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South Dakota same-sex marriage ban struck down

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A federal district court has just invalidated South Dakota’s same-sex marriage ban.

The judge ruled that the ban violates same-sex couples’ fundamental right to marry:

In Loving, the Supreme Court addressed a traditionally accepted definition of marriage that prohibited Mildred Jeter and Richard Loving from marrying. Because Virginia’s laws deprived that couple of their fundamental right to marriage, the Court struck down those laws. Little distinguishes this case from Loving. Plaintiffs have a fundamental right to marry. South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.

The judge noted that a separate judgment will be entered and “the effects of that judgment will be stayed until the judgment is final.”

UPDATE: Lawyers for the plaintiffs plan to fight the stay:

Thanks to Equality Case Files for these filings


  • 1. brandall  |  January 12, 2015 at 1:00 pm

    YES! One of my best friends from Hollywood High visited us and his daughters in SF this week. He lives in South Dakota. He is a Lutheran minister and is very much in favor of ME. Over the weekend, I told him this ruling would be out any day….and voila!

  • 2. yyyAllenyyy  |  January 12, 2015 at 1:06 pm

    Months at best. It needs to go to the Circuit Court and then the Supreme Court. Odd are that the Supreme Court will make a final decision well before then.

  • 3. RnL2008  |  January 12, 2015 at 1:11 pm

    Wow, is this a surprise or what? Has a Stay been granted? Is South Dakota number 37? so many questions today…!!!

  • 4. brandall  |  January 12, 2015 at 1:12 pm

    For those who remain concerned about last week's O’Scannlain's dissent citing the "dosmestic relations exception" …. here is Judge Schreier's retort and I believe the correct direction:

    "Contrary to defendants’ unsupported assertion, the fact that states may generally regulate marriage does not automatically include marriage in the domestic relations exception. Because this case presents constitutional claims, it is not a domestic relations case and that exception is inapplicable."

  • 5. wes228  |  January 12, 2015 at 1:12 pm

    There is a stay pending appeal.

  • 6. wes228  |  January 12, 2015 at 1:12 pm

    She says that the decision is stayed pending appeal, so I imagine this does not go into effect until all appeals are exhausted.

  • 7. RnL2008  |  January 12, 2015 at 1:16 pm

    Thanks Wes:-)

  • 8. RnL2008  |  January 12, 2015 at 1:16 pm

    Nice, thanks for this info:-)

  • 9. RemC_Chicago  |  January 12, 2015 at 1:17 pm

    I take back my question. I misread the ruling. Looks like the Governor is not in favor of ME so an appeal is to be expected, I suppose. This is great news, particularly post-Sutton. Too bad she felt the need to impose a stay, post-SCOTUS.

  • 10. Pat_V  |  January 12, 2015 at 1:24 pm

    We are also very much in favor of YOU, Brandall :)

  • 11. Zack12  |  January 12, 2015 at 1:24 pm

    I think she imposed a stay because if she hadn't, the 8th circuit would.
    Keep in mind they have to do some footwork around Brunning, which is still binding precedent in the 8th.
    As for the governor of South Dakota, he was disinvited from a conference for the deaf because of his anti equality views.

  • 12. Raga  |  January 12, 2015 at 1:25 pm

    I don't understand the stay – I hope the Plaintiffs ask the judge to lift it on her own in light of the Supreme Court's refusal to stay Florida marriages.

  • 13. brandall  |  January 12, 2015 at 1:27 pm

    From the ruling, my favorite sentence from the "we need to go slow approach[excuse]" section … "South Dakota amended its Constitution to prohibit same-sex marriage. Therefore, it appears unlikely that the legislature or electorate is simply waiting to measure the impact of same-sex marriage in other states before deciding"

    This is a very well written and comprehensive ruling in many aspects and you should read it if you have time.

  • 14. Scottie Thomaston  |  January 12, 2015 at 1:31 pm

    Just updated my post: the plaintiffs' lawyers are going to fight the stay.

  • 15. brandall  |  January 12, 2015 at 1:35 pm

    Here is the heart of her reason for the gay=stay:

    "There is a substantial public interest in having stable marriage laws and avoiding uncertainty produced by a decision that is issued and subsequently stayed by an appellate court or overturned. “Encouraging a rush to the marriage officiant, in an effort to get in before an appellate court enters a stay, serves the interests of nobody.” Brenner, 999 F. Supp. 2d at 1292."

    This is now out-of-date logic considering Florida (as Raga mentions). Plaintiff's should appeal to the 8th and SCOTUS if necessary to have the stay lifted.

  • 16. davepCA  |  January 12, 2015 at 1:38 pm

    Wow. I think this ruling is really good. Marriage is a fundamental right, Strict Scrutiny applies, the ban violates Due Process as well as Equal Protection, every 'argument' from the state gets quickly debunked,…. a slam dunk, except for the dang stay.

  • 17. Zack12  |  January 12, 2015 at 1:40 pm

    I'd say they try the 8th and then SCOTUS.
    I have more hope for the latter then the former.

  • 18. Raga  |  January 12, 2015 at 1:41 pm

    I understand that, but first, her concerns are moot due to the Florida situation, and even if she is worried about the Eighth swooping in to grant a stay, she should have only granted a temporary stay until the Eighth Circuit decides the pending motion to lift stay in Missouri, and then decide whether to extend the stay or not.

  • 19. Raga  |  January 12, 2015 at 1:41 pm


  • 20. josejoram  |  January 12, 2015 at 1:44 pm

    I think should the 8th rejects to lift the stay, they should wait the final decision by them the 8th.

  • 21. SethInMaryland  |  January 12, 2015 at 1:45 pm

    don't really have much time to look but what does it say about brunning?

  • 22. josejoram  |  January 12, 2015 at 1:46 pm

    What about the argument about scotus not yet deciding on level of scrutiny?

  • 23. FredDorner  |  January 12, 2015 at 1:47 pm

    The Bruning precedent has been widely misunderstood and has been gutted by state and federal courts in Missouri in terms of whether it has any relevance to the marriage equality issue….it has none. Bruning concerned the right to equal access to the political process, not regarding an equal right to marriage. From the federal court in Lawson v Kelly:
    "The State also argues the Eighth Circuit conclusively rejected Plaintiff’s claims in 2006 when it decided Citizens for Equal Protection v. Bruning. The Court disagrees because the issue in Bruning did not involve the constitutionality of a state’s prohibition of same-sex marriages. Bruning involved an amendment to the Nebraska Constitution that declared that only marriages between a man and woman would be recognized in that state and that same-sex marriages would not be recognized. While this makes it appear that Bruning involves the same issues as this case, this conclusion is false: the plaintiffs in Bruning attacked the constitutional amendment by arguing that it deprived them of access to the political process. The Eighth Circuit characterized the plaintiffs’ claims as follows:

    "[Appellees do not assert a right to marriage or same-sex unions. Rather, they seek a level playing field, an equal opportunity to convince the people's elected representatives that same-sex relationships deserve legal protection. The argument turns on the fact that § 29 is an amendment to the Nebraska Constitution. Unlike state-wide legislation restricting marriage to a man and a woman, a constitutional amendment deprives gays and lesbians of “equal footing in the political arena” because state and local government officials now lack the power to address issues of importance to this minority.]

    "Bruning, 455 F.3d 859, 865 (8th Cir. 2006) (quotations omitted; emphasis supplied). The plaintiffs did not assert a right to same-sax marriage, so nothing in Bruning directly disposes of whether such a right exists."

    I believe it was in fact a state district court which first made that important observation.

  • 24. jpmassar  |  January 12, 2015 at 1:48 pm


    Is there a stay pending the filing of "a separate judgement" or is there a stay pending appeal? Or both.

    And what exactly does file "a separate judgement" entail and what is the time frame?

  • 25. brandall  |  January 12, 2015 at 1:50 pm

    I can't explain it either. She's very straight forward and no nonsense in her reasons for ruling against the ban. But, she's OVERLY cautious on the stay. Perhaps she figures it would go to SCOTUS anyway by the losing party and what's the point? That's not a good reason,.

  • 26. SethInMaryland  |  January 12, 2015 at 1:51 pm

    she knew the 8th woulld have likely granted a stay anyway

  • 27. FredDorner  |  January 12, 2015 at 1:55 pm

    From the state court ruling in Missouri v Jennifer Florida:

    "Citizens is likewise not controlling on the issues before this Court. Citizens does not involve an asserted right to marriage but rather “an equal opportunity to convince the people’s elected representatives that same-sex relationships deserve legal protection.” Citizens, at 865. It is well-settled that Missouri courts are not bound by Eighth Circuit decisions such as Citizens. State v. Storey, 901 S.W.2d 886, 899 (Mo. banc 1995); Kraus v. Bd. of Ed. of City of Jennings, 492 S.W.2d 783, 785 (Mo. 1973); State v. Johnson, 372 S.W.3d 549, 555 (Mo. App. 2012); McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162, 171 (Mo. App. 2006); Middleton v. State, 200 S.W.3d 140, 144 (Mo. App. 2006). Citizens is not controlling for several other reasons as well. The Citizens lawsuit arose as a Romer-style challenge to Nebraska’s constitutional amendment banning same-sex marriage. In Romer, the Supreme Court invalidated a Colorado constitutional amendment that could have prevented gay men and lesbians from securing legal protections through the political process. Romer, at 627. The litigation in the Colorado state courts focused on “the fundamental right to participate equally in the political process.” When Citizens was filed, it was filed in this same vein. To establish Article III standing, the plaintiffs’ “alleged injury [was] diminished access to the legislative process.” Citizens, at 864. The Eighth Circuit framed the Equal Protection Clause issues in the case as involving only this alleged injury:

    "[Relying primarily on Romer, Appellees argue that [the Nebraska law] violates the Equal Protection Clause because it raises an insurmountable barrier to same-sex couples obtaining the many governmental and private sector benefits that are based upon a legally valid marriage relationship. Appellees do not assert a right to marriage or same-sex unions. Rather, they seek a level playing field, an equal opportunity to convince the people’s elected representatives that same-sex relationships deserve legal protection. . . . The argument turns on the fact that [the Nebraska law] is an amendment to the Nebraska Constitution. Unlike statewide legislation restricting marriage to a man and a woman, a constitutional amendment deprives gays and lesbians of equal footing in the political arena because state and local government officials now lack the power to address issues of importance to this minority.]

    "Id. at 865. The Eighth Circuit resolved this issue based upon its analysis that “[w]hile voting rights and apportionment cases establish the fundamental right to access the political process, it is not an absolute right.” Id. at 866. Thus the core constitutional issue in Citizens was whether a state constitutional amendment that banned same-sex marriage was unconstitutional because it blocked gay men and lesbians from equal access to the political system. The core constitutional issue before this Court , whether state laws unconstitutionally prevent same-sex couples from marrying, was not even raised by the parties in Citizens. Id. at 865 (“Appellees do not assert a right to marriage or same-sex unions.”). In addition, the overwhelming judicial consensus today runs contrary to the Eighth Circuit’s Citizens decision. Like Baker, the rationale of Citizens has been largely, if not entirely, abandoned. For example, the Citizens court’s decision rested on its view that states have an “absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created,” Citizens, at 867. This is a view that the Supreme Court contradicted by ruling in Windsor that state laws defining marriage must respect constitutional rights. Windsor at 2691. The rational basis approach as applied in Citizens was also uprooted by Windsor. See SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471, 481 (9th Cir. Jan. 21, 2014). Moreover, the Citizens court found that the marriage laws at issue were justified by the state interest in “steering procreation into marriage.” Citizens at 867. The State has not advanced this argument in this case, perhaps because it has failed rational basis review in courts that have considered it post-Windsor. Bourke v. Beshear, 2014 WL 556729, at *8 (W.D. Ky. Mar. 19, 2014). The now-prevailing law is that “any governmental interest in responsible procreation is not advanced by denying marriage to gay and lesbian couples.” Citizens does not reflect the current state of the law. It is not controlling here."

  • 28. RQO  |  January 12, 2015 at 2:02 pm

    The judge most likely LIVES in South Dakota, and has none-too-liberal neighbors and relatives. By the time the stay situation is resolved, she's hoping eveyone will have forgotten she got the ball rolling.

  • 29. brandall  |  January 12, 2015 at 2:09 pm

    Let's say you are correct in your thinking, "The judge most likely LIVES in South Dakota, and has none-too-liberal neighbors and relatives."

    Then she should not be a Federal judge. I'm not arguing against your theory, it is just sad to see an automatic stay after all the SCOTUS stay denials since October, 2014.

  • 30. RemC_Chicago  |  January 12, 2015 at 2:31 pm

    That's disgraceful! He was brought up by deaf parents. For shame.

  • 31. FredDorner  |  January 12, 2015 at 2:39 pm

    Also note footnote #2 from the South Dakota ruling:

    "The court found that Baker v. Nelson, 409 U.S. 810 (1972), was no
    longer binding authority in light of doctrinal developments.

    "The court also found that Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), was confined to whether Nebraska’s same-sex marriage ban violated a fundamental right to equal access to the political process and did not address the fundamental right to marriage."

  • 32. brandall  |  January 12, 2015 at 2:48 pm

    Page 23: "Neither party cites the authority under which a stay pending appeal may be granted or denied." So, she went ahead and applied her own thinking on the standard 4-part rules for issuing a stay without taking the events of the past 4 months into consideration.

    I wonder if the Plaintiff's now file an update in this case with the latest Hinkle/SCOTUS data, that will make a difference. After all, SCOTUS refusal to maintain the Florida stay is a definitive signal SCOTUS is not likely to reverse the lower court. But, of course, that is an extra step and they should just start up the ladder with the 8th and then SCOTUS.

  • 33. brandall  |  January 12, 2015 at 3:07 pm

    First legal SS divorce issued in Kentucky. And here's how the Plaintiff's cleverly pulled it off:

    [Judge] O'Reilly issued the decision Dec. 29, but [Plaintiff's lawyer ]Waterman said he waited until now to make it public so that it would become final and couldn't be challenged. He said the ruling cannot be appealed and is now precedent in Jefferson County and can be cited but is not controlling in other cases statewide. O'Reilly did not seek re-election and retired at the end of the year.

    It's a step in the right direction and must gnaw at Gov. Beshear that his AG was not on top of this!

  • 34. davepCA  |  January 12, 2015 at 3:27 pm

    I wasn't clear on how this could happen until I read this part of the story:

    "But no one, including Gov. Steve Beshear, who has defended the state's ban on gay marriage, intervened to try to prevent the divorce."

    Oops! : )

  • 35. Eric  |  January 12, 2015 at 3:28 pm

    A stay needs a reason. I suspect this one will get challenged.

  • 36. Eric  |  January 12, 2015 at 3:32 pm

    Our interests were served quite well when we got married in California in 2004. The state later invalidated that marriage, but after a decade of research, we see that there was no lasting harm to the state.

    If California can invalidate thousands of marriages, surely South Dakota can handle a few hundred, if needed.

  • 37. Eric  |  January 12, 2015 at 3:35 pm

    How does she justify the stay, given the denial of a fundamental right?

  • 38. brandall  |  January 12, 2015 at 3:37 pm

    Eric, go up in this article to Raga's thread he started about the stay.

  • 39. VIRick  |  January 12, 2015 at 4:04 pm

    Brandall, Kentucky's Attorney-General, on 1 July 2014, shortly after Judge Heyburn's second ruling striking down Kentucky's ban on same-sex marriage in its entirety, the one containing the gem, "These arguments are not those of serious people," in a rather emotional speech, announced that he and his office staff had stopped defending Kentucky's indefensible same-sex marriage ban and would not pursue an appeal.

    So, it's all up to Governor Beshear and his second-rate outside counsel (who may have only been hired to defend the appeal of "Bourke/Love v. Beshear"). If anything, I would argue that Governor Beshear should blame himself for having so stupidly taken on that appeal, against his own Attorney-General's advice. So, I see today's announced decision in "Romero v. Romero" as pay-back directed at the governor.

    Still, I like how the plaintiff's lawyer played it safe by "letting sleeping dogs lie."

  • 40. Raga  |  January 12, 2015 at 4:15 pm

    I find it hard to believe that she had no idea at all about what happened with Florida and SCOTUS, even if Plaintiffs didn't bring it to her attention by means of a formal filing (which, it beats me why, they didn't do!) How can her application of the standard 4-part rule take priority over SCOTUS's?

  • 41. Scottie Thomaston  |  January 12, 2015 at 4:16 pm

    The judgment was filed a few minutes after the opinion/order, so it's out already. With the judgment there's a stay (the stay is also referenced in the opinion itself though.) So basically, the stay is in effect but the lawyers for the plaintiffs are going to fight it.

  • 42. Wolf of Raging Fires  |  January 12, 2015 at 4:39 pm



  • 43. jpmassar  |  January 12, 2015 at 4:41 pm

    Have there been any other examples of "fighting a stay" in the marriage cases? E.g., no one tried to fight Judge Walker's stay.

    Does the fight first go back to the "staying" judge or to the appeals court?

  • 44. VIRick  |  January 12, 2015 at 6:28 pm

    Wolf, are those wiggles for the South Dakota decision, the Kentucky decision, or both??

  • 45. brandall  |  January 12, 2015 at 6:59 pm

    I'll answer the 2nd question first. To deny a stay requires an appeal to the 8th Court of Appeals in this case. Were they to uphold the stay, you would appeal to SCOTUS.

    "Fighting a stay" had multiple phases which made it hard to predict what the heck SCOTUS was doing.

    Phase I – If I remember correctly (seems like 10,000 case ago), they upheld the stays (for both getting married and you got married) for Utah. This put all the plaintiffs in a hold pattern for any new requests. EoT'ers were furious because it certainly appeared the 4-point rule for granting a stay was not being adhered to properly.

    Phase II – Then, we had the 3 requests for cert (all had stays in place) based on Appeals Court rulings and SCOTUS denied the certs and then lifted the stays in October, 2014. Particularly annoying to me was any LACK OF REASONING for first upholding, then denying the stays in October.

    Now we are in gay=stay Phase III. We had Florida where there was a 91-day temporary stay pending appeals. But, there was no 11th AC ruling (unlike October) and yet SCOTUS denied the request to keep the stay in place.

    So, "if" there is a new pattern, then SD should see the say denied by SCOTUS. Big caution: I am not predicting, I am only following what they have been doing.

  • 46. brandall  |  January 12, 2015 at 7:05 pm

    Neither, he is warming up for a blind date tonight. Sorry, couldn't resist.

  • 47. brandall  |  January 12, 2015 at 7:11 pm

    I don't know how you are keeping track of who said what, which case, which judge, what state, when, etc. It was so easy until sometime around July. But, I do have ""These arguments are not those of serious people," in my best ME quotes ever log.

    Ragavendran and I will be sure to use that quote when we write our Complete History of Marriage Equality book. Since Boies and Olsen are too busy, will you write the Forward?

  • 48. VIRick  |  January 12, 2015 at 7:16 pm

    Brandall, I'm speechless. That can be taken SOOOOOOO wrong!!

    Even if it's true. LOL

    And if it were true, that could prove quite interesting, especially if we wiggle back..

  • 49. VIRick  |  January 12, 2015 at 7:53 pm

    Brandall, moving past Wolf's dating habits and proclivities, how much of Kentucky's constitutional prohibition on same-sex marriage has been overturned? And having been done in state court, what effect will this ruling have on Kentucky's appeal before SCOTUS? How much, if any, of "Bourke/Love v. Beshear" is now rendered moot, now that there's no chance for appeal in "Romero v. Romero?"

    From the "Courier-Journal" report:

    "O'Reilly squarely ruled that barring a same-sex couple from divorcing in Kentucky violates the state constitution's guarantee of equal protection under the law and the right of citizens to 'enjoy and defend their lives and liberties.'

    "'The Constitution of Kentucky prohibits the exercise of absolute and arbitrary power over lives' of its residents, O'Reilly added, 'even if that exercise is approved of by the largest majority.'"

  • 50. seannynj  |  January 12, 2015 at 8:26 pm

    Is this win #60 for us (or rather SD was)? I can't believe we've only taken 4 losses so far and it's almost over.

  • 51. DrBriCA  |  January 12, 2015 at 8:38 pm

    She doesn't really address Bruning in this decision, but I believe she did tackle it head on last month when she denied the state's request to dismiss the lawsuit.

  • 52. DrBriCA  |  January 12, 2015 at 8:39 pm

    She relied on the deprivation of a fundamental right as the reasoning to toss the ban, both for due process & equal protection, so she skated around the questions of scrutiny or animus.

  • 53. DrBriCA  |  January 12, 2015 at 8:50 pm

    I believe the ruling impacts only the judge's specific county, so it does not have state-wise effect.

    It's sort of like my pet peeve about Louisiana's coloring on the ME maps, as it does have a pro-ME ruling, but it never gets colored accordingly since it was a local level in the state court system without statewide precedence (and stayed), so it doesn't have the same power as the district federal opinion that was anti-ME.

  • 54. RnL2008  |  January 12, 2015 at 9:41 pm

    Why would a Federal Judge's ruling be specific to ONLY one County? That seems a little strange.

  • 55. scream4ever  |  January 12, 2015 at 9:41 pm

    Yah if they deny the stay request after the 8th Circuit grants them it's really over. I expect the one in Missouri to be lifted regardless since no one from the state government is for keeping it in place.

  • 56. RnL2008  |  January 12, 2015 at 9:42 pm

    Kentucky decision?

  • 57. DACiowan  |  January 12, 2015 at 10:28 pm

    The Illinois case last March was in federal court, but applied to only Cook County since only county officials were named.

  • 58. RnL2008  |  January 12, 2015 at 10:31 pm

    See, to me, it makes NO sense NOT to include the ENTIRE State……but then look at the mess in Kansas ALL because someone DOESN'T want to comply!!!

  • 59. scream4ever  |  January 12, 2015 at 10:33 pm

    What's the fourth one? The 6th Circuit, Louisiana, and Puerto Rico are all that I can remember.

  • 60. DACiowan  |  January 12, 2015 at 10:36 pm

    Illinois seems to be that the couples simply missed naming a state-wide defendant. The judge in her ruling even stated that had there been someone from Springfield named in the lawsuit, we'd have had Illinois three months earlier.

    Kansas though is a state-wide decision and unfortunately the judge there is in no hurry to tell Brownback to act like an adult. I hope we get a final clarification once the current briefing is done, so sometime in early February, but I'm expecting more disappointment from Crabtree.

  • 61. davepCA  |  January 12, 2015 at 11:11 pm

    Off topic, but some really good news – I just saw that Kamela Harris will be running for a California Senate position, to replace Barbara Boxer, who will not be running for re-election. Harris is a huge ally for LGBT rights.

  • 62. DrBriCA  |  January 12, 2015 at 11:24 pm

    This ruling for Kentucky was in the state family court system, so it has limited jurisdiction. I agree with you that a federal district judge ruling a law unconstitutional should have statewide meaning. If the state law is unconstitutional for part of the state, it logically follows that it's unconstitutional throughout the state!

  • 63. VIRick  |  January 12, 2015 at 11:48 pm

    According to Freedom to Marry's tally, South Dakota is win #58 since the "Windsor" decision.

    And to answer scream4ever's question below, loss #4 was thrown out there by some jack-ass state judge in Roan County, Tennessee, who denied a same-sex divorce by applying circular reasoning.

  • 64. VIRick  |  January 12, 2015 at 11:57 pm

    Rose, the latest Kentucky decision occurred in state court, specifically in Jefferson County (Louisville), in an under-the-radar case, "Romero v. Romero."

    Check Brandall's link for further particulars. A state court judge in Family Court, threw out some portion of Kentucky's law and state constitution (primarily on the subject of out-of-state recognition) in granting a same-sex couple a divorce,– and did it two days before he retired.

    Still, in my mind, the article is not overly precise and clear as to what got thrown out. Did he really overturn the Kentucky ban on out-of-state recognition, or did he dodge around it somehow in granting the couple their divorce?

  • 65. scream4ever  |  January 13, 2015 at 12:04 am

    Yah I've never really counted the divorce cases as they are technically bound by state law and usually aren't seeking to overturn the bans directly. I believe we've also lost similar cases in Alabama and Nebraska.

  • 66. RnL2008  |  January 13, 2015 at 12:07 am

    I just saw that on the news…….will miss her as the AG, but I think she'll do a helluva a job as a Senator!!!

  • 67. RnL2008  |  January 13, 2015 at 12:08 am

    I will take a look….so much is happening and it's tough keeping it all sorted out sometimes…..thankfully, I have you folks here to help keep the confusion down and that when I pass it on to my other friends on another site…'s fairly accurate.

  • 68. VIRick  |  January 13, 2015 at 12:49 am

    "I don't know how you are keeping track of who said what, which case, which judge, what state, when, etc."

    Brandall, to be fair, I've been maintaining a separate cached archive of same-sex marriage cases,– and decisions,– dated, annotated, and filed state-by-state, circuit-by-circuit, country-by-country, on a different website for the past 1 1/2 years (ever since "Windsor").

    I did have to refer to my Kentucky file to ressurrect most of those details (except for Judge Heyburn's memorable quote, and the fact that that quote made the Kentucky Attorney-General give up on pursuing an appeal and crawl under a rock).

    I was an unregistered "lurker" here long before I joined EoT. Looking back, apparently I was intimidated by the sheer expertise exhibited by people like yourself and Raga (and LOTS of others). Finally, the last-minute tension and hyper-excitement in Florida (perceived in both Ryan and myself) finally tipped my hand,– I simply could not restrain myself any longer.

    But, of course, I can do the forward for you. That's so charmingly sweet of you to ask.

  • 69. F_Young  |  January 13, 2015 at 1:01 am

    VIRick: "Did he really overturn the Kentucky ban on out-of-state recognition, or did he dodge around it somehow in granting the couple their divorce? '

    I tend to agree, Rick.

    I don't know the law in Kentucky, but in order for the ban to be thrown out, I would have expected that the Kentucky Attorney General would have had to be properly advised that the constitutionality of the ban was being challenged so that the state could defend it.

    If such a notice was not given, I would expect that the decision would apply only to the plaintiffs in the case and would not set a precedent on the constitutionality of the ban at all, even at the county level.

    Perhaps the lawyer was retained not to challenge the constitutionality of the ban, but only to get the divorce with a minimum of cost, time and publicity, and so the lawyer deliberately avoided giving the required notice.

  • 70. guitaristbl  |  January 13, 2015 at 2:20 am

    Again I am late to the party but another one bites the dust ! I was expecting that ruling for quite some time now..! Which leaves just 4 bans not struck down either in federal or state court (to include the Louisiana ruling as well) ! I do hope the stay is fought and lifted. I will read the ruling later but I already like the spirit of the judge given the quote above.

  • 71. bythesea66  |  January 13, 2015 at 2:57 am

    It's not a federal judge. It's a family court judge.

  • 72. Elihu_Bystander  |  January 13, 2015 at 5:07 am

    Correct me if I am wrong, however, in the case of “deprivation of a fundamental right” that it is established precedent that strict scrutiny applies.

  • 73. Raga  |  January 13, 2015 at 6:11 am

    Correct. SCOTUS hasn't explicitly established the level of scrutiny for sexual orientation as a suspect class. However, it is well established that the denial of a fundamental right, no matter what the class of people being affected, triggers strict scrutiny under both due process and equal protection.

  • 74. Raga  |  January 13, 2015 at 6:17 am

    I'm glad you didn't stay intimidated and decided to start participating here! And thanks for agreeing to write the foreword for our book!

  • 75. JayJonson  |  January 13, 2015 at 6:39 am

    IIRC, in Florida the eleventh circuit denied Bondi's request for an extension of the stay and Bondi then appealed to SCOTUS, who also denied her request for an extension of the stay.

    We do not yet have a precisely similar situtation. I.e., the eighth circuit has not yet ruled on the question of the stay. I think it is pretty clear that SCOTUS would lift the stay if the eighth circuit lifted the stay. But I don't whether SCOTUS would overrule the eighth circuit if they denied the request to lift the stay.

    Please correct me if my facts are wrong here re the Florida parallel.

  • 76. JayJonson  |  January 13, 2015 at 6:47 am

    I can see how a state judge ruling on the basis of a state constitution could declare a state's ban on same-sex marriage unconstitutional in the absence of any ruling based on the US Constitution from a federal court.

    But how can a state judge declare that a ban on same-sex marriage is unconstitutional after a federal court of appeals has declared a state's ban on same-sex marriage is constitutional?

    There must be something more going on here. Probably the state judge found a way to grant a divorce without saying anything about the constitutionality of the ban on same-sex marriage. I believe a Texas judge did that some time ago (but then was reversed).

  • 77. Fledge01  |  January 13, 2015 at 6:56 am

    Burning is and always has been no more binding on the 8th than any other Circuit. The footwork they need to do is exactly word for word the same footwork every other judge has used to dismiss the current relevance of Burning.

  • 78. brandall  |  January 13, 2015 at 7:02 am

    Yes, you are correct and that fact (the 8th has not ruled on a stay) is important to make this the same scenario as Florida.

  • 79. Fledge01  |  January 13, 2015 at 7:07 am

    I agree. It is very different for SCOTUS to allow a situation, where there is no stay in place, to continue, than it would be for SCOTUS to remove a stay where one is in place. The precedent that SCOTUS set in Florida was that it would defer to the lower courts decision of whether they want a stay in place or not.

  • 80. seannynj  |  January 13, 2015 at 7:08 am

    Divorce cases align more with "recognition" since in theory a state has to recognize that same-sex couples can be married in order to divorce them.

  • 81. brandall  |  January 13, 2015 at 7:19 am

    I lurked on EoT for 5 years. Early last year I finally created an account, logged in, posted a comment and then waited to get slapped down for saying something stupid or wrong (many EoT'ers have a lot of legal experience and have strong opinions). I was very fast on the "delete comment" link.

    But, then I developed a passion for finding articles related to ME and then reading all the briefs and rulings to the point where I could understand the details and nuances. Of course, that took reading thousands of EoT'ers comments to help with the learning curve. It's amazing what anyone can learn and absorb (no matter what age) when there is passion behind it.

    And then there is my humor or lack there of. It comes from my father who was a constant Irish joker. I enjoy making people chuckle or laugh. If I were 18 again, I would want to be a full-time political satirist.

    And, I sure wish I had catalogued all the legal docs as you have done. In hindsight, I had no idea (and neither did anyone else) this would evolve into 31 states with lawsuits and all of the twists and turns in the past 13 months.

  • 82. Fledge01  |  January 13, 2015 at 7:19 am

    The initial, lowest courts, to here a case do not set binding precedent. Binding precedent is only applicable from a a higher court onto all the lower courts underneath it. A ruling by any court is persuasive on other courts at its same level and even is persuasive on itself, but not binding on anybody except only those courts under it.

  • 83. brandall  |  January 13, 2015 at 7:25 am

    There was a state court that ruled favorably on a SS divorce case. See my root comment higher up for the details.

  • 84. brandall  |  January 13, 2015 at 7:31 am

    And…I am happy Gavin Newsome is not going to run for the spot. I will always be deeply grateful to Gavin for kickstarting marriage equality in 2004. But, I believe he is a hands-on kind of guy and hope he runs and wins for Governor.

  • 85. brandall  |  January 13, 2015 at 7:33 am

    To EVERYONE in this thread. I will try to find the filings and rulings later today. State case documents are tricky to find in most states. But, in this case, it would be interesting to see who filed on what basis and how the judge was able to kill the ban in this single county.

  • 86. ebohlman  |  January 13, 2015 at 8:19 am

    The simple answer is that Federal appellate court rulings aren't binding on state courts; SCOTUS rulings are the only Federal rulings that are.

  • 87. StraightDave  |  January 13, 2015 at 9:02 am

    That was exactly Hinkle's reasoning in FL. His order only directly enjoined one defendant, but his underlying constitutional interpretation meant that the Constitution must now be read as invalidating the state law, and so the entire state must act accordingly or risk being in violation.

  • 88. Zack12  |  January 13, 2015 at 9:15 am

    Indeed, plus he has a lot of baggage that people wouldn't care about if he ran for governor but Senate..nope.

  • 89. VIRick  |  January 13, 2015 at 10:18 am

    "And then there is my humor or lack there of."

    Brandall, when the gods decided to make us gay, they bestowed upon us a "double-humor" gene, which, if used wisely, can and should be our primary defense weapon to crush the bigots. I can go from being an acid-tongued bitch, to a flamboyant Drama Queen, to a sweet southern charmer that can get the pants off of any man (literally and figuratively).

    You see how I "own" the gayness of it all? You have a lot of those same qualities, and definitely interject the self-deprecating humor of it into the situation at hand to passionately disarm the opposition. So does Ryan. So does Rose (amazingly!). And so does Hop. But Hop needs some serious short-leashed "discipline training," the prospect of which actually turns me on and gets me rather excited. Apparently, I like "bad-boys," too.

    In any case, I wish I had been cataloguing and recording events as they happened from a slightly earlier point in time. I became serious about it right after New Jersey obtained marriage equality. At that point, it became fairly obvious to me that we were going to have to fight like that in the courts, dirty New Jersey-style, by any means possible, state-by-state, one victory at a time, especially given that most of the remainder were "die-hard' red states with state constitutional amendments banning our very existence.

  • 90. VIRick  |  January 13, 2015 at 11:11 am

    Thanks, Dave. That's where my thinking was heading, but you've phrased it in better language. The Kentucky judge really did apply Hinkle-like reasoning, but utilized a clause in the Kentucky state constitution to invalidate a state law, with direct implications for his county, and indirect implications for the rest of the state.

  • 91. ebohlman  |  January 13, 2015 at 6:19 pm

    I suspect that the IL plaintiffs simply took the path of least resistance; they knew that Cook County clerk David Orr (who was one of the first IL officials to come out in favor of marriage equality about 16 years ago) wouldn't defend the suit and that no statewide officials would defend in his stead (based on a previous state court case). Cook County has about 40% of the state's population.

  • 92. franklinsewell  |  January 13, 2015 at 8:23 pm

    I have it from Facebook that the judge has a gay cousin.

  • 93. josejoram  |  January 14, 2015 at 3:17 am

    The last paragraph of your quote (text from the Kentucky Constitution) is the most I like…"The. Constitution of Kentucky prohibías the exercise of absolute and arbitrary power over lives of it's residents…

  • 94. josejoram  |  January 14, 2015 at 3:21 am

    I'd love to have the adress of your web site in order to include that jurisprudence in cases here in Venezuela.

  • 95. guitaristbl  |  January 15, 2015 at 8:43 am

    Just had the time to read this decision and I have to say I am very impressed with the way judge Schreier discusses the slippery slope arguments of the defendants concerning polygamy, incest etc.

    "Defendants also argue that defining the right in this case as a fundamental right to marriage calls into question the ability of the state to regulate marriage based on polygamy and incest.
    See, e.g., Docket 41 at 19. Regulations on polygamy or incest ARE NOT AT ISSUE IN THIS CASE. Additionally, this argument is logically flawed and distracts from the distinct issue presented by same-sex marriage bans. In Zablocki , the Supreme Court distinguished a complete prohibition on marriage from reasonable state regulations on marriage"

    She could have just stopped at the "not at issue in this case" honestly. This is the most pragmatic approach to the issue. How can you decide on an issue that was not asked or briefed ?

    Also you got to love this sneaky, indirect message to the defendants on footnote 11 :

    "The viability of state-imposed limitations on marriage based on polygamy, incest, and age of consent seems to be questioned only by those attempting to find a reason why same-sex marriage could undermine the institution of marriage as a whole."

    It's the usual line I see when this slippery slope comes up : "Christians think too much about marrying their animals, children, siblings etc, more than anyone else". Schreier seems to agree..!

    And this is the best one :

    "In the years following Loving ,Zablocki , and Turner , states have maintained laws on polygamy, incest, age of consent, and other marriage-related issues despite the Supreme Court’s classification of marriage as a fundamental right. Importantly, the Supreme Court has never held that there is a protected privacy or liberty interest in polygamy or incest, but the Supreme Court has extended constitutional protection to same-sex intimate conduct and relationships. This court is not persuaded that adhering to long-standing Supreme Court precedent and defining the right at issue here as a fundamental right to marriage will curtail South Dakota’s ability to otherwise regulate marriage in ways that do not interfere with constitutionally protected interests."

    Which is very true from a judicial point of view. SCOTUS has never invalidated an incestious conduct ban or a ban criminalizing polygamy as a living practice (something partially the district court in Utah did about the same time the marriage ban fell but I have no news on what happened there). On the other hand SCOTUS has spoken numerous times on LGBT rights beginning from decriminalization in Lawrence, going to the right of local autorities to enact ordinances in Romer and finally recognizing federally validly performed marriages in Windsor. None of the other issues opponents present have a similar judicial history, not even close.

    And on footnote 12 :

    "[…]laws banning polygamy and incest only prevent people from marrying in certain limited instances,whereas South Dakota’s ban on same-sex marriage prevents homosexual South Dakotans from marrying at all."

    Which is a quote that makes sense but encourages a much deeper debate on what sexual orientation is. For example a polygamous man who wants to marry women is heterosexual, he has a sexual orientation that describes his attraction. Is sexual orientation more than an attraction to gender ? Same with a person in an incestuous relationship. A woman in a relationship with her brother/father is heterosexual, she also has a defined sexual orientation.
    If we agree that attraction is defined by the gender you are attracted to and not the number of people or consanguinity then the above quote is very correct indeed.

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