be exempted. The 9th Circuit issued the mandate immediately. (It recalled it the next day wrongly interpreting that Kennedy's temporary stay was a rebuke.)

    Even otherwise, as soon as a positive ruling comes down, this same panel will vote 2-1 to vacate the stays on a motion, even before the mandate issues. (The 9th vacated the Hollingsworth stay well before the Supreme Court judgment became final.)

  • 186. guitaristbl  |  January 9, 2015 at 9:40 am

    Smith gave a hard time to Kaplan apparently on the DOMA ruling.

  • 187. wes228  |  January 9, 2015 at 9:40 am

    Issuing the mandate right away caused a lot of confusion. We'll have to wait and see, but I think that this panel won't be so hasty to implement their ruling.

  • 188. guitaristbl  |  January 9, 2015 at 9:49 am

    The 5th issued a special announcment with rules/procedures for the marriage cases on its main page :

  • 189. Zack12  |  January 9, 2015 at 9:53 am

    No surprises there, after all he is the no vote.

  • 190. hopalongcassidy  |  January 9, 2015 at 10:09 am

    So that's 3 hours total plus 2 'short recesses'…should be finished right about now, 12:13 pm, right?

  • 191. guitaristbl  |  January 9, 2015 at 10:10 am

    Actually, according to freedom to marry, arguments for the Texas case started about 10 min ago..

  • 192. SethInMaryland  |  January 9, 2015 at 10:14 am

    Higginbotham was really getting tough on the state lawyers in Miss

  • 193. davepCA  |  January 9, 2015 at 10:14 am

    Dang it I really wish we had a NEW ARTICLE for these comments now that this is underway. It's going to get really hard to find the new replies buried under all of the collapsed threads…..

  • 194. Raga  |  January 9, 2015 at 10:16 am

    That's the schedule, but the time can be extended by the panel for any reason at their discretion. The Fifth Circuit abortion case oral argument two days ago lasted 75 minutes, instead of the scheduled 40 minutes.

  • 195. DaveM_OH  |  January 9, 2015 at 10:17 am

    Chris Geidner went dark at 12:39 EST; expect him to tweet again when it's over, maybe about 12:45 CST.

  • 196. hopalongcassidy  |  January 9, 2015 at 10:18 am

    Ah, okay thanks

  • 197. hopalongcassidy  |  January 9, 2015 at 10:18 am

    Thanks, been looking for audio, I guess it'll be another hour or so….thanks.

  • 198. deppykins  |  January 9, 2015 at 10:18 am

    Your donation dollars hard at work.

  • 199. Raga  |  January 9, 2015 at 10:20 am

  • 200. wes228  |  January 9, 2015 at 10:22 am

    Oral arguments haven't even concluded yet…cut them some slack.

  • 201. hopalongcassidy  |  January 9, 2015 at 10:22 am

    Seems like Scottie could do that from NOLA…but I guess he's in the courtroom…hopefully soon.

  • 202. SethInMaryland  |  January 9, 2015 at 10:24 am

    the texas case is not even over yet

  • 203. DeadHead  |  January 9, 2015 at 10:27 am

    Quote of the day: "You don't need an incentive to have sex." – Higginbotham on Mississippi's claim that SSM ban incentivizes procreation

  • 204. davepCA  |  January 9, 2015 at 10:28 am

    Agreed, Wes. It wasn't meant to imply anything against the EoT staff, just some wishful hindsight on my part. Not ok, deppykins.

  • 205. Zack12  |  January 9, 2015 at 10:29 am

    I will say after being right on the 6th (even though I didn't want to be), it's nice to be proven wrong.
    Never ever thought I would hear the words ban and struck down coming out of the 5th circuit.

  • 206. davepCA  |  January 9, 2015 at 10:30 am

    Huh? What are you hearing exactly??

  • 207. SethInMaryland  |  January 9, 2015 at 10:34 am

    i think eveyone was iffy about the 5th espically after the 6th,with luck our side draw a posner and not sultton this time

  • 208. Raga  |  January 9, 2015 at 10:40 am

    All three oral arguments have concluded.

  • 209. SethInMaryland  |  January 9, 2015 at 10:42 am

    this opinion in georgia is weird , U.S. District Judge William S. Duffey Jr. said in an opinion issued late Thursday that the couples do not have a fundamental right to marry a person of the same sex, but he disagreed that Georgia’s “interests in child welfare and procreation are advanced by the state’s prohibition on same-sex marriages.” […

    Read more:

  • 210. Mike_Baltimore  |  January 9, 2015 at 10:43 am

    The oldest daughter of my youngest uncle was born (full term) about 5 months after her parents got married.

    I guess marriage didn't enter the picture until the shotgun came out.

  • 211. debater7474  |  January 9, 2015 at 10:45 am

    If the fifth circuit does rule in favor of marriage equality, it may make the sixth circuit extra disappointing because we may have avoided supreme court review altogether if we had simply gotten a better panel in the sixth. On the other hand, en banc overturnal may be inevitable in any favorable ruling out of the fifth circuit, so supreme court review may have been unavoidable.

  • 212. SethInMaryland  |  January 9, 2015 at 10:49 am

    it was inevitable, even if we had won in the 6th, the 5th enbanc and the 8th (probally even more conservative then 5th would have ruled aginst us

  • 213. micha1976  |  January 9, 2015 at 10:49 am

    Go figure!

  • 214. Raga  |  January 9, 2015 at 10:51 am

    First tweet I've seen that is somewhat negative (half and half): "Graves seems open to splitting the baby: recognize out-of-state marriages only."

    Can't wait to listen to the audio to get to the more technical parts like scrutiny, fundamental right, etc!

  • 215. davepCA  |  January 9, 2015 at 10:53 am

    Yeah, like THAT decision would be able to withstand a challenge. Nope.

  • 216. SethInMaryland  |  January 9, 2015 at 10:53 am

    after that tweet though But overall J. Graves & J. Higginbotham seem together on striking bans.

  • 217. SethInMaryland  |  January 9, 2015 at 11:02 am

    i can't wait to hear what Higginbotham all had to say

  • 218. Raga  |  January 9, 2015 at 11:04 am

    SCOTUS issued an orders list just now, but no cert grants:

  • 219. Raga  |  January 9, 2015 at 11:04 am

    SCOTUS issued an orders list just now, but no cert grants:

    Perhaps they're breaking practice and will announce both cert grants and denials on Monday?

  • 220. DeadHead  |  January 9, 2015 at 11:07 am

    That's not good, now I'm getting nervous.

  • 221. davepCA  |  January 9, 2015 at 11:08 am

    Indeed. And here's that familiar feeling of being back on the roller coaster….

  • 222. guitaristbl  |  January 9, 2015 at 11:09 am

    Nothing from SCOTUS today on certs or denials in general. Just a dismissal and some motions.

  • 223. Zack12  |  January 9, 2015 at 11:09 am

    Graves does realize not all couples can afford to drive 500-800 plus miles or are physically unable to do so right?

  • 224. guitaristbl  |  January 9, 2015 at 11:10 am

    I wouldn't worry. By the time there are no certs or denials of cert at all, we should be waiting for Monday I think.

  • 225. Johan  |  January 9, 2015 at 11:11 am

    Well, I guess the staff is still locked in the court room then? Last time people donated for coverage they got nothing of any substance and they got it late. I think deppyykins is well within the limits, since eot staff upped the ante by daring to sollicit donations again, saying "we’ll be there to report on every step in the process," their words not deppykins.

  • 226. Raga  |  January 9, 2015 at 11:11 am

    I can't imagine them not granting cert on a single case out of the 25+ they conferenced today! Guess we'll have to wait till Monday to find out!

  • 227. davepCA  |  January 9, 2015 at 11:15 am

    Yes, and I have no doubt that we'll be getting a ton of good reporting, as we have had on this site for years, since day one of the site. My comment was only about having a separate new article so that the comment count would start at zero again and avoid the thread collapse that happens at 100 comments. That was all. A minor personal preference.

  • 228. davepCA  |  January 9, 2015 at 11:19 am

    Wow, just saw this photo showing a MASSIVE crowd of reporters speaking with the plaintiffs outside the courtroom….

  • 229. FredDorner  |  January 9, 2015 at 11:21 am

    Nothing weird about it – the judge is skeptical of using strict scrutiny regarding a fundamental right but seems open to striking down the ban because it lacks rational basis.

  • 230. Johan  |  January 9, 2015 at 11:33 am

    I know that your comment was only about the collapsed thread, I reacted to you denouncing deppykins. The collapsed thread proves the point. There has been great reporting on this site, mostly in the past during the prop 8 trial (I'm here from the very beginning as well). The commentary is still quite good, but they should stop reporting on site, because they fail. I would expect a post before with a short roundup, some quick remarks during (maybe tweets) and a longer report immediately after.

  • 231. VIRick  |  January 9, 2015 at 11:36 am

    "…. to pusole an enbanc …."

    Ummmmmm,– that sounds a bit too sexually explicit for the 5th Circuit, especially for the two Ediths.

  • 232. Raga  |  January 9, 2015 at 11:40 am

    Lyle from SCOTUSblog:

  • 233. davepCA  |  January 9, 2015 at 11:40 am


  • 234. VIRick  |  January 9, 2015 at 11:41 am

    Correct, Zack. Therefore, don't expect a quick ruling from the 5th Circuit, as it will become hung up and delayed by the dissenter.

  • 235. Zack12  |  January 9, 2015 at 11:42 am

    Indeed, same with the 6th as well.
    Sad to say but George W did a number on the 6th and has made it one of the worst circuits in the country.

  • 236. deppykins  |  January 9, 2015 at 11:42 am

    Plus it's obvious that the people on this site are going to talk about things and try to give updates that they pull from other sources….so an "open post' in the morning for people to speculate, ask questions, and possibly provide updates isn't asking for anything out of the ordinary expectations of the internet. If they're going to ask for donations that are supposed to help out the community, then I am free to criticize them when they don't meet the expectations.

    As for cutting them slack when oral arguments hadn't ended… Again it takes 5 seconds to post "Here is an open thread to discuss today's oral arguments" and could have been done prior to going into the court.

    Now I remember why I never post here.

  • 237. davepCA  |  January 9, 2015 at 11:44 am

    I can't see how to do that – when I click on the MP3 link it just opens in a tiny window & starts playing, with no new URL shown. If you go to that 5th Circuit link (which is the one found in a comment way up at the top of this thread), and select 'Latest Oral Argument Recordings, you should see a list of three recordings. Hope that helps.

  • 238. Raga  |  January 9, 2015 at 11:48 am

    It's weird – I see the links when I opened it in Chrome, but not on IE and Safari. Perhaps it is a cache issue, as I kept hitting refresh for a long time. I've found the specific mp3 links and I'm posting them below on a main thread.

  • 239. Raga  |  January 9, 2015 at 11:49 am


  • 240. VIRick  |  January 9, 2015 at 11:55 am

    "…. Quote of the day: "You don't need an incentive to have sex." – Higginbotham on Mississippi's claim that SSM ban incentivizes procreation …."

    Perfect! I just filed that under the special heading, "Memorable Words of Wisdom," along with Judge Heyburn's reminder, "These arguments are not those of serious people," and Posner's "Go figure."

  • 241. davepCA  |  January 9, 2015 at 11:58 am


  • 242. ebohlman  |  January 9, 2015 at 12:04 pm

    Of course there's Friedman's various descriptions of Regnerus' "work", starting with "entirely unbelievable and not worthy of serious consideration."

  • 243. VIRick  |  January 9, 2015 at 12:08 pm

    "….to drive 500-800 plus miles …."

    Zack, slight re-think. Pensacola is much closer to New Orleans than that.

    On the other hand, how far would it be from Houston TX to the nearest marriage equality state, bearing in mind that, even now, well over half of the marriages between same-sex couples occurring in New Mexico are between residents of Texas who crossed the state line in order to make it legal? Plus, for north Texas, there's Oklahoma, while south Texas has Coahuila, Mexico.

  • 244. palerobber  |  January 9, 2015 at 12:15 pm

    can also be streamed here:

    (may be pulling from same source — not sure)

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