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Quick impressions on today’s hearings in the Fifth Circuit marriage cases: a possible win for equality

LGBT Legal Cases Marriage equality Marriage Equality Trials

In a somewhat surprising three a half hour-long hearing, a three-judge panel of the Fifth Circuit Court of Appeals signaled that it may rule for same-sex couples who are challenging marriage bans in three states. The Fifth Circuit is quite conservative, and the panel that will rule on the marriage cases consists of two judges nominated by Ronald Reagan and one judge nominated by Barack Obama.

The Louisiana case, Robicheaux v. Caldwell, was up first. The federal district court in that case had been one of only a couple of federal courts to uphold same-sex marriage bans.

Camilla Taylor, arguing on behalf of Lambda Legal, pointed out that courts are supposed to be counter-majoritarian, and states can’t use the democratic process to block fundamental rights.

Judge James E. Graves, nominated by President Obama, pressed her to clarify what fundamental right is at issue in the case. She responded that the issue is the “fundamental right to marry” recognized by the Supreme Court. The state in that case has relied on its own interpretation of US v. Windsor and Schuette v. BAMN to suggest the courts should decline to get involved, but Taylor disputed that: Windsor disclaimed a reliance on federalism and Schuette, she said, actually supports court review of issues that conflict directly with the constitution.

Judge Smith, nominated by President Reagan, asked what should be done about Romer‘s reliance on rational basis review, as well as a decision of the Fifth Circuit, Johnson v. Johnson, which also applied that lenient level of scrutiny.

Taylor replied that neither in Romer or Johnson was a decision explicitly made about whether laws that impact same-sex couples and gay people specifically should be held to a higher standard. In both cases, the courts suggested the laws challenged had failed even rational basis review, so there was no need to discuss heightened scrutiny.

She also noted that the Ninth and Seventh Circuits had interpreted Windsor as applying a higher-than-rational-basis review.

But “even under rational basis” the law fails, she argued. Achieving “social consensus” is just a description, not a rationale that serves some independent interest.

As for their other rational basis, connecting children to biological parents isn’t directly related to a same-sex marriage ban, she said. Same-sex couples are allowed to adopt, which she says further erodes a reliance on biological parenting.

Judge Graves asked whether it would be “legally inconsistent” to rule that states have to recognize existing same-sex marriages, but they don’t have to marry same-sex couples. The question came up later in the other cases, and the plaintiffs’ lawyers all pointed to Loving v. Virginia and said that the issues of recognizing and performing are closely linked and the same rationales are used to justify bans on each.

When the state’s lawyer got to the podium, Judge Higginbotham, a Reagan nominee, asked about infertile couples, a theme he would return to throughout the day.

Judge Smith suggested it’s difficult to deal with the broad language of Windsor, which refers to protection of the moral and sexual choices of same-sex couples protected by the Constitution.

Judge Higgnbotham made several possibly revealing comments throughout the hearing: He asked “what is the justification” for even using sexual orientation as a classifier, since it’s “not relevant” to anything.

He pressed this argument repeatedly, pointing out that intellectual disability may be relevant to goals a state wants to achieve, but not sexual orientation.

One of the most telling comments came from Judge Higginbotham at the end of Louisana’s presentation. He bluntly said that “there’s no fit” between the same-sex marriage ban and the reasons for the ban offered by the state.

It seemed clear that two judges, Higginbotham and Graves, were inclined to side with same-sex couples. Judge Smith didn’t seem overtly hostile, but he strongly pressed the idea of looking at the cases using only a lenient rational basis lens. Overall, it was a relatively low key day of hearings, with the biggest surprise being Judge Higginbotham’s pretty clear support for the plaintiffs.

Of course, as Judge Smith noted, “this could all be moot” soon, if the Supreme Court takes up a case.

EqualityOnTrial will have more coverage of this soon, and of course we will have our live chat to discuss the case at 5PM PST.


  • 1. davepCA  |  January 9, 2015 at 11:57 am

    Listening to the recordings now…..

  • 2. hopalongcassidy  |  January 9, 2015 at 11:58 am

    Well, that gives me some guarded optimism! Now comes the waiting game, to see which comes first…SCOTUS or a decision from the 5th. I can't even begin to guess but it sure seems to me that if 5CA should rule for us first, that would pretty much stick a fork in the remaining bans, n'est ce pas?

  • 3. Zack12  |  January 9, 2015 at 12:06 pm

    Listening to the audio as well.

  • 4. Raga  |  January 9, 2015 at 12:07 pm

    Does someone have alternate download links? They are extremely slow to download, so slow to even stream from the 5CA website.

  • 5. Scottie Thomaston  |  January 9, 2015 at 12:09 pm

    I felt weird even posting the thought that the Fifth might rule for us. But it seemed pretty obvious to me.

  • 6. Tony MinasTirith  |  January 9, 2015 at 12:11 pm

    The audio has been posted!

    However the servers are overloaded right now. Everyone here at EOT and all the reporters must be trying to log into the 5th circuits site.

    Now it looks like the audio clips have been pulled. Maybe overloading the CA5's server. They should be back up soon.

  • 7. Zack12  |  January 9, 2015 at 12:14 pm

    Wasn't able to hear all of it but from what I heard, I'm much more positive with this panel then the 6th, where the only question was how anti-gay their ruling was going to be.
    It's going to be 2-1 in our favor, with Judge Smith choosing to join others on the wrong side of history.

  • 8. guitaristbl  |  January 9, 2015 at 12:15 pm

    I am just using the links from the 5th's site but leave it to load a little bit so that I won't get constant buffering..!

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

    can also be streamed here:

    (may be pulling from same source — not sure)

  • 10. Raga  |  January 9, 2015 at 12:16 pm

    Letter from Plaintiffs in Missouri federal appeal to the Eighth Circuit:

    On December 10, 2014, Appellees/Cross-Appellants filed their motion to vacate stay or, in the alternate, expedite appeal. On December 24, 2014, Appellants filed an opposition that did not provide any statement in opposition to the motion to vacate the stay but argued that the motion to expedite the appeal was premature because the Supreme Court was scheduled to decide on January 9, 2015, whether to grant petitions for writs of certiorari in other cases challenging similar marriage bans. I write to advise the Court of recent developments.

    At this time of the year, the Supreme Court typically announces grants of certiorari the same afternoon as the conference at which the petitions were considered. See, e.g., Order List for Dec. 12, 2014, available at…. This afternoon, the Supreme Court issued orders following today’s conference; the orders did not include any action with respect to the marriage cases. The Supreme Court has not yet announced whether the petitions have been denied or rescheduled for a different conference.

    In light of the Supreme Court’s inaction on the pending petitions for writs of certiorari, Appellees/Cross-Appellants respectfully request a prompt ruling on their motion to vacate stay or, in the alternate, expedite appeal. Appellants have raised no opposition to the motion to lift the stay, and continuance of the stay is particularly inequitable in light of the Supreme Court’s refusal to stay a similar decision in Florida. Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014).

    Moreover, while the motion to expedite appeal has been considered, Jernigan v. McDaniel, No. 15-1022, a similar case arising out of Arkansas, has already received a briefing schedule in this Court. Whether or not the Supreme Court ultimately grants certiorari in another case, there is no equitable reason to hold the current case in perpetual limbo. Indeed, the Fifth Circuit heard oral argument today in similar cases and appears poised to issue a decision without waiting for a merits decision by the Supreme Court, which is unlikely to come any earlier than late June.

  • 11. samg68  |  January 9, 2015 at 12:17 pm

    They didn't hang around…

  • 12. brandall  |  January 9, 2015 at 12:18 pm

    Judge Graves: "All this talk of Baker and the "70's makes me nostalgic for my Afro and 8-track* tapes."

    * a music delivery system before Pandora, before DVD's, before CD's and before cassette tapes. I saw one once in the Smithsonian Museum in DC.

  • 13. Raga  |  January 9, 2015 at 12:19 pm

    Thank you! I checked their source and yeah – they're pulling it from 5CA website too!

  • 14. bythesea66  |  January 9, 2015 at 12:21 pm

    I really hope the lack of action today doesn't mean they will be sending the Sixth Circuit cases back to the Sixth to rule based on precedent, thus setting the example for the remaining Circuits. I suppose national ME would still arrive on a similar time frame that way, but without a definitive ruling.

  • 15. davepCA  |  January 9, 2015 at 12:23 pm

    Alternate SOUNDCLOUD source for the Louisiana audio:

  • 16. samg68  |  January 9, 2015 at 12:23 pm

    Have a feeling that's exactly what's going to happen.

  • 17. palerobber  |  January 9, 2015 at 12:30 pm

    thanks! much better.

  • 18. guitaristbl  |  January 9, 2015 at 12:31 pm

    In a few words "Don't wait for SCOTUS to get everything out of your hands and stop dragging your behinds on this one when you have already scheduled the Arkansas case".

    The only part of the letter I find odd is the last sentence where they assert that the panel in the 5th "appears poised to issue a decision without waiting for a merits decision by the Supreme Court"…What kind of assumption is that ?

  • 19. guitaristbl  |  January 9, 2015 at 12:33 pm

    Thank you so much..! The recordings from the 5th are horrendous and probably overloaded right now..!

  • 20. hopalongcassidy  |  January 9, 2015 at 12:33 pm

    Ahem. The 8 track was invented by my old friend Bill Lear, who also designed the Lear Jet. I still have a working 8 track player and a couple dozen tapes! I don't play them much, my long grey beard gets caught in the machinery…

  • 21. Zack12  |  January 9, 2015 at 12:34 pm

    It would be a waste of time.
    Sutton and Cook will take out the Baker references and simply issue the same 2-1 ruling again.
    And if they go en banc, let's just say George W did a number on that court.
    Sans Helene White, you will have five other George W judges who feel the same way Sutton and Cook do.
    And the sole St. Ronnie and George Sr. judges on there are no prizes either.
    We are not getting a win out of the 6th on remand or en banc so I wish SCOTUS would quit stalling and issue a ruling in our favor once and for all.

  • 22. wes228  |  January 9, 2015 at 12:36 pm

    The orders list always comes out the Monday after the Friday conference.

  • 23. Silvershrimp0  |  January 9, 2015 at 12:37 pm

    I think SCOTUS will take a case and issue a definitive ruling. Marriage equality is in effect in enough states to give them sufficient political cover.

  • 24. hopalongcassidy  |  January 9, 2015 at 12:37 pm

    Not a thing wrong with hoping for the best result while acknowledging the possibility of something less…it keeps us sane and grounded! 😀

  • 25. Raga  |  January 9, 2015 at 12:38 pm

    "to rule based on precedent" – what does that even mean? What precedent has been left out of the discussion in the current Sixth Circuit opinion?

  • 26. Raga  |  January 9, 2015 at 12:39 pm

    Thanks a lot!

  • 27. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 12:40 pm

    Let's recall, the Robert's court in recent years has gone through a practice of relisting a cert petition before approving. They could have easily looked at them all, agreed that cert needs granted, and asked everyone to go off and decide which one(s) are the best vehicle to use for granting certiorari, then come back on the 16th to decide and announce.

    I do not expect to see these cases granted or denied cert on Monday.

  • 28. guitaristbl  |  January 9, 2015 at 12:41 pm

    And some irrelevant but good news : Emilio Garza, a 5th circuit G. H.W Bush appointee who many around here have characterized as a vicious bigot, retired (was a senior) a few days ago !

  • 29. brandall  |  January 9, 2015 at 12:46 pm

    Why do you dye your beard grey?

  • 30. Zack12  |  January 9, 2015 at 12:46 pm

    Good riddance to bad rubbish.
    Even as a senior judge, his last few rulings were to be a vicious right wing hack so I'm glad he is off the bench for good.

  • 31. guitaristbl  |  January 9, 2015 at 12:50 pm

    wow the attorney for the plaintiffs in Robicheaux spoke almost entirely uninterrupted…! Not even Smith could say many things..!

  • 32. brandall  |  January 9, 2015 at 12:50 pm

    I think he's referring to Baker. SCOTUS could do this. But, it would still leave other items out dangling, i.e. constitutional fundament right to marriage.

  • 33. davepCA  |  January 9, 2015 at 12:54 pm

    I noticed that too – it doesn't seem to happen very often, and it's pretty encouraging!

  • 34. SethInMaryland  |  January 9, 2015 at 12:57 pm

    Wooo, you can tell J. Higginbotham supports marriage equality strongly, he even said sexuality is immutable, that almost sounds like he supports lgbt for a long time

  • 35. SethInMaryland  |  January 9, 2015 at 12:59 pm

    you can tell graves hates Baker as well

  • 36. VIRick  |  January 9, 2015 at 1:05 pm

    "…. What kind of assumption is that? …."

    That's their most-positive spin to the matter, in an effort to "push" the 8th Circuit. It's entirely possible (although not overly probable) that the 5th Circuit will go ahead and issue a positive decision without waiting for SCOTUS to issue its decision in late June. Therefore, if the 5th Circuit is not waiting, there's certainly no need for the 8th Circuit to sit around and wait either. Basically put, they're telling the 8th Circuit, lift the stay now. Hear the case on the merits whenever.

  • 37. guitaristbl  |  January 9, 2015 at 1:13 pm

    Ugh Higginbotham is barely heard and I don't think it has to do with the recording, he should be closer to the microphone..! And he is tearing apart the attorney for Louisiana so nicely when he is heard..!

  • 38. VIRick  |  January 9, 2015 at 1:15 pm

    "…. * a music delivery system before …. before …. before …. before …."

    Brandall, thank you for that enlightening historical clarification from yesteryear, via the Smithsonian. Now, stop picking on Hop's long grey beard. Sometimes, it looks quite attractive on distinguished, elderly gentlemen with money.

  • 39. mariothinks  |  January 9, 2015 at 1:23 pm

    A favorable ruling from the 5th, even if reversed en banc, although there's little chance of that happening if SCOTUS grants cert to any of the cases, will put what happened in the 6th circuit to shame.

  • 40. BillinNO  |  January 9, 2015 at 1:23 pm

    To me this reporting has an unreal feel to it- It simply beggars belief that 5CA could throw out the TX,LA and MS bans. Yet it sounds like they very well might- I suppose other people in red states have felt this way after favorable oral arguments. To think that we as a community might be vindicated right here in Louisiana- where we have lost so many fights- where we deal with frequent hate crimes- where we seem to hold almost no influence in the legislature and are held in contempt by all our statewide politicians. Can it even be possible, here, for us?

  • 41. guitaristbl  |  January 9, 2015 at 1:23 pm

    Gosh I expected Smith to be harsh to plaintiffs but he even seems quite skeptical with the state's arguments…

  • 42. hopalongcassidy  |  January 9, 2015 at 1:24 pm

    It saves money on razor blades…

  • 43. VIRick  |  January 9, 2015 at 1:28 pm

    "…. agreed that cert needs [to be] granted, and asked everyone to go off and decide which one(s) are the best vehicle to use for granting certiorari, then come back on the 16th to decide and announce."

    Yes, Ryan, that sounds extremely plausible. I've been quite skeptical, all along, of their making any immediate announcement, given that they really have 7 cases from 5 states from which to choose.

    In a sense, SCOTUS is sounding more like me deciding on a husband. Which one? Which one?

  • 44. davepCA  |  January 9, 2015 at 1:28 pm

    Yes. Even if not right now by the 5th, then soon by SCOTUS.

  • 45. Zack12  |  January 9, 2015 at 1:29 pm

    He did but I still expect him to rule against us.

  • 46. davepCA  |  January 9, 2015 at 1:29 pm

    Just finished listening to the Louisiana recording. I gotta say it sounded pretty encouraging to my ears. Our side was direct and on point, the opposition was doing a whole lot of tap dancing around the issue, failing to provide direct answers to questions from the judges, etc. Going to check out the Texas recording next.

  • 47. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 1:30 pm

    And that Orders list generally contains those which are denied cert, resisted, and where views of the Govnerment (via the Solicitor General) are requested. Granting of cert typically if the afternoon of the conference (not sure if they are also included in the following Monday's Order List as well).

    As a noted upward in this nested threas, more often than not, any grants go through at least one relist, and no chance this is being remanded to the 6CA or denied cert. It was a matter of today (I would have been surprised honestly) or next week, as the court needs to fill out the reminder of the term with granted cases.

    How painful it would be for any case to be in conference at this point and get granted cert only to be scheduled in Oct of 2015 and decided in early 2016.

  • 48. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 1:32 pm

    It's a cop out of massive proportions in this day and age. Obviously the 14th amendment meant jack shit as it relates to the gays back in the 1970s.

  • 49. guitaristbl  |  January 9, 2015 at 1:32 pm

    Well I did not say he will rule in favour of ME, but I expected him to be vicious and I got the feeling he does not have any strong feelings on the issue.

  • 50. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 1:36 pm

    I think it absolutely could, I just caution here – as well as the 11CA – that I can't see any of these appellate courts issuing actually ruling since SCOTUS grants certiorari in a case. Which in some ways would be a shame if we can get a supportive ruling from this panel (although I wouldn't want the en banc process after it).

    I believe you will be vindicated by the Honorable Justice Anthony Kennedy and the progressive members of the SCOTUS.

  • 51. hopalongcassidy  |  January 9, 2015 at 1:40 pm

    Well, I'm pretty sure judges, even federal circuit court ones, read newspapers and watch TV. They'd be hard pressed to ignore the clear track ME is on and I refuse to believe they're impervious to real world evolution. We'll see, I suppose, but right now it looks a lot better than it did a few days or weeks ago (wrt the 5th I mean).

  • 52. guitaristbl  |  January 9, 2015 at 1:40 pm

    Finished the Louisiana hearing as well, unfortunately I don't have the time to hear the rest for now but I don't believe the climate will be much different. The attorney for the plaintiffs was asked very few questions and even those were answered properly, she teared apart the whole 'Windsor is on our side" argument the state relied on, in five minutes at the end and had a confident and well structured speech.
    The attorney for the state was better than others (see sticks and balls Monte etc), I will give him that but when you begin talking and the first person challenging you with Windsor's strict language about dignity is Smith you know you are in trouble. They wouldn't let him breathe, especially Higginbotham who was the most "shamelessly" pro equality one. Graves seemed more moderate, trying to find a middle ground, but I believe and hope Higginbotham will get him to go all the way. As for Smith,..well if he is going to be in dissent (and I would even doubt that now), I would expect a very mild dissent which will also question the assertions of the state. His last point which was countered by Higginbotham was the only point honestly at the Robicheaux hearing that hinted towards opposition to ME honestly.

    All in all that went better than the 10th or 4th I would probably say which is stunning really..!

  • 53. SethInMaryland  |  January 9, 2015 at 1:50 pm

    i wonder if Higginbotham might rule with heightened scrutiny, he sounded that strong in his support of marriage equalityt

  • 54. Zack12  |  January 9, 2015 at 1:51 pm

    Don't feel bad, I don't think any of us saw a favorable ruling coming out of the 5th.
    We basically hit the judicial jackpot again.

  • 55. davepCA  |  January 9, 2015 at 1:52 pm

    BAH! I can't get the Texas recording to work on the 5th Circuit site. Anybody got an alternate link for the audio, which doesn't just try to pull it from that same site?

  • 56. SethInMaryland  |  January 9, 2015 at 1:54 pm

    yes we did, like littery , getting a obama appointie and poser-like conservative on the same panel

  • 57. SethInMaryland  |  January 9, 2015 at 1:57 pm

    smith didn't even seem like he wanted to defend the bans to much

  • 58. RnL2008  |  January 9, 2015 at 2:02 pm

    Thanks folks for all of the comments and information stemming from the 5th today, I'll listen to oral arguments later tonight when there's not so much traffic!!!

  • 59. TimATLGA  |  January 9, 2015 at 2:09 pm

    What're the chances that SCOTUS wanted to hear the 5th circuit oral arguments today before picking a case to grant cert…deciding to do it next week instead?

  • 60. bythesea66  |  January 9, 2015 at 2:10 pm

    Well, I think they may deny the LA case, though perhaps not yet if at all.

  • 61. davepCA  |  January 9, 2015 at 2:12 pm

    I would think very slim, since SCOTUS knows that there is little or no way to be really sure how a circuit court will rule based on what is said (and not said) during oral arguments. If they want to wait based on what some lower court would do, they would be waiting for a decision, not just oral arguments. IMO.

  • 62. bythesea66  |  January 9, 2015 at 2:12 pm

    Excuse me, I used a legal term colloquially.

  • 63. Raga  |  January 9, 2015 at 2:17 pm

    No, I meant, if you look at Sutton's opinion, it is extremely thorough and deals with every single argument (fundamental rights due process, equal protection sex and sexual orientation discrimination) and every single precedent that exists out there (all sister circuit opinions, SCOTUS marriage cases). I was merely wondering out loud why SCOTUS would ask them to do something they've already done!

  • 64. Zack12  |  January 9, 2015 at 2:25 pm

    I'm glad the Baker defense is getting the treatment it deserves.
    It defies logic to say there haven't been developments since then but they still use it.
    Let's hope among other things that SCOTUS makes it clear that it is dead once and for all.

  • 65. 914guy  |  January 9, 2015 at 2:33 pm

    Is there any place to listen to these recordings without them breaking up? It's very frustrating to try and listen to them when they keep cutting out.

  • 66. DACiowan  |  January 9, 2015 at 2:37 pm

    Karma making up for the Sixth.

  • 67. davepCA  |  January 9, 2015 at 2:38 pm

    I found this SOUNDCLOUD recording of one of the three, but not the other two.

  • 68. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 2:45 pm

    I'll be slighted annoyed and agitated if Baker is not expressly overturned. I want to read the same words from Kennedy like he did with Lawrence and Bowers, just with DeBoer (or whichever case is granted) and Baker (although I doubt he will state it was decided wrong back then). You get my point, just want to say that the district court decision is affirmed, the decision of the 6CA is reversed, and Baker is overturned.

  • 69. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 2:46 pm

    Díd ANY of the questions presented to SCOTUS in the petitions for certiorari even ask if Baker should be overruled?

  • 70. davepCA  |  January 9, 2015 at 2:49 pm

    Grr. Everyone on the east cost is getting home from work now and it looks like the 5th Circuit web site is getting jammed again, maybe worse than before. No other sources to listen to the Texas recording?

  • 71. SWB1987  |  January 9, 2015 at 3:03 pm

    What do we think the likelihood will be if the Fifth CA finds the bans to be unconstitutional that it will go en banc?

  • 72. VIRick  |  January 9, 2015 at 3:05 pm

    Ryan, plus, besides being painful, if they wait that long, the DeBoer kids will be old enough to collect Social Security.

  • 73. SWB1987  |  January 9, 2015 at 3:06 pm

    And if SCOTUS does take up a ssm case will the 5th CA not issue a ruling?

  • 74. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 3:13 pm

    I'm 39 and not expecting Social Security to be there for me, I hope those kids aren't banking on it!

  • 75. VIRick  |  January 9, 2015 at 3:28 pm

    "…. where we have lost so many fights- where we deal with frequent hate crimes- where we seem to hold almost no influence in the legislature and are held in contempt by all our statewide politicians. Can it even be possible, here, for us? …."

    Bill, I felt the same way about Florida, particularly when I lived in Jacksonville. And look what happened there. All I can tell you is to hang onto the roller coaster ride, even if you feel as if it's never going to end. And try to exhale once in a while. I got so crazy hyper with Florida near the end of its ridiculous saga, figuring that we only had days before barely sneaking in under the wire.

  • 76. Raga  |  January 9, 2015 at 3:36 pm

    I've downloaded and re-uploaded the audio files to soundcloud. Here's the playlist for the three arguments:

  • 77. VIRick  |  January 9, 2015 at 3:36 pm

    "…. I'm glad the Baker defense is getting the treatment it deserves.
    It defies logic to say there haven't been developments since then but they still use it. …."

    But Zack, they have nothing else to rely on for citation. That's the best they can conjure. It's old, it's worn out, it's not even applicable,– but that's all they have in their defense.

    "…. Baker is overturned."

    Baker is like the Wicked Witch of the West, as sung to the gleefully bouncy beat of the munchkins, and "The Wicked Witch is DEAD!"

    At two different points in the audio, Freedom to Marry is claiming that they found these identical quotes, specifically in reference to "Baker:"

    “There’s been a…change in this…area of human rights & equal protection…since 1975.” — Judge Higginbotham

    “There’s been a…change in this…area of human rights & equal protection in particular since 1975.” — Judge Graves


    “Sexual orientation is an immutable characteristic … it does not come with any disability." – Judge Higginbotham

    "The state [chooses] to confer [benefits of marriage] but that doesn’t justify the denial of the right." Judge Graves

  • 78. Raga  |  January 9, 2015 at 3:41 pm

    My playlist:

  • 79. brandall  |  January 9, 2015 at 4:04 pm

    Touche. Very cute. Thanks, I needed that. I'm having a horrible 2 weeks with bad health problems with my oldest brother and my mother-in-law.

  • 80. VIRick  |  January 9, 2015 at 4:34 pm

    "Emilio and the Two Ediths" (our worst-case nightmare scenario which, thankfully, did not occur) actually sounds more like an up-tempo Salsa group. Now we're just stuck with the "Two Ediths."

  • 81. davepCA  |  January 9, 2015 at 4:36 pm


  • 82. andrewofca  |  January 9, 2015 at 4:40 pm

    Raga you're such a nerd!!! THANK YOU!!! xo

  • 83. Dr. Z  |  January 9, 2015 at 4:49 pm

    Quite likely, unless SCOTUS renders the cases moot. That's the historical pattern for any LGBT-favorable ruling from 5CA. Unfortunately.

  • 84. flyerguy77  |  January 9, 2015 at 4:50 pm

    I TOLD YA GUYS!!!!!!!!!! I had a good feeling about 5th Circuit of Appeals. If they uphold the lower decisions the stay will be lifted by this panel or SCOTUS.. I don't think we don't need to worry about en banc..

  • 85. Raga  |  January 9, 2015 at 4:58 pm

    Yeah, he chimed in here and there, but he was essentially like Cook in the 6th Circuit.

  • 86. brandall  |  January 9, 2015 at 4:58 pm

    You knew Bill Lear? He was a very cool person. Not to mention very smart.

  • 87. davepCA  |  January 9, 2015 at 4:59 pm

    I just found out (by clicking on the link sent to me about the live chat) that the live chat can only be accessed if you already have a Facebook account or a twitter account. I have neither, so I can't access it. Looking forward to reading some comments from you guys here after the live chat to tell me what I missed.

  • 88. guitaristbl  |  January 9, 2015 at 4:59 pm

    Oh I adore Kaplan's passion while she is arguing the Mississippi case !

  • 89. brandall  |  January 9, 2015 at 5:06 pm

    Defendant's could file a motion to delay pending a decision by SCOTUS or they could intentionally take their time until after June.

  • 90. VIRick  |  January 9, 2015 at 5:21 pm

    Brandall, cheer up. Maybe this will make you feel better. It's a picture of all the plaintiffs in the 3 cases before the 5th Circuit. And that's Andrew again in the upper right, with that other guy's hand on his shoulder.

  • 91. Steve84  |  January 9, 2015 at 5:28 pm

    It took a lot of luck to get that panel and it could easily have gone differently.

  • 92. mariothinks  |  January 9, 2015 at 5:32 pm

    Listening to the state lawyer from Mississippi was a real treat as well! What a door-knob!

  • 93. bayareajohn  |  January 9, 2015 at 6:01 pm

    Heh. Newfangled 8-track. The 4-track was good enough back in the day.
    Nice replacement for the under-dash mobile phonograph.

  • 94. guitaristbl  |  January 9, 2015 at 6:11 pm

    Oh coming from out the 5th is the sweetest thing in that : Judge Graves's mockery and total disregard of Baker during arguments of the DeLeon case with the afro joke. Priceless. That's the way this argument should be treated. And I think it was meant to be a witty and appropriate answer to Smith's obsession with Baker, when he has been told over and over again about doctrinal developments and the fact that homosexuality was criminalized almost everywhere in the US back then. I mean how can he say that "the criminalization of homosexuality was not the issue" ?! If someone is penalized simply for living together with someone in a way that implies homosexual relations, how can you skip that and issue an affirmative ruling on the question of whether same sex couples have the right to marry ?! Ugh..

  • 95. Mike_Baltimore  |  January 9, 2015 at 6:15 pm


    It seems Scottie wasn't the ONLY one to come out of the hearing predicting a 'win' for ME in the 5CA. The 'Advocate' has an article about the case, with quotes, from such sources as 'Buzzfeed', the 'Washington Blade', multiple quotes from this site, and more upbeat reporting.
    (… )

    It's difficult for me to believe it also, but then again, strange things have happened before (such as Indiana University's football team once appearing in the Rose Bowl [1968]),

  • 96. davepCA  |  January 9, 2015 at 6:37 pm

    For those of us who could not access the live chat (like me, since I don't have a twitter or Facebook account) anybody want to chime in and let us know what was said and how it went? Thanks!

  • 97. Jaesun100  |  January 9, 2015 at 6:39 pm

    Anyone know the average time it takes to get a ruling out of the 5th Circuit ?

  • 98. guitaristbl  |  January 9, 2015 at 7:03 pm

    9th Circuit denies Idaho's en banc request ! :

    O'Scannlain of course dissented along with Bea and Rawlinson..Bybee seems to have given up.

    25 (!) pages of dissent in an order for rehearing en banc ! O'Scannlain just could not resist telling us his opinion whether he was asked or not ! Gosh I am at the beginning and it's already infuriating..!

  • 99. DaveM_OH  |  January 9, 2015 at 7:11 pm

    Yes, Tanco presented the Question of whether Baker should be overturned.

  • 100. flyerguy77  |  January 9, 2015 at 7:17 pm

    I think its unlikely, I see this happening uphold the lower court's decisions this panel will lift the stay or SCOTUS WILL lift the stay.. based on the recent history SCOTUS HAS been denying stays..

  • 101. RobW303  |  January 9, 2015 at 7:18 pm

    I'm probably reading too much into Graves' comment, but I think he may also have been alluding to another highly charged issue from that age with a direct bearing on these cases: racial discrimination. The "rational" arguments used to justify racial discrimination (or at least to combat corrective steps like affirmative action) were of the same flimsy and disingenuous nature as are being used to justify the state's elective choice to "define" marriage (i.e to pre-emptively exclude same-sex couples from marriage).

  • 102. VIRick  |  January 9, 2015 at 7:19 pm

    Idaho: 9th Circuit Court of Appeals Denies Otter's Demand For En Banc Review

    After referring the issue to the full roster of non-recused judges, the 9th Circuit Court of Appeals has today, 9 January 2015, denied Idaho Governor Otter's demand for an en banc rehearing of his same-sex marriage appeal in "Latta v. Otter." The NCLR reacts:

    “The 9th Circuit Court correctly recognized that there is no need to reconsider the panel’s decision that Idaho’s marriage ban violates basic constitutional guarantees of equal protection. The 9th Circuit’s decision striking down the Idaho marriage ban is consistent with the rulings of three other federal appeals courts, which have rightly concluded that our Constitution cannot tolerate the profound harm that denying same-sex couples the freedom to marry inflicts those couples and their children.”

    Three judges dissented from the majority. The dissenting opinion, which goes on and on for many pages, cites the 1972 "Baker v. Nelson" ruling. Why? Because they have nothing else they can cite.

    It also sounds as if Butch Otter has traded in Gay Otter for Dead Horse.

  • 103. guitaristbl  |  January 9, 2015 at 7:19 pm

    "The healthy, spirited, and engaged debate over marriage policy represents
    the virtues of democratic self-governance. The panel’s opinion shuts down the
    debate, removing the issue from the public square"

    What in this man's sick mind is healthy or spiritied about debates on whether same sex couples should be able to marry ? He lives in CALIFORNIA for god's sake ! No recollection AT ALL of what happened there during the prop 8 nonsense ?

    And he thinks that presenting the 2 of the 3 states where after huge efforts ME was approved by referendum above saves his argument in which way ??! Ugh literally reading that drivel raises my pulses..!

    "Windsor was correct in resting its holding on federalism. In striking down
    the federal legislature’s intrusion into this area of law committed to the states, it
    held Congress to the same standards to which federal courts have long adhered.
    Simply stated: the federal judiciary has affirmatively sought to avoid
    encroachments into state domestic relations policy"

    But Windsor was not decided based on federalism, it explicitly says so in Kennedy's opinion ! Ugh this man is the worst bigot on federal appeals court !

  • 104. RnL2008  |  January 9, 2015 at 7:26 pm

    And it's so pathetic to even use that as an excuse NOT to do your job….things have changed over the last 40 years and to whine but what about Baker just shows in my opinion their animus towards us!!!

  • 105. guitaristbl  |  January 9, 2015 at 7:28 pm

    Also worth noting that Rawlinson, who joined this drivel of a dissent, is a Clinton appointee recommended by Reid.

    oh also the denial includes CPM's petition for Nevada, both were denied under the same order.

  • 106. Ryan K (a.k.a. KELL)  |  January 9, 2015 at 7:37 pm

    So many to choose from, so little time?

  • 107. Raga  |  January 9, 2015 at 7:44 pm

    Even if en banc rehearing was granted and Idaho lost again, Butch Otter would want to waste several hundred thousand more dollars and ask for a rehearing by the full Ninth Circuit. And O'Scannlain would no doubt support that, arguing that this is an "super-exceptionally" important issue.

  • 108. Raga  |  January 9, 2015 at 7:46 pm

    Yes, and the child crying "on cue" bit after the sex incentive was just hilarious!

  • 109. guitaristbl  |  January 9, 2015 at 7:46 pm

    I wouldn't say so. He was insisting stubbornly on Baker again and again and especially the Texas attorney had to repeat the same things at least two times (about doctrinal developments etc) but he did not spare skepticism for the state's arguments. I am sure the Louisiana attorney for the state was surprised when the first person to question him about Windsor in quite an effective way was Smith.

  • 110. Wolf of Raging Fires  |  January 9, 2015 at 7:47 pm

    Wouldn't an unexpected unanimity just put a fire in your soul? It's exciting to think about, but a very small possibility, I know.

  • 111. guitaristbl  |  January 9, 2015 at 7:48 pm

    Well of course the history of racial discrimination was lying in the background of this witty comment imo.

  • 112. Raga  |  January 9, 2015 at 7:49 pm

    According to the 2013 statistics released by, the median time from oral argument to final order for the Fifth Circuit is 1.5 months. This could have changed. The Planned Parenthood case took nearly 3 months last year. I'd expect about 2 months, unless Smith holds it up on purpose.

  • 113. Raga  |  January 9, 2015 at 7:51 pm

    Yes! I am now in the middle of the Mississippi hearing. I had only heard Louisiana at the time I commented. I agree with you he didn't let Roberta get on with her argument and kept bringing up Baker. Did he do that in Texas too? It's next on my playlist.

  • 114. guitaristbl  |  January 9, 2015 at 7:54 pm

    Can someone do that in the 9th ? Request an extra big en banc with all 29 active justices ?

    When will O'Scannlain realize he is almost alone on this subject (and others) in the 9th ? Bybee has given up on the issue, Bea is older than O'Scannlain and I don't think he will be that long around and he is left with his new ally, Rawlinson, who now remembered to dissent when she did not do so when the 3 judge panel established heightened scrutiny for sexual orientation in Smithkline. Even Randy Smith and Clinton appointee Tallman who wrote a scathing dissent along with O'Scannlain on the en banc opinion striking down the immigration law in Arizona (the one on which Thomas later referred to the marriage cases in the order denying a stay there) on the basis of "states rights" did not join him here !

  • 115. Jaesun100  |  January 9, 2015 at 7:56 pm

    Cool, thanks for the information.

  • 116. guitaristbl  |  January 9, 2015 at 8:00 pm

    I finished them sometime ago and he got more tiring on Texas. At the end of the arguments of DeLeon only did Higginbotham question the attorney for the plaintiffs. Oh and the attorney for Texas sounds so cocky while spouting non sensical arguments (I had to re hear some of them in order to figure out if they made any sense and I could not make any out of some of them – especially on the procreation issue) that must have got at least one of the two more sympathetic to ME judges somewhat frustrated.

  • 117. Raga  |  January 9, 2015 at 8:04 pm

    Not much, Dave. Usually, they post the transcript of the Live Chat the next morning, so you may read it tomorrow. There were some questions about how the atmosphere in the courtroom was, how Scottie went in totally expecting to be disappointed by the conservative bashing and was instead pleasantly shocked by how a 2-1 majority in our favor was shaping up.

    Jacob started this whole thought-experiment thing where he asked the participants to discuss what would happen to existing marriages if the Supreme Court upheld marriage bans. Needless to say, not a popular experiment, but I played along and shared my thoughts on the legal challenges if that should happen.

    I also brought up the issue of why, in light of SCOTUS denying the Florida stay, the Mississippi Plaintiffs didn't appeal Judge Graves's stay pending appeal up to SCOTUS asking them to vacate? (The Justices just recently vacated the Fifth's stay in a Texas abortion case, so it is not too radical to ask them to do that.) The Justices' response to such a request would have provided further guidance into their minds on this issue.

    A couple of technical questions about how a cert grant in the coming days would affect the case were also discussed. Can't think of anything else right now…

    And oh, apparently, Jacob is in the market, up for grabs :)

  • 118. VIRick  |  January 9, 2015 at 8:05 pm

    "The panel’s opinion shuts down the debate, removing the issue from the public square."

    If we took just that one sentence of O'Scannlain's as a completely-isolated stand-alone, one would be very hard-pressed to disagree with it.

    He should have re-read what he wrote, and noticed that point himself, after which, he could have simply shut his mouth, in total agreement with himself. Because that's where we are, removing this issue from the public square for good. The debate is over, and has been over with for some time. Get used to it.

  • 119. davepCA  |  January 9, 2015 at 8:08 pm

    Thanks, Raga! And if I may indulge in a bit of shameless self promotion, in case anyone is interested I am also 'in the market, up for grabs'! : )

  • 120. Raga  |  January 9, 2015 at 8:09 pm

    Circuit Rule 35-3 says "in appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc." Not sure if there needs to be a motion by the losing party first.

  • 121. davepCA  |  January 9, 2015 at 8:11 pm

    Indeed. The panel's opinion will be the panel DOING ITS JOB, nothing more, nothing less. It's the reason we have courts in the first place.

  • 122. guitaristbl  |  January 9, 2015 at 8:12 pm

    He begins from totally wrong premises ! Did you read the footnote implying that plaintiffs won't get what they want because that, according to him, is public acceptance ! He is off the point ! A lesbian couple who has a child could not care less about "public support", they do not need someone to dignify their relationship to make them feel good, they need the state to do that by recognizing them as legal parents ! Equal rights are not some pageantry or reality show, it does not involve insecure, self loathing human beings looking for validation in the eyes of bigots like O'Scannlain ! Someone should tell him that HIS opinion for THEIR lives is totally irrelevant ! These are real people, real families that have gone through social hardships and do not need legal burdens on top of that ! Ugh this man infuriates me more than Sutton, Cook, Scalia and Thomas together..! It's downright the most bigoted piece of writing on ME in my opinion since this round of litigition started in December 2013. And the best part is that nobody asked for his opinion ! He was not on the panel, nor on a possible en banc panel ! But he had to deliver it anyway !

  • 123. Raga  |  January 9, 2015 at 8:20 pm

    Elusive Bondi:

  • 124. guitaristbl  |  January 9, 2015 at 8:22 pm

    Want more hypocrisy ?

    a) After he went on and on about the european court of human rights, which he arbitrarily characterizes "liberal", he writes on the footnote :

    "Notwithstanding my views on the applicability of foreign law in the
    analysis of constitutional terms, see Diarmuid F. O’Scannlain, What Role Should
    Foreign Practice and Precedent Play in the Interpretation of Domestic Law?, 80
    NOTRE DAME L. REV. 1893 (2005), marriage is not defined in the U.S.
    Constitution, and it is telling that the ECHR has left such a fundamental issue to be
    resolved by member-states rather than via judicial fiat."

    So he basically says "look I have in the past said that international law has nothing to do with US law but now it works for me and I will refer to international law but I know you will call me out for it so I am saying it myself that I contradict myself and I am an opportunist of law".

    2) Apparently he did learn something from Sutton's failure to do his duty and refering things of law to public opinion, but not quite that well as the following footnote shows :

    "Of course, blind deference to legislative majorities would be an abdication
    of our judicial duty. But, as explained in Part I, no such blind deference occurs
    when inferior courts follow Supreme Court precedent directly on point, the states
    have codified rational and long-accepted definitions of marriage, and the
    legislative process has shown itself to be capable of giving voice (and winning
    results) to both sides of the heretofore on-going conversation."

    Which starts as an effort to explain why referring to majorities is not an abdication of judicial duty but fails to do so after that surprisingly(not) since neither Baker is a good argument of course, nor there is a rationality behind the bans, tradition is not a good argument as Posner has written and as for the "winning results" he presents it as some balanced 50-50 approach (not that if it was it would make the bans constitutional) where opponents and supporters had the same political power and above all, the same results over the years. Which for every person who knows basic calculation, is a blatant lie.

  • 125. guitaristbl  |  January 9, 2015 at 8:29 pm

    Gosh has that ever happened ? Where do almost 30 judges fit ? I suppose some of them are watching the arguments from a stream (like Gould) but still…

    Anyway even if that extreme scenario happened, a MAJORITY of justices voted not to hear this en banc so high chances are they agree with the ruling so even on a full en banc panel, O'Scannlain would at best get the chance to wrote a scathing dissent which he essentially did on today's order anyway !

  • 126. davepCA  |  January 9, 2015 at 8:30 pm

    Hee hee. This gives me the mental image of Bondi hiding in her office, crouched down and peeking over the top of her desk a la 'Kilroy' : )

  • 127. RQO  |  January 9, 2015 at 8:35 pm

    Is that like Archie Bunker and 2 Ejits"?

  • 128. Raga  |  January 9, 2015 at 8:43 pm

    According to Wikipedia, such an extreme hearing has only been requested five times, and it was denied in all those cases (probably because they don't have a courtroom that large!)

  • 129. VIRick  |  January 9, 2015 at 8:57 pm

    Thanks Raga. After ducking out the back doors and/or not even bothering to appear at any number of pre-inaugural activities, thus successfully dodging reporters and reporters' awkward questions, here's the best part, just as I had anticipated:

    "But she did attend her own inauguration, (having previously skipped the inaugural prayer breakfast), 90 minutes later on the steps of the Old Capitol Building. Escorted by her brother, Brad, Bondi …. smiled broadly as she took the oath of office.

    No mention was made of gay marriage during her inauguration. It was held across the street from the Leon County Courthouse, where three hours earlier, gay couples began signing their applications for marriage licenses. Gov. Rick Scott, who has said it's up to Bondi to decide what to do on the issue, also didn't mention the topic in his speech."

    So, there they both were for their simultaneous inaugurations, inanely talking to no one in particular about nothing in particular, while being completely up-staged by far more exciting events, for which they both had a full frontal grandstand view, simultaneously occuring on the front steps of the Leon County courthouse, immediately across the street. And that's why or own Jim Brenner wanted to be across the street from the inauguration, assisting in the up-staging.

    Karma can be such a bitch, can't it?

    Oh, and adding "escorted by her brother, Brad," together with her snot-nosed comment about "gays not being able to form stable, committed relationships," I have a question:

    What ever happened to #3, the "Cayman Islands commitment ceremony" guy? Is he history already?

  • 130. Zack12  |  January 9, 2015 at 9:42 pm

    She was also a possible SCOTUS nominee and might have gotten it if Kagan had said no.
    Thank goodness she didn't, SCOTUS is bad enough as it is.

  • 131. StraightDave  |  January 9, 2015 at 9:55 pm

    O'Scannlain is becoming like Scalia. The world is evolving right in front of their eyes and they are not happy about it. Since no one wants to follow them down the rat hole anymore, they at least insist on getting their money's worth in ink or bile. Sore effin losers.

    By contrast, Daughtrey's scathing dissent was chock full of honest value, accuracy, a moral purpose, and just a wee bit o' Constitutional Law. There's a difference.

  • 132. Zack12  |  January 9, 2015 at 10:07 pm

    He is the most vicious homophobe on any of the circuits so none of his writings are suprising.

  • 133. Zack12  |  January 9, 2015 at 11:03 pm

    He is a bigoted SOB, simple as that.

  • 134. RnL2008  |  January 9, 2015 at 11:06 pm

    And with a pacifier in her mouth or thumb…….lol!!!

  • 135. RnL2008  |  January 9, 2015 at 11:23 pm

    Wow, is all I can muster from reading the childish whims of a Justice who is so blind to NOT see that there have been numerous doctrinal changes over the last 42 years since Baker was before SCOTUS……..and to continue to AVOID this issue by standing on the precedent or lack thereof of direct precedent of Baker is simply ridiculous…..hell, even Minnesota no longer thinks Baker is precedent because by granting or acknowledging one's right to marry have in essence made Baker a moot issue!!!

    Why this Justice felt the need to repeat himself over and over again for 25 pages show in my opinion just how much ANIMUS some in the Courts still have towards Gays and Lesbians…….this Justice as well as the other 2 who agrees with him, truly need to evaluate their purpose for remaining on a Circuit Court of Appeals.

  • 136. RnL2008  |  January 10, 2015 at 1:29 am

    Not sure if anyone has seen this and yes it is off-topic per say, it clearly shows that some just can't separate their religious beliefs from their job:

  • 137. wes228  |  January 10, 2015 at 5:30 am

    To be fair: the fact that Minnesota legalized marriage equality does not undermine Baker. In the state supreme court, the Baker ruling was that the state constitution did not require legalization of same-sex marriage; it did not prohibit the legislature from doing so if they so chose. In the Supreme Court, the ruling was that whether or not the U.S. Constitution requires the states to allow same-sex couples to marry did not pose a substantial federal question.

  • 138. wes228  |  January 10, 2015 at 5:36 am

    The bad news is that does not affect an en banc outcome because senior judges don't participate in that anyway. There are two vacancies on the 5th, IIRC. Come on Obama!!

  • 139. micha1976  |  January 10, 2015 at 6:36 am

    Obama won't be able to help anymore, as the Republican Senate will not confirm any Obama appointees to the 5th Circuit, unless their first name is Edith and they rule accordingly…

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

    Apparently, both sides of the Texas appeal have pressed the judges to go ahead and decide the case even if SCOTUS grants cert. not sure what the position of the parties in the other cases is.

  • 141. brandall  |  January 10, 2015 at 7:18 am

    Where is SeattleRobin? Miss her comments and it's been 4 weeks:

    Do any EoT'rs have a way to contact her to make sure she is OK?

  • 142. Zack12  |  January 10, 2015 at 7:20 am

    That was happening already, it will only get worse now but you are right, there is no way anyone even slightly moderate will be allowed to get through.

  • 143. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 7:36 am

    Isn't it also custom that that Senators from the state whereby the judge is nominated from also put forth the names for the president to pick? Given all three states are now represented by the GOP in the Senate, that alone will be a stumbling block, let alone getting 50 votes (I don't think the GOP reversed that nominations filibuster rule).

    Obama did. It renominate that one judge in Georgia, was happy to see that!

  • 144. JayJonson  |  January 10, 2015 at 7:45 am

    Thanks, Raga. I have a question you might be able to answer or at least speculate on. Let's say that the Fifth Circuit issues an opinion striking down the bans; SCOTUS refuses to keep a stay in place and marriages begin in Mississippi, Louisiana, and Texas in March. Would that also strike down the bans on married same-sex couples from filing joint income taxes in those states? If a couple had not filed their 2014 state income taxes, could they do so jointly?

  • 145. Wolf of Raging Fires  |  January 10, 2015 at 7:47 am

    Now you know how we feel when you go silent for long periods… :)

  • 146. Raga  |  January 10, 2015 at 7:59 am

    You're welcome, Jay. Yes, even if only the "marriage recognition" bans are struck down, all state agencies would be required to treat married same-sex couples the same as married opposite-sex couples, including for tax filing purposes. What I'm a little unsure of is that normally, a married couple should be able to file jointly if they were legally married in 2013. So, does this mean that married same-sex couples still won't be allowed to file jointly because their marriages were not recognized in 2013? I can see how this might be very silly, but state officials have pulled off sillier stunts before. Even so, the implementation of the ruling is a different issue, which will depend on whether these states readily bow down to the federal courts' orders, or, like Kansas, refuse to fully comply.

  • 147. Sagesse  |  January 10, 2015 at 8:09 am

    I am just now listening to the audio, which I had not done at the time of the live chat. One of the questions was 'how have the arguments changed'. In the Louisiana case, the state said they were arguing 'procreation', but not 'irresponsible procreation'. That is a change (who can forget Monte Stewart). Also, no one really questioned that sexual orientation is an immutable characteristic (at least so far).

    Moving on to Mississippi.

  • 148. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 8:16 am

    It is interesting that Lyle on SCOTUSblog indicates that: "…the en banc Ninth Circuit refused — by a vote of eight to three — to reconsider the panel’s combined decision in cases from Idaho and Nevada. Circuit Judge Diarmuid F. O’Scannlain wrote the dissenters’ opinion, joined by Circuit Judges Johnnie B. Rawlinson and Carlos T. Bea."

    I understand the "three" dissent number, but why would there only be "eight" for the decision to not hear en banc. I know once en banc is approved in the 9CA it only gets 11 judges given the size of the full court, but I wouldn't think the vote to hear it en banc was only 11 judges.

  • 149. mariothinks  |  January 10, 2015 at 8:36 am

    I just heard the Texas case. Posner would've loved having the Texas state attorney for lunch.

  • 150. brandall  |  January 10, 2015 at 8:41 am

    Ah, shucks. Thank you. But, I have been staying in touch much better. And when I take my next vacation, I will tell everyone before I leave.

  • 151. F_Young  |  January 10, 2015 at 9:00 am

    Texas Bill Looks to Prevent Gay Marriage From Becoming Legal

  • 152. Steve84  |  January 10, 2015 at 9:19 am

    Also, as much as they like to think they are states are NOT independent countries. This isn't the 18th century, and while American states have a huge amount of autonomy, the relationship between them and the federal government is very different from the one between the EU and its member countries.

  • 153. brooklyn11217  |  January 10, 2015 at 9:20 am

    I wondered this as well.

  • 154. scream4ever  |  January 10, 2015 at 9:22 am

    LOL and this is exactly what the ruling will strike down!

  • 155. Sagesse  |  January 10, 2015 at 9:44 am

    After listening to both Louisiana and Mississippi:

    How is it that no one has mentioned the crying baby, just as the state began to discuss procreation? Threw the attorney for the state off his stride for a bit :). No effect on the argument, just amusing.

    The civility on all sides is quite remarkable… including the judges. The arguments and questions are all logical, fact based and informed. There is very little outrage and grandstanding.

    Robbie Kaplan has a distinguished career ahead of her, in the constitutional law bar, and probably on the bench. The respect shown to her by the judges was amazing… not that they were disrespectful or dismissive of the others, but it was noticeable.

  • 156. Zack12  |  January 10, 2015 at 10:17 am

    In regards to the dissent in the 9th Circuit en banc hearing, one has to keep this fact in mind, Judge O'Scannlain is one of the only jurists that is more homophobic then Scalia.
    From the Prop 8 case to the SmithKline hearing to any other case concerning gay rights in the 9th circuit, he has done everything in his power to try and stop us from gaining rights, which includes calling for en banc hearings on any gay rights case on the last possible day to do so and doing the same with his options.
    He knows that he can't stop us from winning but he will drag it out as long as possible to make sure we suffer from the not knowing and the waits.
    He hates us, he truly does and this dissent is just the latest example of that hatred.

  • 157. RnL2008  |  January 10, 2015 at 10:32 am

    Though Baker was sent to SCOTUS automatically and it has been used to deny us the right to marry, since the Lawrence ruling, Baker has lost a lot of it's bite in this fight and truly since Windsor, no longer applies and really NEVER applied to states like California because marriage licenses where issued and then eliminated……so, to in this day and age to have Justices still quoting Baker is rather pathetic.

  • 158. FredDorner  |  January 10, 2015 at 10:52 am

    I find the O'Scannlain's Baker argument amusing…..if SCOTUS considered Baker relevant in any way they would not have declined cert in any of the state appeals of the pro-equality rulings. Every one of those states cited Baker as controlling but SCOTUS apparently thinks otherwise.

  • 159. brandall  |  January 10, 2015 at 11:11 am

    2 steps forward, 2 steps back …..

    1/21/2014: Starkville, Mississippi first in the state to pass a symbolic inclusivity resolution: “The resolution makes it clear that Starkville is a community that works proactively to prevent workplace discrimination before it happens.

    9/5/2014: Starkville, Mississippi grants DP benefits to city employees, the first time in the state's history such benefits will be funded with tax dollars. What was neat was the unanimous public vote by the Alderman (except for one Alderman who walked out)

    1/7/2015: Five aldermen repealed the Starkville's equality resolution – a non-discrimination policy that included language protecting lesbian, gay, bi-sexual and transgender employees – and ended its plus-one insurance option available to workers' same-sex partners after three hours of closed-door deliberations.

    Animus? Yes, but now they wear pink hoods.

    Read more:

  • 160. VIRick  |  January 10, 2015 at 11:30 am

    "…. Senators from the state whereby the judge is nominated from also put forth the names for the president to pick …."

    Yes, correct. Plus, one can also encounter additional political idiocy. I understand Ted Cruz from Texas won't even nominate anyone. Period.

    And then, Marco Rubio recently nominated someone from Florida for consideration of a federal judgeship. His candidate, while subsequently in the process of being selected, was then blocked by the self-same Rubio. Go figure.

  • 161. scream4ever  |  January 10, 2015 at 11:32 am

    The mayor says he will veto it.

  • 162. Sagesse  |  January 10, 2015 at 11:36 am

    Ok, the Texas argument was a bumpier ride.

    The state was all rational basis, all the time. Animus = hatred and bigotry, therefore no animus.

    I gather it was Smith who was all over Baker v Nelson (hard to tell from the audio exactly who was speaking). As a matter of strategy he waited for the last case to bring out his views, thus giving Taylor and Kaplan no chance to rebut. SCOTUS in Baker had no briefing and heard no oral arguments…. in its summary dismissal for want of a federal question, it expressed no opinion on the merits, or on the reasoning in the decision below. And yet, Smith seems to be arguing that the line of reasoning in the Minnesota opinion is therefore precedent, and no one called him out on it.

  • 163. brandall  |  January 10, 2015 at 11:37 am

    Which is great of him to stand up and do, but he doesn't have the votes to override the veto.

  • 164. VIRick  |  January 10, 2015 at 11:41 am

    "…. if I may indulge in a bit of shameless self-promotion, in case anyone is interested, I am also 'in the market, up for grabs!'"

    Dave, your greatly appreciated "shameless self-promotion" has been duly noted and will be taken under fullest consideration. It's always quite refreshing to encounter shameless, eager candidates.

    "…. Jacob is in the market, up for grabs."

    Raga, thanks for that special-bonus tip. Shopping for a husband can be such a tiresome job at times. So, I'm glad to see that EoT has a little side-issue "meet market" going on.

  • 165. Mike_Baltimore  |  January 10, 2015 at 11:45 am

    ""gays not being able to form stable, committed relationships,"

    Hans and I were together for almost 22 years, and almost certainly would still be together if he hadn't died from cancer in 2002. We had our disagreements at times, but what long-term relationship doesn't?

    What's with Bondi's claim that 'gays are not albe to form stable, committed relationships'? She hasn't been in a marriage for more than 6 years (her second lasted just under 6 years before the divorce). And in May 2012, Bondi promised to get married 'soon' in a small, private ceremony at a Tampa-area Baptist church. We are now about 4 months short of three years since she said that. Does Bondi think 'soon' means three or more years?

  • 166. Mike_Baltimore  |  January 10, 2015 at 12:04 pm

    IMO, SCOTUS has already (quietly) stated that Baker is not valid, in that SCOTUS has upheld the lower courts in several cases (many in which the Baker argument was used) in the last year and a half.

    But yes, it would be nice to see a majority opinion from SCOTUS expressly state that Baker is no longer valid in ANY ME case, or other case dealing with two people of the same sex being married.

  • 167. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 12:13 pm

    I know you said meet market, but I only read meat market.

  • 168. VIRick  |  January 10, 2015 at 12:16 pm

    But, on top of what you just stated, why was in necessary for "brother Brad" to do the escorting of Bondi to her re-inauguration? Why wasn't #3, the "Cayman Islands commitment ceremony" guy, even present for this shameless public performance?

    In an earlier thread, Ryan hinted that she's now working on #4 and that there won't be any Tampa-area Baptist church thingie,– "soon" or ever.

  • 169. VIRick  |  January 10, 2015 at 12:19 pm

    Rose, you didn't quite finish that sentence! LOL

    …. up her ass, or both! There. Done.

  • 170. Wolf of Raging Fires  |  January 10, 2015 at 12:30 pm

    Most appreciated. On that thought…has anyone heard from Jen? :-/

  • 171. bythesea66  |  January 10, 2015 at 12:35 pm

    You mean they have just enough votes to override his veto. That's true though perhaps the exposure and controversy will make at least one of the Alderman back down. IIRC all it would take is one person to change their vote or abstain to fail to override the Mayor's veto.

  • 172. brandall  |  January 10, 2015 at 12:36 pm

    Or as we say in Fire Island Pines, the "Judy Garland Memorial Park."

  • 173. brandall  |  January 10, 2015 at 12:38 pm

    Yes. And let's hope the Alderman remove their pink hoods (pillow cases).

  • 174. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 1:04 pm

    I wonder why her boyfriend (the one she was supposidedly going to marry in the Caymen Iskands to be #3) she intends to marry was?

    I honestly can't find anything as to if she's married right now or not, but that trip to the Caymen Islands apparently didn't end up as a marriage for No. 3. "This would be marriage No. 3 for Bondi after two divorces. She wed Garret Barnes in 1990 at age 24; they divorced 22 months later. Her second marriage to Scott Fitzgerald in 1997 ended just shy of six years."

  • 175. Mike_Baltimore  |  January 10, 2015 at 1:29 pm

    I just received a statement from the Federal government organization that provides my retirement pay on behalf of OPM. Starting next January, the Federal government will require all health providers in the Federal system to provide the plus-one insurance option to any/all Federal employees who are enrolled in the FEHB.

  • 176. brandall  |  January 10, 2015 at 1:30 pm

    Her boyfriend is 62-year-old ophthalmologist Greg Henderson. She is 46.

  • 177. sfbob  |  January 10, 2015 at 1:40 pm

    There are some limitations to "self-plus-one" coverage. I couldn't find anything on OPM's website but had this to say:

    "The second person will have to be someone eligible under regular FEHB family policies—meaning, for example, no domestic partners."

    While the above can't be taken as absolutely authoritative they're usually reasonably accurate.

  • 178. sfbob  |  January 10, 2015 at 1:45 pm

    Step One: Marriage equality ban struck down.
    Step Two: Marriages start.
    Step Three: The law you've reference gets passed.
    Step Four: Decent county clerks obtain an immediate injunction against the law.
    Step Five: It gets heard in federal court and overturned.
    Step Six: It gets appealed to the Fifth Circuit where the lower court's ruling is upheld.
    Step Seven: SCOTUS declines to grant cert.

    All at the cost of plenty of money to the good taxpayers of Texas.

    This part's interesting too:

    "The bill also requires state courts to dismiss legal actions that challenge a provision of the bill and award legal costs and attorney fees to the defendants. Citing the 11th Amendment, which gives states sovereign immunity, the bill also says the state isn’t subject to a lawsuit for complying with the act — regardless of a contradictory federal ruling."

    As I have said before, State Rep Cecil Bell (R-Dumbfuckistan) needs a very long remedial course on Constitutional Law.

    The Eleventh Amendment prevents a suit against the state itself. It doesn't prevent state officials from being sued. Every time these clowns get sued they claim immunity under the Eleventh Amendment. And every time they do that, they get spanked. Hard.

  • 179. Sagesse  |  January 10, 2015 at 1:54 pm

    Lyle Denniston at ScotusBlog comments on the 9th Circuit's decline of en banc review:

    Sharp new critique of same-sex marriage rulings

    ScotusBlog is a pre eminent resource for commentary on the US Supreme Court and constitutional law, and I have a lot of respect for them, and for Lyle Denniston in particular. BUT. This article is an excellent example of where he sometimes, in my view, does not present a balanced assessment of 'what just happened here'.

    His headline is correct – the dissent was a sharp critique. He then goes on to imply that it is an important addition to the legal debate. "It could have the effect of building resistance within the Supreme Court to moving soon toward a nationwide ruling in favor of such unions." Well, it could, but how likely is that? 1%? 5%? 80%?

    Consider: it is a dissent. A dissent from a refusal by the 9th Circuit, a very large bench, to grant en banc review. It follows on a long list of federal district court and appeals court decisions that disagree. It follows a SCOTUS decision to deny cert on a number of those decisions resulting in ME in several states in three circuits. It follows, if I recall correctly, a refusal by the 9th Circuit (?) and SCOTUS (?) to stay the Idaho decision pending the outcome of the en banc request. The 9th applied heightened scrutiny, based on SmithKline; it refused en banc review of SmithKline then too, despite a dissent and 'sharp critique from O'Scannlain.

    So, tell me again why anyone would expect this 'sharp critique' to move the needle in any significant way as SCOTUS decides whether to grant cert to a ME case? Either they'll take up the 6th Circuit decision, or they won't. Either they'll disavow Baker, or they won't. It's hard to see how O'Scannlain's wisdom and insight gets them anywhere they weren't going to go anyway.

  • 180. hopalongcassidy  |  January 10, 2015 at 1:57 pm

    That bill has about as much chance of withstanding judicial review as that old one from (IIRC) Tennessee making Pi equal to 3.0.

  • 181. VIRick  |  January 10, 2015 at 2:00 pm

    Irish drag queen sensation, Panti Bliss, now a major star in Ireland, has delivered a jaw-dropping follow-up to her viral speech about homophobia. We proudly dedicate this wonderful text version of her latest speech specifically to Judge Diarmuid O'Scannlain:

    Panti says: “I am 45 years old, and I have never once un-self-consciously held hands with a lover in public. I don’t know how many of you can even imagine what that might be like. Of course it’s a small thing, isn’t it? It’s not that nobody wanted to, it’s just that we didn’t feel comfortable to.

    “Every day, I am jealous of straight people, because that tiny intimate expression of affection has never once been mine. I see straight couples walking through the park and they are casually holding hands and I am jealous of them. I will sometimes see a man un-self-consciously put a protective arm around his girlfriend… and I am jealous of that. I am jealous of that because gay people do not get to hold hands in public without first considering the risk.

    “Gay people do not get to put an arm through another arm, or put a hand on a boyfriend’s waist before first considering what the possible consequences might be. We look around to see where are we, who’s around, what kind of area is it? Are there bored teenagers hanging around? Are there bunches of lads outside a pub? If we decide maybe it’s okay, maybe we do hold hands – but the thing is that now those hands are not casual and thoughtless – they are considered and weighed. It’s no longer a small intimate gesture – it’s a political act of defiance and it has been ruined.

    "Sometimes people notice. They may only notice because they’re thinking ‘Oh isn’t it nice to see two gays holding hands in public?’ but they still notice – but I don’t want them to notice. Then our small, little, intimate human gesture has been turned into a statement that I don’t want it to be. It’s just a small thing… but there are lots of small things that LGBT people have to put up with, that other people don’t have to put up with."

  • 182. hopalongcassidy  |  January 10, 2015 at 2:18 pm

    Some years ago, my boy friend and I were walking down the street from a gay club in Tulsa to our car. A group of teenagers came up behind us yelling antigay slurs, of the 4, 2 were carrying baseball bats. It was abundantly clear they were about to bash our heads in. At that time I was a reserve Sheriff's Deputy and carried a handgun and the commission that made it perfectly legal. I turned around, opened up my jacket so they could see my sidearm and put my hand on the grip….they turned and ran away. There is absolutely no doubt in my mind they would have injured or very possibly killed one or both of us. And that is why I so fervently support the right to keep and bear arms by law abiding citizens…I am not ready to concede everything that matters to a bunch of cowardly criminal thugs.

  • 183. Zack12  |  January 10, 2015 at 2:28 pm

    I don't get it either, Lyle is usually good but he dropped the ball here.
    O'Scannlain, Bea and Rawlinson are NOT coming up with any new points the bigots haven't used already.
    From state's rights to how we should go through legislatures to Baker V Nelson, each and every one of these stupid arguments has been used, through DOMA and through the marriage bans.
    And other then the 6th circuit, those arguments have failed with Democratic and Republican judges alike sans a few who can't bother to hide their animus towards us.
    IMO, SCOTUS made it clear which way this would be going when they didn't grant cert back in Oct.
    They are not going to turn the clock back now just because a homophobic jurist who puts Scalia to shame wrote a angry option.

  • 184. Wolf of Raging Fires  |  January 10, 2015 at 2:33 pm

    Right? I read that too and I was thinking the same thing. In the grand scheme, O'Scannlain's opinion about anything doesn't mean jack squat. Maybe earlier on it would've meant something, but certainly not now…not at this point.

  • 185. hopalongcassidy  |  January 10, 2015 at 2:44 pm

    I can't help feeling a little bit sorry for a guy who got stuck with the name "Diarmuid". No wonder he turned into a goatfucking idiot…although if he had any sense to start with he'd have changed it and gone on about his business. Which was probably goatfucking so it's all academic anyway.

  • 186. F_Young  |  January 10, 2015 at 2:57 pm

    Michigan: Shirvell's anti-gay rants not protected, court says

  • 187. F_Young  |  January 10, 2015 at 3:06 pm

    "Irish drag queen sensation, Panti Bliss, …"

    Her quote is the most eloquent statement I have ever seen on this. What she said is still true for me after all these years even though I am completely out.

  • 188. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 3:23 pm

    Im embarrassed by my Junior Senator, Governor, and AG. I seriously need to state to split in half and north of Orlando/Tampa to just be called South Alabama.

  • 189. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 3:24 pm

    I've never been to Fire Island. It's on my list.

  • 190. dlejrmex  |  January 10, 2015 at 3:26 pm

    You almost had me believing it but Murica hasn't sunk to that point… yet…

    And the Tennessee reference is from a novel.

  • 191. Zack12  |  January 10, 2015 at 3:27 pm

    One more thing, I said this above but as bad as SCOTUS is right now, think of how much worse if would be if Sotomayor or Kagan had say no to SCOTUS.
    Many have said that if that had happened, Rawlinson would have been at the front of the line for a SCOTUS seat.
    And if that had happened, DOMA would be the law of the land and the bans in more then 30 states would still be in place.
    Let's just be thankful it didn't.

  • 192. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 3:53 pm

    Let's be clear, I find very few things more consequential from a presidential election than the impact on the nominatins to SCOTUS. I was most furious with the Democratic Party in 2004 with putting up a liberal senator from Massachusetts to go against Bush, as if we had a Democrat in place from 2005 – 2013, that would be four justices in place by a Democrat, versus only two. If Roberts and Alito weren't in place, Scalia and Thomas would be alone with an occasional Kennedy, and we'd have a Chief Justice and five others in support. Pisses me off again just writing this. All the more reason we need a Democrat to succeed Obama.

  • 193. hopalongcassidy  |  January 10, 2015 at 3:53 pm

    I am only an egg.

  • 194. ianbirmingham  |  January 10, 2015 at 3:54 pm

    I totally did see this coming, way back in the holiday thread. Quoting:
    Stats on the 5th & 8th Circuits:

    5th Circuit: 8 left, 4 center-ish, 12 right

    8th Circuit: 4 left, 3 center fish, 12 right

    In both circuits it's possible to get a 3-judge panel with two left-of-center judges.

    Also, many of the judges who have ruled in favor of marriage equality were appointed by right-wing presidents, so more defections to our side are to be expected.

    Both the 5th and the 8th Circuit could indeed go our way.
    The person who DIDN'T see this coming? Zack12! Quoting:
    …there will be no favorable rulings coming out of the 5th or 8th circuits, period.

  • 195. JayJonson  |  January 10, 2015 at 4:02 pm

    Thank you, Raga. I have no doubt that the officials in these states will do their damnedest to thwart justice as long as they can, but there does seem to be light at the end of the tunnel now.

  • 196. VIRick  |  January 10, 2015 at 4:02 pm

    Here's the full ruling. It doesn't show the precise numbers for either side, although we know, independently, that 3 signed the dissent:

    In their short ruling, the judges wrote: “The panel has voted to deny the petitions for rehearing en banc.

    “The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc.

    “The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. The petitions for rehearing en banc are denied.”

  • 197. davepCA  |  January 10, 2015 at 4:04 pm

    Good! I remember that story. That guy seems like a completely deranged lunatic who developed a bizarre stalker-ish obsession aimed at a random gay guy for no rational reason. He should be locked up before he goes postal.

  • 198. flyerguy77  |  January 10, 2015 at 4:30 pm

    I don't see we will be seeing oral arguments for En Banc hearing.. If its true the 3 panel will be upholding the lower court's decisions the stays will be lifted by this panel or SCOTUS. If the prediction is right.. same sex marriages will be in TX, la, MISS, and en banc won't be able to stop it…… if they try SCOTUS will stop it.. jmho

  • 199. Rick55845  |  January 10, 2015 at 5:15 pm

    If they uphold the lower court decisions in Texas and Mississippi, they will overturn the federal district court decision in Louisiana. That one went against ME and in favor of the State, if you'll recall.

  • 200. flyerguy77  |  January 10, 2015 at 5:18 pm

    Sorry for the mess up, oops my bad…

  • 201. Zack12  |  January 10, 2015 at 5:29 pm

    Indeed, Kerry wasn't going to win.
    What angers me about the Bush years is how easily Democrats caved in on so many of Bush Jr's rightwing nominees where Obama and the Democrats rolled over for far too long when Obama's nominees got blocked again and again.
    Also, Republicans had no problem ignoring the blue slip when they were in power but for some absurd reason, Patrick Leahy allowed Republicans to use it again and again to scuttle Obama's nominees.
    He is a fool, along with many of the older senators who would let Republicans keep on blocking judicial nominations until 2016 or 2020.
    Thank goodness we had folks like Tom Udall and Jeff Merkley in there. They are the ones who got the other spineless Democrats to push the button on the nuclear option.
    We did manage to get some young progressive judges on the courts the past year.
    Not as many as I would have liked, but far more then we would have otherwise.

  • 202. VIRick  |  January 10, 2015 at 6:06 pm

    Ryan, then you got the message, as intended.

  • 203. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 6:53 pm

    Our blogger profiles do not allow for much "marketing" opportunities though, other than the itty bitty picture.

  • 204. Ryan K (a.k.a. KELL)  |  January 10, 2015 at 7:01 pm

    Agree that it was huge to get that Executive and Juducial nomination change on the filibuster (so-called "nuclear option" – didn't quite live up to that hype) rules. Without that, there would be plenty more vacancies unfilled.

    And now we have Senator Chuck Grassley and a what, 54-46 GOP Senate majority? I do not know how many district vacancies there are, not circuit, but I can't see there being a big uptick in confirmations in the next 24 months.

  • 205. VIRick  |  January 10, 2015 at 7:23 pm

    Despite that, I think we're doing a fairly good job of it, right here, right now, espcially if Jacob's "in the market, up for grabs," and so is davepCA.

  • 206. Zack12  |  January 10, 2015 at 7:27 pm

    There won't be. In fact some are saying there won't be any at all.
    While I don't think that will be the case, you can kiss goodbye the chance of getting anymore liberal or progressive judges through.
    Even moderate ones will have a tough time and if a Democratic judge takes senior status or dies on any of the circuit courts, that seat isn't getting filled at all.

  • 207. Deeelaaach  |  January 10, 2015 at 7:31 pm

    And you thought the CD skipping in your car was bad. The skipping in the under-dash mobile phonograph was murder on both the record and the needle!

  • 208. guitaristbl  |  January 10, 2015 at 7:43 pm

    If Obama had made the mistake toput someone who joined such a dissent on SCOTUS, I would dare say that would essentially nullify anything he has done for LGBT people.

  • 209. RnL2008  |  January 10, 2015 at 7:46 pm

    It appears that these ANTI-GAY folks just DON'T get how our form of Government works… CAN'T make laws that PREVENT Citizens from filing lawsuits to correct injustices or grievances as this bill appears to do……..and this idiot feels it is a waste of time to tie up the courts to fight for our rights that have been denied by flipping anti-gay folks, yet DOESN'T get that there will be lawsuits against this bill!!!

  • 210. VIRick  |  January 10, 2015 at 7:49 pm

    She's amazingly eloquent, so brilliantly on-target "on just a small thing," and as a result, almost single-handedly, with speeches of this nature, has turned the entire Irish political scene on its ear vis-a-vis marriage equality in the Irish Republic. A few years ago, she was an unknown drag queen "comic." Now she's a regular on Irish TV newscasts. She's been compared to Conchita Wurst, the bearded drag queen of Austria, both of whom are far more political than "Dame Edith" of Australia ever was.

    About 75% of the Irish general public currently support marriage equality, just months ahead of the scheduled referendum there this May, a measure which thus has an extremely good prospect of passing,– at which point, we can pointedly tell the Irish-Gaelic wonder, Diarmuid Fionntain O'Scannlain, to take that and stuff it .

    Diarmuid Fionntain O'Scannlain is Dermot Fintan Scanlan in English. Fionntain was a mythic "martyr" of Donegal, and has no translation, but is usually shortened to Fionn, Finn, or Fintan.

    Upon further translation, his name means "without enemy, fair-headed." Go figure.

  • 211. guitaristbl  |  January 10, 2015 at 8:09 pm

    I am honestly surprised and worried with what Lyle wrote.
    No doubt we are talking about one of the most (if not the most) vicious anti equality writings since this circle of litigition started. But what could make Lyle say that it could slow things down ? Is it the "domestic relations exception" he puts so much weight on ? He seems to imply that such an approach could reasonate with the justices and he is a very experienced court observer. Not that he cannot be wrong (the denial of cert on Oct. 6 proved that he can) but still he seems to put much weight on O'Scannlain's dissent. Fingers crossed he is just overestimating its impact.

  • 212. Zack12  |  January 10, 2015 at 8:13 pm

    It would have because DOMA would still be the law of the land.
    There is no way any judge who signed onto a vicious anti-gay brief like that would ever be on our side.

  • 213. guitaristbl  |  January 10, 2015 at 8:23 pm

    On another note, not that it will matter in the short term, but with a decision pending from the district court in South Dakota, a hearing scheduled in Nebraska and the denial to dismiss in Georgia, does anyone know if any progress has been made either in Ramsay v. Dalrymple, the North Dakota case or any of the three cases in Alabama (Hard v. Bentley, Searcy v. Bentley, Aaron-Brush v. Bentley) ? In Searcy, according to wikipedia, there are pending motions for summary judgement from the plaintiffs and dismissal from the state since June 2014 !

  • 214. Zack12  |  January 10, 2015 at 8:23 pm

    I'm surprised at what he wrote but not worried.
    As one of the posters above mentioned, he does not always provide the best assessment of what happened.
    There is NOTHING new in this piece of crap dissent that hasn't been used before and been rejected by Kennedy and the other four justices on our side.
    IMO, this is not something to stress out about.

  • 215. Raga  |  January 10, 2015 at 8:33 pm

    Here's one of my comments regarding pending cases (state and federal) in states in the Eighth Circuit from a couple of days back – reposting here for you:

    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.

  • 216. Raga  |  January 10, 2015 at 8:37 pm

    The Alabama cases haven't been moving at all lately, similar to some of the stagnant Eighth Circuit cases. I tried to log into PACER to check on them, but I'm having some problems, as the login page keeps reappearing when I enter my username, password and click on "Login". I'll try again later. Freedom To Marry notes there are four lawsuits in Alabama:

  • 217. Deeelaaach  |  January 10, 2015 at 8:41 pm

    In 500 years, when we've had full ME for 499 (or thereabouts) via SCOTUS, and Baker has been expressly overturned for the same length of time, the anti-gays, if they still exist, will still have the the quivering lips as they pray, "But, but… but Baker…" as their tears begin to fall.

    Some of them may believe that Baker holds, but the rest are trying to convince us that it does, just as they try to convince themselves, against reason. That they continue to use it even this long after 1972 defies any and all logic.

  • 218. guitaristbl  |  January 10, 2015 at 8:48 pm

    There is the "domestic relations exception", mentioned for the first time by a judge..

  • 219. Deeelaaach  |  January 10, 2015 at 8:50 pm

    It's not yesterday, but I around half an hour ago I downloaded it to listen offline later. It took me about two minutes to download from the 5th CA site (my connection is less than 10 mb/sec). The file, 14-31037_1-9-2015.mp3, is around 55 mb.

  • 220. guitaristbl  |  January 10, 2015 at 9:00 pm

    wow Raga thank you very much, up to date as always !
    I was not aware of the divorce case before the Missouri SC. They have skipped the question before when it was not directly presented, they may do that now as well.
    For North Dakota, according to judgepedia she actually retires today (!) so yeah I don't think we can be sure how this case will proceed. Of course we cannot always judge based on who appointed the judge but a G.W. Bush appointee in North Dakota does not sound like a good case scenario for us anyway. But it seems both cases are ready for a decision and there is a delay, possibly waiting SCOTUS action.
    I am aware of the rest of the proceedings in SD and NE.

  • 221. guitaristbl  |  January 10, 2015 at 9:02 pm

    Indeed but the 4th one is in state court and has been stagnant for almost two years it seems.

  • 222. Deeelaaach  |  January 10, 2015 at 9:25 pm

    Guitarist, while California is a very large state and a number of areas are quite liberal and the state leans that way politically for a number of reasons, the state has large areas in which the conservative nature of the population rivals the South in it's bigotry. These areas are places where people live, surrounded by other happy bigots… uh, I mean people. I grew up in one such place but now live in the Bay Area. This has been helpful in beginning to throw off the internalized trans/homophobia I was raised with.

    Some areas of the state that are or can be very conservative are the Central Valley, southern California's Imperial Valley in particular, and some northern parts of the state. Indeed, a study I came across on 2010 voting patterns in the state showed that while the Los Angeles metro area outnumbers the Bay Area, the Bay Area had a higher percentage of voters turning out, such that the state battles were pretty much determined by the numerically smaller Bay Area turnout. At least that's what I recall anyway. I'll have to see if I can find the link again.

    As they say, if you don't vote, don't complain.

    Edit: Even though the justice lives in CA, he could live in one of these areas, surrounded by like-minded folks.

  • 223. ianbirmingham  |  January 10, 2015 at 9:42 pm

    Well, this "domestic relations exception" comes from dicta in the 1890 case "In re Burrus". Dicta means the judges are just running their mouths and what they are saying has no legal force (because it is irrelevant to what the case was actually about). The actual holding in "In re Burrus" was that a federal court can't issue a writ of habeus corpus in a child custody case unless there is some sort of constitutional question involved. See

    Furthermore, even if we took it as being a Supreme Court ruling from 1890 (which it isn't), it would have been repeatedly overturned by Loving v. Virginia, Zablocki v. Redhail, and lots of other subsequent Supreme Court decisions dealing with marriage.

    Bottom line: this is a desperate "Hail Mary" tactic with even less credibility than the usual attempts to resurrect Baker v. Nelson. The Supremes will comically smash this total bullshit argument with a pile driver.

  • 224. Deeelaaach  |  January 10, 2015 at 9:48 pm

    He wants the debate, so he wants the issue to be "in the public square" only so he can rule against us. The debate is alive and winnable only in his mind and in the minds of others.

    Methinks he thinks it's okay to vote on the civil rights of others. Well, maybe on certain civil rights or only for certain people that is. It sounds like he doesn't want his job – after all, if the public gets to pick and choose by popular vote what is right and wrong, why the hell do we need courts? He sure as hell doesn't seem to believe in Article III of the Constitution if he believes that. Rather, he probably does believe in it – only when a particular subject is interpreted and ruled on in his way of thinking.

    Actually though, the judge confuses the judicial square for the public square. He can debate it in public if he wants – he just can't take away our rights even if he were somehow able to both revive and win the dying (dead?) public debate.

  • 225. VIRick  |  January 10, 2015 at 9:53 pm

    "…. Dicta means the judges are just running their mouths …."

    Given that O'Scannlain's dissent was just that, a dissent, it, too, has no legal force, and would thus qualify as more dicta.

  • 226. VIRick  |  January 10, 2015 at 10:00 pm

    Of all of this, we need to keep an eye on the Missouri Supreme Court and their decision, whenever it's announced, in the case of "In re Marriage of M.S. and D.S."

    Originally, court-watchers stated that the court was expected to rule "in a matter of weeks." It's now been over a month since 3 December 2014.

  • 227. Deeelaaach  |  January 10, 2015 at 10:15 pm

    And in Arthur C. Clarke and Stephen Baxter's "Time Odyssey" series (Time's Eye, Sunstorm, Firstborn), an alien intelligence uses globes whose value of pi equals 3.0 to disrupt and destroy our species. The Snopes reference (to Tennessee) is from a Heinlein novel, Stranger in a Strange Land.

  • 228. VIRick  |  January 10, 2015 at 10:17 pm

    Oh wait!

    I just found an alternate translation for "Diarmuid." It says, "Goatfucking idiot." So, you got that right. LOL

    "Goatfucking" is also listed as a specialty occupation of the lower classes in the outer wind-swept reaches of Donegal.

  • 229. ianbirmingham  |  January 10, 2015 at 10:28 pm

    State courts are exactly the wrong place for marriage equality cases. Not only do they move like snails, the judges are usually elected. Thus the Iowa Supreme Court judges who ruled in favor of marriage equality lost their highly paid jobs. And the Equality Florida marriage equality case (stupidly filed in state court) that got beat by the Brenner and Grimsley cases (both were filed after the Equality Florida case, yet those cases won marriage equality in Florida while the Equality Florida case snoozed in the state court system). If a lawyer tells you that a marriage equality case should be filed in state court, fire his or her ass instantly and get a lawyer who knows how & when to use the federal courts!!

  • 230. VIRick  |  January 10, 2015 at 10:34 pm

    Not only that, but the judges in the matter were only required to produce a basic "Yes" or "No" answer to the question at hand, "Shall we or shall we not re-hear the case, 'Latta v. Otter,' in an en banc review?" Instead, O'Scannlain produced a completely unnecessary 25-page treatise of bigotted drivel.

  • 231. bythesea66  |  January 10, 2015 at 11:13 pm

    I agree, but let's be fair. What you're saying is more or less true, but few would have agreed with you only relatively short time ago. Not so long ago at all there was a great deal of concern about challenging in the bans in Circuits viewed as potential likely to give negative rulings and the dangers that could bring for the movement toward equality. Who would have really thought a win in the Fifth for ME was possible a week ago, nor did we feel so quite so confident prior to the denials in October, etc.

  • 232. ianbirmingham  |  January 11, 2015 at 2:45 am

    That's exactly the problem, and it's not a new one either. Think back to the days of Prop 8 in California. AFER correctly filed a federal lawsuit challenging its constitutionality. How did all the other groups who were supposedly fighting to win marriage equality respond? Take a look…

    I put my own money into AFER way back then, and I was absolutely appalled at the incompetence of all these organizations who were cowering in the corner instead of fighting and winning.

    You asked who would have really thought a win by the Fifth for ME was possible a week ago – I did, and I said so in writing back in the Holiday thread. Zack12 responded by flatly denying that there was any chance whatsoever. Quoting:
    Stats on the 5th & 8th Circuits:

    5th Circuit: 8 left, 4 center-ish, 12 right

    8th Circuit: 4 left, 3 center fish, 12 right

    In both circuits it's possible to get a 3-judge panel with two left-of-center judges.

    Also, many of the judges who have ruled in favor of marriage equality were appointed by right-wing presidents, so more defections to our side are to be expected.

    Both the 5th and the 8th Circuit could indeed go our way.
    And now quoting Zack12's response:
    …there will be no favorable rulings coming out of the 5th or 8th circuits, period

    I don't have a crystal ball, but I do know the history of the Supreme Court where civil liberties topics are concerned. I know that Richard and Mildred Loving didn't wait for bigotry in Virginia to die of its own accord in response to an observation that bigotry was unfair – they went to court and slugged bigotry in the face and delivered a knockout blow to a law that institutionalized bigotry. Here's the ruling:

    This idea that a certain amount of political popularity is necessary first is a complete load of bullshit. Look at the 2002 Supreme Court decision in Ashcroft v. Free Speech Coalition, in which the Supreme Court rules that virtual (computer-generated) child porn is protected by the First Amendment. Full text here……

    All of the clues are public knowledge, clearly written in the historical record. Despite this, cluelessness abounds. Marriage equality would have arrived long ago if the people fighting for it really knew how to fight.

  • 233. F_Young  |  January 11, 2015 at 3:48 am

    For the record, I'm also looking for a long-term partner. I live in New Brunswick, Canada, but I'd be willing to move to the US under the right circumstances.

  • 234. F_Young  |  January 11, 2015 at 3:51 am

    Thanks, VIRick. That's very interesting.

  • 235. jm64tx  |  January 11, 2015 at 5:52 am

    Hey Rose … you might want to go read the Supreme Court case of Monroe v. Pape…

  • 236. hopalongcassidy  |  January 11, 2015 at 6:04 am

    Actually I heard the Pi story years before Heinlein wrote SIASL…
    which is mostly a good book except for his thinly veiled homophobia. I've wondered if he ever got over that silly shit.

  • 237. hopalongcassidy  |  January 11, 2015 at 6:04 am

    Hi shitbag, how's your Uncle Dad these days?

  • 238. jm64tx  |  January 11, 2015 at 6:19 am

    Same as your sister wife…

  • 239. hopalongcassidy  |  January 11, 2015 at 6:36 am

    Awww, you're so fucking clever. I bet the other kids over at the playground just lurve you…

  • 240. jm64tx  |  January 11, 2015 at 6:49 am

    This coming from a guy who is arguing that the Ku Klux Klan Act gives gay folks the right to marriage …

  • 241. Zack12  |  January 11, 2015 at 7:41 am

    Since you felt the need to single me out in several of your posts and insult me, let me respond in kind by saying my point still stands.
    If you had bothered to read some of my other posts, you would have seen me talk about this panel and how if they rule in our favor, an en banc hearing will reverse it.
    The George W judges as well as some of the St. Ronnie ones like Edith Jones will NOT allow a positive ruling to stand in the 5th, same in the 8th, which still has all three of the judges who ruled against us in 2005 when a group took your advice to go full steam ahead with a lawsuit on a court filled with right wing Republican hacks and lost.
    You talk about people being clueless, yet you seem to be that yourself in regards to what Republicans have done to the courts.
    Folks like Posner are becoming rare while folks like Sutton are becoming the norm.
    The fact is after our loss in the 8th, our side was right to focus on various states and slowly work our way back to the courts, especially with Obama being able to appoint judges.
    Our victory in the 4th NEVER would have happened ten years ago and you thinking otherwise is a mistake.
    And as I said at the top, my main point stands.
    Rulings for our side will not be allowed to make it out of the 5th and 8th circuits, period.
    Only SCOTUS can bring equality to these two circuits, simple as that.

  • 242. F_Young  |  January 11, 2015 at 7:55 am

    US: ‘Gay cure’ group plans to sue DC over therapy ban

    “We are still seeking a plaintiff (minor and their family) who has been disenfranchised by this law in the District, but at this point, we cannot find a licensed practitioner who even practices SOCE therapy in the District, nor can we identify a client who has been disenfranchised.”

    I'm a bit confused by this article. The laws in California and New Jersey apply only to licensed practitioners, not unlicensed religious ministers; is DC different? Does this "Christian ‘ex-gay’ advocacy group" even have standing?

    I love the switch photo used to illlustrate this article.

  • 243. RemC_Chicago  |  January 11, 2015 at 8:15 am

    Incidentally, I threw out the question that got Jacob going on his thought-experiment thing mostly because only a few of us were posting questions or comments and the conversation seemed to be stalling. I thought—hoped—I was helping them out.

  • 244. brandall  |  January 11, 2015 at 8:27 am

    The DC law applies to licensed mental health professionals:

    "A provider shall not engage in sexual orientation change efforts with a consumer who is a minor,"… "A violation … shall be considered a failure to conform to acceptable conduct within the mental health profession under section 514(a)(26) of the District of Columbia Health Occupation Revision Act of 1985, effective March 26, 1986 … and shall subject a provider to discipline and penalties under 514(c) of the District of Columbia Health Occupation Revision Act of 1985."

  • 245. brandall  |  January 11, 2015 at 8:37 am

    From another article on the same topic:

    "Voice of the Voiceless, an organization focused on ex-gay rights and recognition."

    After we win ME nationwide, I would love to see a full-blown trial complete with studies and mental health professionals debating the word "ex-gay." I can get (but feel sorry for) the concept of "suppressed gay" or "non-actions gay" for those who wish to conform to their religious beliefs. But, as an experienced, grown-up gay person, it is not a light switch.

  • 246. brandall  |  January 11, 2015 at 8:48 am

    VIRick's IntenseDebate "marketing" profile is quite clear: "Hot, single, available, and looking for a husband so we can bring marriage equality to the Virgin Islands where I currently live."…..and, THAT picture. Although very happily married, I can certainly play matchmaker.

  • 247. brandall  |  January 11, 2015 at 8:51 am

    Having recently met davepCA twice at legal functions, I an attest he is quite handsome, has a good job, is well spoken and intelligent and would make a great husband for someone of like qualities.

  • 248. brandall  |  January 11, 2015 at 8:58 am

    I had a house there for several years when FIP was at its' peak in early 80's. It was an amazing place because you could completely "be yourself" without fear of any consequences. It was like Disneyland for gay people. Beautiful homes, wide beaches, no cars (boardwalks and little red wagons) and wonderful stunning, fun and smart people.

    I took my husband there 2 years ago so he could understand my affection and great memories of that time and place. It is still lovely, although toned down a bit. Much the same as we are now seeing the disappearance of gay bars and restaurants as we meld into the mainstream in the major cities.

    Go Memorial Day Weekend which is still full of festive activities.

  • 249. brandall  |  January 11, 2015 at 9:13 am

    I have been reading Lyle's column for many years. He knows his stuff and sticks to being very factual. Except in this article with this one sentence, "It could have the effect of building resistance within the Supreme Court to moving soon toward a nationwide ruling in favor of such unions."

    I'm disappointed he would make this statement. Especially since the October actions of the court clearly spell out what is going to happen. The only thing we cannot be certain of is when. If anyone, anywhere does not think the court took their sides last October, I would be interested in hearing your POV.

  • 250. Ryan K (a.k.a. KELL)  |  January 11, 2015 at 9:56 am

    Thank you for the details and suggestion for going on Memorial Weekend.

  • 251. Raga  |  January 11, 2015 at 10:01 am

    Thank you, RemC, I'm sure you did – I do remember the moderator asking us to keep the questions coming – it was a smaller chat than previous ones, I think. It gave me an opportunity to bring up my views on the matter too, so thanks!

  • 252. Raga  |  January 11, 2015 at 10:02 am


  • 253. Raga  |  January 11, 2015 at 10:02 am

    I have a mental image of you playing matchmaker in a gay version of Fiddler on the Roof (just saw that musical a few days ago)!

  • 254. Ryan K (a.k.a. KELL)  |  January 11, 2015 at 10:03 am

    Yeah a picture says a thousand words. Rick's abs do the talking lol. I'd head to the VI to bring marriage equality there with him (I say this as his written personality also is charming).

  • 255. Raga  |  January 11, 2015 at 10:04 am

    Perhaps the quoted statement's "building resistance" part only applies to the "moving soon" aspect, and not the "ruling in favor" aspect? It is an ambiguous statement.

  • 256. Ryan K (a.k.a. KELL)  |  January 11, 2015 at 10:21 am

    Any chance to spread the vitriol will be taken by these right-wing, bigoted ideologues. To your point, just vote yea or nay in determining to review en banc. Your sorry ass wasn't slected for a panel, therefore you have no right to issue an opinion on the matter. The dissent on the vote for hearing en banc should not have been a dissent on how you would have voted on the merits of the case. I hope his remaining time on the 9CA is short, as your time on it thus far is undeserving.

  • 257. Raga  |  January 11, 2015 at 11:14 am

    The state court divorce case in Alabama was filed March 3, 2014 and dismissed March 12, 2014. (However, there is a March 13 docket entry that includes a badly scanned image of an unsigned divorce certificate.) I can't find any appellate record of this case.

    There are three federal cases in Alabama, all of them only seeking marriage recognition:
    (1) Hard v. Bentley was filed in December 2013. The plaintiff is seeking recognition as the surviving spouse of his deceased husband. This case has been assigned to Judge William Keith Watkins, a George W. Bush appointee, and he referred it to Magistrate Judge Susan Russ Walker. On March 31, 2014, the mother of the deceased was allowed to join the case unopposed as an intervenor-defendant. Plaintiff, Defendants, and Intervenor-Defendant have all filed their own motions for summary judgment, all of which have been briefed and ready for a ruling since November 2014.
    (2) Searcy v. Strange was filed in May 2014. It has been assigned to Judge Callie V. S. Granade, a George W. Bush appointee, and referred to Magistrate Judge Katherine P. Nelson. In August, Plaintiffs' claims against all defendants were dismissed, except for Defendant Searcy, in his official capacity. Cross motions for summary judgment have been fully briefed and referred to the judge, awaiting a ruling since late-November, 2014.
    (3) Aaron-Brush v. Bentley was filed in June 2014. It has been assigned to Judge R. David Proctor, a George W. Bush appointee. In mid-September, he issued the following order setting a schedule of deadlines in the case: "Mediation in 2/2015; Discovery due by 2/4/2015; Dispositive Motions due by 4/6/2015; Pretrial conference ready in 8/2015; This case will be trial ready in 9/2015." (Later in September, he dismissed Governor Bentley as a defendant based on a joint motion to dismiss.)

  • 258. F_Young  |  January 11, 2015 at 1:35 pm

    Supreme Court faced gay rights decision in 1958 over 'obscene' magazine
    Supreme Court's ONE vs. Olesen free-speech ruling 'put gay people on the path to freedom' in 1958

    I'm amazed that a mainstream newspaper actually covers this incredibly important, but incredibly obscure, case of 57 years ago, without which the entire American gay rights movement would have been impossible.

  • 259. RemC_Chicago  |  January 11, 2015 at 3:32 pm

    My thanks to Raga for his soundcloud clips of the audio, which helped tremendously in my ability to listen. Smith's constant hammering away at Baker, especially in the Texas case, grated on the nerves after a while—as did the state's lawyer constant harping on responsible procreation. I kept thinking of Posner's epic smack-down of these points, and the simple fact that gay & lesbian couples ARE procreating with surrogates in the same way that some straight couples are. Not to mention the obvious logic that prohibiting ME in no way impacts a straight couple's choice to procreate responsibly, irresponsibly, or not at all. I was relieved to hear the plaintiffs' lawyer finally bring up the adoption of children by gays & lesbians. I wish that he had connected the state's lawyer's repeated points about the positive economic impact of the marriage laws on the state's finances to the role that same-sex parents play in alleviating the state's financial burden by adopting the abandoned children of straight couples. In any case, it was a pleasure to listen to our side's arguments with little interruption from the judges—all three lawyers were pretty fabulous.

  • 260. JayJonson  |  January 11, 2015 at 3:56 pm

    I agree entirely with Zack. We are very lucky to have drawn the panel we did in the 5th Circuit, and they many indeed rule in our favor. However, if the Circuit rules en banc, then we will lose, just as we have lost every other gay rights case in that benighted circuit. I am, however, hoping that SCOTUS will soon grant cert to a marriage case and there will not be time for an en banc ruling at the 5th Circuit.

    The damage done to the judiciary by Republican presidents is extreme, and can only be undone by the election of Democratic Presidents and Senators.

    Ianbirmingham's idea that if only our legal organizations "knew how to fight" we would have had marriage equality long ago is astonishingly misinformed.

  • 261. F_Young  |  January 11, 2015 at 4:03 pm

    Here's video of a little experiment with same-sex couples holding hands. Check out the comments below the article too:

    Watch: Straight guys hold hands, discover homophobia exists

  • 262. JayJonson  |  January 11, 2015 at 4:06 pm

    Ianbirmingham's dogmatic assertion that "State courts are exactly the wrong place for marriage equality cases" is also stunningly uninformed. Without Massachusetts, Iowa, Connecticut, New Jersey, et al., there would be no marriage equality movement.

  • 263. F_Young  |  January 11, 2015 at 4:24 pm

    Three stars of controversial show 'My Husband's Not Gay' are spokesmen for discredited 'conversion therapy'

  • 264. VIRick  |  January 11, 2015 at 4:26 pm

    At the time, all of the multiple cases filed in New Mexico were within the state court system.

    Also, even until now, it would appear that any/all of the many same-sex divorce cases, regardless of actual state of residence, have been filed in the state court system. This holds true whether we're speaking about Florida, Alabama, Mississippi, Louisiana, Texas, Missouri, Kentucky, Nebraska, Wyoming, wherever.

  • 265. JayJonson  |  January 11, 2015 at 4:33 pm

    Yes, and, of course, the Prop 8 case itself came about as a result of the California Supreme Court ruling in favor of same-sex marriage being repealed by a proposition.

    The first victories for same-sex marriage were those in Hawaii and Alaska state courts. Though they were short-lived, they inspired the Vermont decision that required either same-sex marriage or civil unions (the legislature chose the latter, as did the New Jersey legislature). Then came Massachusetts, the importance of which can scarcely be overestimated.

    There were very good reasons to wait until we had a string of victories in state courts and legislatures before going to federal court.

  • 266. Ryan K (a.k.a. KELL)  |  January 11, 2015 at 4:37 pm

    I'd go even further and state that nice we have cert granted next Friday, there won't even be an opinion released from the 5CA, let alone a vote to go en banc. Once SCOTUS grants, everything will halt in the 1st, 5th, 8th, and 11th circuits and any districts below that.

  • 267. Ryan K (a.k.a. KELL)  |  January 11, 2015 at 4:39 pm

    I want to read what the one sentence order was!

  • 268. DrBriCA  |  January 11, 2015 at 4:50 pm

    I believe the reasoning behind the Equality Florida using the state court system was that the 11th Circuit had ruled against gay adoption rights for Florida just a few years prior, and the adoption rights were later secured via the state supreme court. Thus, when deciding where to initiate the marriage equality lawsuit, the state system seemed like a surer bet. The cases might have streamlined it to the state supreme court had said court not bounced a divorce case back to the court of appeals level a couple months ago.

    It seems likely that fears over relatively recent past Circuit rulings are what led to the lawsuits in the 11th (ruling against adoption rights) and the 8th circuit (Bruning against ME in 2006) being among the last cases filed.

  • 269. F_Young  |  January 11, 2015 at 4:50 pm

    "The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United States, 354 U.S. 476."


  • 270. Ryan K (a.k.a. KELL)  |  January 11, 2015 at 4:58 pm

    Dont I feel lazy! I'm going to blame watching the NFL playoffs divisional round. So happy to see the Cowbiys lose!

    Thank you very much for that. Wouldn't it be great if that is what we read on Monday for the cases in the 6CA?

  • 271. F_Young  |  January 11, 2015 at 5:17 pm

    Don't feel bad. Glad to be of service.

  • 272. RnL2008  |  January 11, 2015 at 5:57 pm

    So, it's truly about misleading the public to make it appear that these conversion therapy programs work, even though there is NO evidence to support their claims…….what a joke!!!

  • 273. davepCA  |  January 11, 2015 at 5:57 pm

    Whoa! That's a rather significant 'detail' for the producers of the show to leave out, isn't it? I was previously of the opinion that I should maintain a 'wait and see' attitude until I knew if the show would be irresponsibly portraying what these guys were doing as some kind of healthy alternative for gay people, or as something that is likely to lead to a miserable relationship based on lies and needless denial of a person's true self, or if it was just a harmless portrayal of a few bisexual guys who had chose to marry the opposite sex instead of the same sex.

    But this news about the participants hawking 'reparative therapy' sure changes all of that. This is going to blow up into a huge mess for TLC. Good.

  • 274. F_Young  |  January 11, 2015 at 8:12 pm

    Here's an opinion piece about the show:

    4 Reasons TLC’s 'My Husband’s Not Gay' is Dangerous for LGBT People.
    The reality TV special's 'ex-gay' rhetoric has drawn widespread outrage.

  • 275. VIRick  |  January 11, 2015 at 8:12 pm

    Baja California's First Gay Marriage Blocked by Claim Couple Is Not Sane

    On Saturday, 10 January 2015, a gay male couple's third attempt to marry in Baja California, Mexico, was not the charm. After more than 21 months of legal wrangling, Victor Aguirre Espinoza, 43, and Fernando Urias Amparo, 37, were set to become the first same-sex couple to marry in Baja California. The men, both hair stylists, have been together more than 10 years.

    A ruling from Mexico's Supreme Court paved the way for the couple to exchange vows in Mexicali, the state capital, but officials have resisted the ruling. According to "The San Diego Union-Tribune," the couple's homophobic nightmare continued on Saturday, when the men were greeted at City Hall by protesters wearing blue face masks. The building was locked down and a top city official told the men that the wedding had been canceled due to a complaint that the men “suffer from madness.”

    Their accuser was Guadalupe Gonzalez Sanchez, who along with her husband, conducts mandatory pre-marital talks for the city. Gonzalez Sanchez is also the president of the conservative Coalition of Baja California Families. She filed a complaint accusing the men of being “aggressive and impertinent” on Thursday, 8 January 2015, after she refused to certify their attendance. She also claimed that the men attempted to fool her by attending the talk accompanied by a woman.

    Abraham Medica, a member of the Mexicali City Council, called the delay “nothing more than an excuse. They're just doing this to buy time,” he said. “I don't know why they are making these people go through this torment.” The couple vowed not to give up trying.

    The Supreme Court of Mexico has declared 4 states' bans on same-sex marriage unconstitutional, Oaxaca, Baja California, Campeche, and Sinaloa. It takes 5 such rulings by the Supreme Court of Mexico before binding nation-wide precedent is established. However, the current law in both Colima and Chihuahua is presently before the court for review. One or the other, or both, could be struck down at any time. Still, both states are also under lower court orders to change their law to allow for same-sex marriage. If they were to do so before the Supreme Court acts, they could avoid becoming state #5 (in the nation-wide count). Both are in the process of attempting to comply, but it is impossible to determine in advance if either will ultimately be successful. Same-sex marriage will be coming to both Colima and Chihuahua either way.

    In the meantime, the obfuscation over the implementation of the Supreme Court's ruling in Baja California continues unabated (making the mess in Kansas seem tame).

    Church/religious weddings in Mexico are meaningless. Marriage licenses are issued by the state, and the civil wedding ceremony follows thereafter, taking place at city hall.

  • 276. F_Young  |  January 11, 2015 at 8:24 pm

    By the way, here's an article on the Georgia case:

    Gay marriage efforts in Georgia moving forward

  • 277. RnL2008  |  January 11, 2015 at 8:29 pm

    I watched the show for a bit tonight and these men are Gay, married because of their faith and I believe on the down-low because they have this scale for men they believe are "HOT" looking……..and one of the wives DOESN'T really trust her husband when he said he was going on a camping trip with some men he didn't really know and his wife just like froze………and when they were showing this one couple walking, the guy is like lowering his glasses to check out the dude who was running…….frankly, there's something fishy in Denmark……lol!!!

  • 278. flyerguy77  |  January 11, 2015 at 8:49 pm

    basically the show will be making fools out of the guys… and show them that they are in deep denial.. i have not watched the show yet i will be

  • 279. RnL2008  |  January 11, 2015 at 8:53 pm

    I agree with ya…….just the time I watched it tonight, you could see that at least one the so called wives is not as trusting as she claims.

  • 280. RnL2008  |  January 11, 2015 at 9:05 pm

    Thanks for the article…….whether these men are truly Gay or not, the premise is that somehow this is an okay way to live life and I DON'T agree with it……as there were 2 Gay men in the department store who basically said that….either be Gay and be with men or be straight and be married……but what these men are doing is being married and then on the down-low is just not a good message to send.

  • 281. VIRick  |  January 11, 2015 at 9:09 pm

    Here's what I wrote on 1 December 2014 on a different website regarding same-sex marriage in Chihuahua (with the same calculation applying to Colima):

    "So, the entire question as to the legaliztion of same-sex marriage now rests on the point as to which party acts first. If the state Congress of Chihuahua acts first, and passes the (court-ordered) legislation already introduced into the state's legislature, then same-sex marriage will become legal within the state of Chihuahua.

    Alternatively, if Mexico's Supreme Court acts first in the separate suit from that same state presently before it, and strikes down Chihuahua's ban on same-sex marriage as a result of the high court's decision, then same-sex marriage will become legal within the entire nation of Mexico, as this decision will be fifth, and therefore, the precedent-setting decision rendered by the high court.

    Either way, same-sex marriage is already a given result within the state of Chihuahua. State legislators there have only this choice: Do they want same-sex marriage for Chihuahua alone, or do they want same-sex marriage for the entire nation?

  • 282. F_Young  |  January 11, 2015 at 9:27 pm

    VIRick: "…then same-sex marriage will become legal within the entire nation of Mexico, as this decision will be fifth, and therefore, the precedent-setting decision rendered by the high court. "

    I was under the impression that there would need to be five identical decisions for each state to create a precedent that would bind that state's laws indefinitely.

    It was not my understanding that decisions from five states would suffice to set a binding precedent nationally. For one thing, I thought each decision had to be identical; wouldn't some of the states have different laws?

    In any case, your summary of the situation in Chihuahua is encouraging. It looks like Chihuahua might beat Alabama, the Dakotas, Georgia, much of Kansas, Louisiana, Michigan, Nebraska, Ohio, Tennnesee and Kentucky, which have already fallen behind Coahuila, Mexico City and Quintana Roo as far as marriage performance is concerned, and behind Vietnam, as far as constitutional bans are concerned.

  • 283. bythesea66  |  January 11, 2015 at 10:05 pm

    I actually don't know the law in Mexico, but I have to say 5 federal rulings setting a precedent seems far more sane and likely than five in each individual state in the entire country. Even without knowing much about the system there, I still suspect 155 identical rulings is not actually needed to create a nationwide change…surely.

  • 284. Mike_Baltimore  |  January 11, 2015 at 10:15 pm

    Actually, SCOTUS ruled in favor of the US that the material was obscene under US Statute.

    ( )

  • 285. VIRick  |  January 11, 2015 at 10:28 pm

    Believe it or not, but we're both correct, as Mexico's law is extremely complicated.

    Your comment applies to the "amparos," and the subseuent court-ordered injunctions. Example: A same-sex couple wants to marry, but live in a state which bars it. They file an "amparo." On a case-by-case basis, judges all over Mexico have been granting them a singular injunction, notwithstanding the state prohibition, allowing just that one couple to marry. Then, another couple does the same. Once 5 such "amparos" have been granted in any one given Mexican state, that particular state no longer has any further choice. It must change its law to comply.

    In Chihuahua, to date, 7 same-sex couples have separately won their "amparo." Thus, Chihuahua is "over the limit." Case #6 has been appealed to Mexico's Supreme Court and is pending.

    What concerns me more, though, is that Baja California has exhausted all further legal recourse, is under orders from Mexico's Supreme Court to comply, having had its bans declared unconstitutional, and still refuses to face reality.

  • 286. bythesea66  |  January 11, 2015 at 10:35 pm

    Thank you for explaining that. It is complicated but so explained makes quite a bit of sense. In other words, as in the US the bigots only have delay left.

  • 287. F_Young  |  January 11, 2015 at 11:10 pm

    VIRick: "What concerns me more, though, is that Baja California has exhausted all further legal recourse, is under orders from Mexico's Supreme Court to comply, having had its bans declared unconstitutional, and still refuses to face reality. "

    Thanks for all the information, Rick. It's really hard to get reliable information about what is happening in Mexico, due to the language barrier and the different legal system.

    Do you know if there is a recourse similar to contempt of court in the US by which the Supreme Court's decision could be enforced, through imprisonment if necessary?

  • 288. DrBriCA  |  January 11, 2015 at 11:29 pm

    In the Roth ruling, SCOTUS did rule that the pornographic (heterosexual) material Roth mailed out was obscene, and SCOTUS introduced new criteria for defining obscenity that would not be protected by the First Amendment.

    Shortly thereafter, in the ONE, Inc. vs Olesen ruling mentioned above, SCOTUS in essence ruled that homosexual content (in and of itself) is not obscene per se, which thereby reversed the convictions from the district & circuit courts.

  • 289. VIRick  |  January 12, 2015 at 12:19 am

    Yes, as a last recourse, the "Federales" can get called in, in much the same way as to what occurred in a number of southern states in the USA, after they were under court orders to desegregate, and refused to comply. Baja California seems to be pressing all the buttons, almost demanding that that occur, despite the fact that at least one other same-sex couple has already been married in the state.

    About 15 years ago, Mexico's federal constitution was calmly and quietly amended to bar discrimination based or both gender and sexual orientation. So constitutionally, it's quite clear, and has been interpreted as such throughout Mexico's judicial system. That's why they already have nationwide recognition of any legally-performed same-sex marriage, whether performed in-country (in the Federal District, Quintana Roo, or Coahuila) or abroad (New Mexico, California). Basically, they're fighting for in-state performance in the remaining 29 states of Mexico. So, on one level (performance), they're behind the USA, but on another (recognition), they're ahead.

    But the filing (and granting) of these individual "amparos" seems to be a feature unique to Mexico's legal system. To date, as a result, a small number of same-sex couples have actually been married in almost every state in Mexico (but not in Chiapas, Puebla, Tlaxcala, Hidalgo, and Tabasco).

    Why are the states which appear to be farthest behind located so close to Mexico City? Simple. Rather than fight a long legal battle in their home state, most same-sex couples simply travel the short distance to Mexico City, get married there hassle-free, and then return home where their marriage MUST BE recognized.

  • 290. F_Young  |  January 12, 2015 at 2:39 am

    VIRick: "The Supreme Court of Mexico has declared 4 states' bans on same-sex marriage unconstitutional, Oaxaca, Baja California, Campeche, and Sinaloa. It takes 5 such rulings by the Supreme Court of Mexico before binding nation-wide precedent is established. However, the current law in both Colima and Chihuahua is presently before the court for review. One or the other, or both, could be struck down at any time."

    So, the big news is that marriage equality is likely to go country-wide in Mexico in 2015, possibly before the USA gets it in June 2015. That would be really big, and could influence some Caribbean and Central American countries and the US even.

    Do you think that the Supreme Court of Mexico might be delaying its ruling in the Chihuahua and Colima state cases so as to allow the issue to percolate, i.e gradually build up marriage equality through grass roots efforts, as has apparently been the case for SCOTUS in the US?

    By the way, we may well find out the fate of the 6th Circuit cases in the US about four hours from now.

  • 291. DACiowan  |  January 12, 2015 at 3:42 am

    It would be so nice to color Mexico marriage blue on the world map. That plus a SCOTUS ruling would give us the five largest (by area) American countries (US, Canada, Brazil, Argentina, and Mexico).

  • 292. NorthernAspect  |  January 12, 2015 at 4:00 am

    Not being on the 9th circuit panel which adjudicated the issue, it seems that O'Scannlain wants to get his legal position on the record to offer assistance to Scalia, Clarence and Alito in their coming dissents on the issue. I bet his dissent will get specifically cited in a Supreme Court dissent.

  • 293. Zack12  |  January 12, 2015 at 4:28 am

    Indeed, same sex couples in those states would still be without marriage equality if not for the court rulings in those states.

  • 294. jpmassar  |  January 12, 2015 at 5:30 am

    #SCOTUS expected to issue orders from Jan 9 Conference at 9:30 am today; @lylden covered 1st set of orders —

    – ScotusBlog twitter

  • 295. DaveM_OH  |  January 12, 2015 at 5:35 am

    T-1 hour to Orders. Summary reversal would be so sweet…

  • 296. brooklyn11217  |  January 12, 2015 at 5:54 am

    The Scotusblog article has now changed…it now says the number of votes is unknown. Guess we were right!

  • 297. brooklyn11217  |  January 12, 2015 at 5:59 am

    Would be very nice! Not expecting that, but I was surprised by the cert denials in October.

  • 298. wes228  |  January 12, 2015 at 6:14 am

    They are not going to do a summary reversal.

  • 299. DaveM_OH  |  January 12, 2015 at 6:25 am

    Really unlikely, I know. But if Sotomayor, Kagan, Ginsburg, Breyer, and Kennedy all say "Nope, our minds are made up, ain't nothing gonna change them", the Chief just might go along and not drag SCOTUS through the mud of orals.

    1% chance.

  • 300. Sagesse  |  January 12, 2015 at 6:31 am

    Just musing while waiting. So a summary reversal would read something like…

    Because… NOT Baker v Nelson?

  • 301. DaveM_OH  |  January 12, 2015 at 6:32 am

    It would read:
    "Certiorari is granted. The judgment of the 6th Circuit Court is reversed. Justices Alito, Thomas, and Scalia dissented from this Order."

  • 302. DaveM_OH  |  January 12, 2015 at 6:33 am

    Orders up. No listing. Relisting for this Friday's Conference.
    Robicheaux denied Cert before Judgment.

  • 303. JayJonson  |  January 12, 2015 at 6:41 am

    Thanks for this excellent clarification of Mexico's marriage laws.

  • 304. wes228  |  January 12, 2015 at 6:41 am

    A summary affirmance/reversal is typically done in light of a recently decided Supreme Court decision. For instance, after the Hobby Lobby decision, they took all of the other cases whose cert petitions they were holding onto and summarily affirmed/reversed those cases "in light of Burwell v. Hobby Lobby."

    It would be horrific for the Supreme Court to just affirm or reverse a case without any reason whatsoever. That just is not done.

  • 305. JayJonson  |  January 12, 2015 at 6:44 am

    Why do you assume Roberts would join such a ruling? Are six votes needed for a summary reversal?

    I do not think Roberts would join such a decision. If his vote is needed for a summary reversal, it will not happen. But if the Windsor 5 can do it on their own, then it is a possibility, though not likely.

  • 306. Zack12  |  January 12, 2015 at 6:49 am

    I think cert will be granted by the end of the month
    As for Robicheaux, no surprises there. I can't think of any case where SCOTUS took a case that a circuit court hadn't weighed in on first.

  • 307. wes228  |  January 12, 2015 at 6:49 am

    Only five votes are needed for a summary reversal.

  • 308. Sagesse  |  January 12, 2015 at 7:06 am

    Registration required, but you should get five free articles a month.

    Fees Mount in Marriage Cases [National Law Journal]

    "Besides the more than $800,000 in fee awards and agreements on record so far, more than $2.6 million in attorney fee requests are pending, according to a National Law Journal review of federal trial and appellate court dockets. (Several fee awards are on hold pending appeals.)…

    "Plaintiffs who prevail in federal civil rights cases can collect legal fees from the losing side. Congress set up the fee-shifting rule as an incentive for lawyers to take on time-consuming and expensive civil rights litigation, said Deborah Ferguson, lead counsel for the couples who fought Idaho's gay marriage ban.

    "This is an example of the system working as intended," said Ferguson, an attorney with the two-lawyer Ferguson Durham firm in Boise.

    "Tony Rothert, legal director of the American Civil Liberties Union of Missouri, said fee awards were especially important in cases with no money damages at stake…."

  • 309. JayJonson  |  January 12, 2015 at 7:09 am

    Thanks for the clarification. It is unlikely that a summary reversal would be made on this issue, but if it is, you can be sure that it will be on a 5-4 vote.

    More likely, the Court will grant cert to one or more of the Sixth Circuit cases and rule 5-4 in our favor.

  • 310. The 8 Greatest Quotes fro&hellip  |  January 12, 2015 at 11:53 am

    […] During oral argument, Judge Higginbotham repeatedly asked the state lawyers how their arguments about restricting marriage to procreative couples squared with allowing infertile couples to marry. “What is the justification,” he asked, adding that to limit marriage based on sexual orientation is “not relevant” and that “there’s no fit” between the ban and the state’s explanation for it. […]

  • 311. The 8 Greatest Quotes fro&hellip  |  January 12, 2015 at 12:27 pm

    […] During oral argument, Judge Higginbotham repeatedly asked the state lawyers how their arguments about restricting marriage to procreative couples squared with allowing infertile couples to marry. “What is the justification,” he asked, adding that to limit marriage based on sexual orientation is “not relevant” and that “there’s no fit” between the ban and the state’s explanation for it. […]

  • 312. F_Young  |  January 12, 2015 at 4:34 pm

    Here's an article, with a photo of the couple:

    Mexico: First gay marriage in Baja California halted after couple deemed 'too insane to wed'

  • 313. F_Young  |  January 13, 2015 at 1:47 am

    Now, I don't know anymore.

    According to Box Turtle Bulletin, the order was:

    "This cause came on to be heard on the transcript of the record from the United States Court of Appeals for the Ninth circuit and was duly submitted. On consideration whereof, it is ordered and adjudged by this Court that the judgment of the said United States Court of Appeals, in this case, be, and the same is hereby, reversed and that this cause be, and the same is hereby, remanded to the United States district Court for the Southern District of California. Roth v. United States, 354 U.S. 476."

    Perhaps this was the ultimate order, while the one-liner in my previous post was the opinion.

    After its victory, the magazine boldly published:
    "By winning this decision ONE Magazine has made not only history but law as well and has changed the future for all U. S. homosexuals."

    …and, remarkably, this was not an exaggeration!

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