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Attorney General Eric Holder to urge Supreme Court to allow marriage equality in all 50 states

LGBT Legal Cases Marriage equality Marriage Equality Trials

United States Attorney General Eric Holder has released a statement on the Supreme Court’s decision today to hear challenges to same-sex marriage bans from four states. In the statement, he notes the Justice department will file an amicus curiae (“friend of the court”) brief supporting marriage in all 50 states.

Here is the statement: “WASHINGTON — Attorney General Eric Holder released the following statement after the U.S. Supreme Court agreed to hear four cases on same-sex marriage equality:

“After the Justice Department’s decision not to defend the constitutionality of Section 3 of the Defense of Marriage Act, the Supreme Court sent a powerful message that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This landmark decision marked a historic step toward equality for all American families.

“The Supreme Court has announced that it will soon hear several cases raising core questions concerning the constitutionality of same-sex marriages. As these cases proceed, the Department of Justice will remain committed to ensuring that the benefits of marriage are available as broadly as possible. And we will keep striving to secure equal treatment for all members of society—regardless of sexual orientation.

“As such, we expect to file a ‘friend of the court’ brief in these cases that will urge the Supreme Court to make marriage equality a reality for all Americans. It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love.””

The Justice Department had urged a middle-of-the-road solution during the Prop 8 litigation. However their ultimate view, that laws impacting gay and lesbian people deserve heightened judicial scrutiny, would likely have led to invalidating all states’ marriage bans anyway had the Court resolved that case on the merits.

444 Comments

  • 1. brandall  |  January 16, 2015 at 3:19 pm

    I can just picture Holder, along with EVERY state, DC and Puerto Rico filing briefings! Then there will be the anti-ME orgs and the religious organizations. 10 years worth of reading.

  • 2. Jaesun100  |  January 16, 2015 at 4:12 pm

    I am paranoid that we can't get yes on both ….why the need for two?
    I'm hoping it's so the states like Kansas have no wiggle room . Or either they gonna give states a lot of rights and controls over defining marriage. I'm cautiously optimistic & nervous all at the same time …Hurry up June!

  • 3. Raga  |  January 16, 2015 at 4:18 pm

    An amusing typo in Lyle's post:
    "The Court is scheduled to hold its final session of oral arguments from April 20 through 29, so the same-sex marriages will be scheduled during that time. The order issued on Friday did not set that date; that will be done later."
    http://www.scotusblog.com/2015/01/court-will-rule

  • 4. Raga  |  January 16, 2015 at 4:26 pm

    I've said it before that I'm cautiously optimistic about Kennedy voting yes on both of these questions. I think having two questions could divide the dissenters, e.g., Roberts/Alito could join the majority on the second question but not the first, whereas Scalia and Thomas could flatly dissent entirely. Like the rephrasing of the Plaintiffs' questions to allow for more than just a fundamental-rights-based analysis, having two questions could also allow for division among the majority on the rationale used to say "yes" to both questions. Having one or two concurring opinions would provide further guidance to lower courts in future gay rights litigation.

    I am just trying to come up with other valid justifications for the splitting into two questions, but the possibility that they did this to keep the door open on potentially splitting the baby still remains – one that I pray won't come to pass.

  • 5. brandall  |  January 16, 2015 at 4:26 pm

    Yes, they are going to have the 1,000 plus amicus curaie briefs read aloud 24 hours a day. Or perhaps Ted Cruz is going to read Cat In the Hat hoping Sotomayor will retire.

  • 6. Jaesun100  |  January 16, 2015 at 4:38 pm

    Yeeee first thing comes to my mind they don't think its a fundamental right and they will let states decide ….
    I like your analysis better , it gives me hope!!!!! I hope also, Ruth knows what she is doing! In June it will be be really Epic or Disasterous.
    Or could they be doing the states rights question for those religious laws and discrimination laws they are trying the pass… like the stunt some State agencies pulled like the DMV did in FL, with not recognizing it…. I hope so.

    There is no debating Baker will soon be officially dead with new precedent….

  • 7. Sagesse  |  January 16, 2015 at 4:40 pm

    While it may be possible legally to split the two questions, it defies common sense to mandate one but not the other. A state can't be forced to issue licences, but it must recognize marriages performed elsewhere?… all a couple has to do to be married in Michigan is to get married somewhere else. If the state has some kind of valid public policy objection to married LGBT couples… how does sending them out of state to do it accomplish anything?

  • 8. Raga  |  January 16, 2015 at 4:43 pm

    What are you talking about? I was talking about the "marriages" being scheduled at that time – imagine a large number of couples gathering in the courtroom to be married during oral argument.

  • 9. USAspeaks  |  January 16, 2015 at 4:43 pm

    Its possible, these questions will create a larger 2016 election issue. I would expect GOP presidential candidates to take stands regarding the independence of states. It would play well to the conservative base while also influencing SCOTUS. A few of the judges are very much in favor if states rights and independence from the federal government.

    Its an interesting story to watch with long term ramificatiions. It also is one of the few areas of untrodden griound on SSM issues.

  • 10. Rik_SD  |  January 16, 2015 at 4:51 pm

    Think President Romney would have had his justice dept file a brief in our favor? Nope! I just don't understand gay republicans at all…

  • 11. Mike_Baltimore  |  January 16, 2015 at 5:02 pm

    SCOTUS has control of it's own schedule, and can make any changes in it's schedule it sees fit. Even SCOTUS admits that "Usually Court sessions continue until late June or early July." ( http://www.supremecourt.gov/about/procedures.aspx ) The use of the term 'usually' implies 'but not always', thus indicating the schedule is not set in stone.

    Will it make a change in schedule? Highly unlikely, but a distinct (though slim) possibility.

  • 12. Raga  |  January 16, 2015 at 5:12 pm

    Mike, I was referring to the typo "marriages will be scheduled during that time". It should have read "marriage cases will be scheduled during that time."

  • 13. USAspeaks  |  January 16, 2015 at 5:12 pm

    This court has a history of issueing judgements which appeal to each side. It also has a history of passing rulings which lead the way for further socialization and cases by the public.
    I can see where a middle ground ruling could occur. If they said – It is up to each state to decide – that would appeal to the right wingers. yet by also saying that a stsate must recognize marriage contracts from other states (under the commerce clause) they would in fact be setting up each state to evolve towards passing marriage equality on their own. The business backlash, The administratvie nightmare, and continued public pressure would evenitually over ride their initial opposition to SSM.
    So yes, I can see where a split ruling is a possibility.

  • 14. guitaristbl  |  January 16, 2015 at 5:36 pm

    It feels good to have the justice department on our side. And Rik above is right, this is a point gay republicans cannot argue with. A republican president would defend the bans to death.

  • 15. Rick55845  |  January 16, 2015 at 5:44 pm

    I hope they don't try to split the baby, but if they do, is it conceivable they could do it like this?

    1) Does the Fourteenth Amendment require a state to license a
    marriage between two people of the same sex?

    Answer: No. Nothing in the US Constitution requires that a state must issue marriage licenses. If a state chooses not to license marriage within its boundaries, this in no way interferes with the fundamental right to marriage. That right exists, regardless of whether a state wishes to license it, regulate it, or confer benefits, duties, and obligations related to it.

    2) Does the Fourteenth Amendment require a state to recognize a marriage
    between two people of the same sex when their marriage was
    lawfully licensed and performed out-of-state?

    Answer: Yes, if the state chooses to license marriage, it must do so in a way that comports with the 14th amendment guarantee of equal protection and due process. No, if the state chooses not to license or regulate marriage.

    I wouldn't like this, but it would still amount to a victory for us. I don't believe any state will wish to "experiment" with giving up licensing marriage, and regulating it and all of the numerous duties, responsibilities, and benefits that go along with it. I don't think a majority of people of any state, no matter where they stand on the political spectrum, will advocate for that or tolerate it.

  • 16. Zack12  |  January 16, 2015 at 5:51 pm

    They can't argue it but they will sure try.

  • 17. Zack12  |  January 16, 2015 at 5:51 pm

    The thing with most of the gay Republicans is all they care about is making $$$.
    If it means they get treated like dirt and others have to give up their rights for them to do get it, so be it.

  • 18. Mike_Baltimore  |  January 16, 2015 at 5:54 pm

    And I wasn't.

  • 19. TimATLGA  |  January 16, 2015 at 6:15 pm

    Did you mean its and not it's?

  • 20. VIRick  |  January 16, 2015 at 6:19 pm

    "…. Holder, along with EVERY state, DC and Puerto Rico filing [pro-ME] briefings! "

    Brandall, in addition, I can almost guarantee you that there will be a pro-ME brief filed from the VI. I'm sending you some private (for the moment) information on the subject. Let me know what you think.

  • 21. VIRick  |  January 16, 2015 at 6:25 pm

    "…. so the same-sex marriages will be scheduled during that time."

    Brandall, according to what I read, same-sex marriages are going to be scheduled for the Courtroom, apparently in front of all 9 Justices, non-stop, 24 hours a day, from April 20 through April 29, right through the entire stretch of oral argument time.

    Wouldn't that be great fun, to get married inside the Supreme Court chambers, right in front of Scalia, while he does his latest argle-bargle in consultation with the haruspices inspecting the entrails?

  • 22. VIRick  |  January 16, 2015 at 6:56 pm

    Yes, he did,– twice. Now, stop,– twice.

  • 23. brandall  |  January 16, 2015 at 7:16 pm

    VIRick and Raga…..

    Notes to myself:

    1) Stop trying to read and reply to EoT on my iPhone while I'm at the Mix having an Irish coffee to celebrate this historic day finally arriving.
    2) Carefully read the entire sentence and not just the part before the comma.
    3) Stop trying to read and reply to EoT on my iPhone using the web version layout no matter where I am

  • 24. RnL2008  |  January 16, 2015 at 7:24 pm

    Evening fellow EoTer's……..found this article on my facebook and thought I'd share: http://www.usnews.com/news/articles/2015/01/15/pr

    Just also found by reading this article that Texas is trying to add a section that ties the hands of the State Courts to dismiss any lawsuits aimed at this bill as well as any other lawsuit regarding issues that the Legislators might sign into laws…….it's like these Legislators are saying the hell with the Constitution…….we'll do it our way…….all because they HATE those who are different than themselves……how ridiculous!!!

    Another battle looming in front of us after SCOTUS rules in our favor……ugh:(

  • 25. RnL2008  |  January 16, 2015 at 7:30 pm

    I agree with the answer that States are NOT required to issue a marriage license to Same-Sex couples based SOLELY on the wording in the 14th Amendment, HOWEVER if the State issues marriage licenses to opposite-sex couples, then the State MUST issue marriage licenses to Same-Sex couples UNLESS the State has a valid interest to NOT, and up til now, the States DON'T have a compelling interest to deny Gays and Lesbians the right to marry.

    I DON'T see SCOTUS splitting the baby so to speak and after denying cert to the cases from the 4th, 7th and 10th….I also DON'T see them upholding the ruling from the 6th….no matter what Brian Browns or any of the other ANTI-GAY folks say.

  • 26. RnL2008  |  January 16, 2015 at 7:36 pm

    The Marriage Equality fight should be resolved long before the 2016 Presidential race…….and besides that, the States still have the sole right to define marriage and set the requirements for obtaining a marriage license………HOWEVER with that being said, the States DON'T have the right to set specific gender requirements WITHOUT a compelling state interest and the States clearly DON'T have one…..because if they did, they'd have used it by now and it's obvious that the procreation interest, nor trying to force opposite-sex couples to stay together or be responsible will change by denying Gays and Lesbians their FUNDAMENTAL right to marry.

  • 27. RnL2008  |  January 16, 2015 at 7:41 pm

    Remember Raga, Section 2 of DOMA is still valid and on the books and I think that though Section 2 is NOT mentioned, I believe the 2nd question will be handled in a way that makes Section 2 UNCONSTITUTIONAL as was Section 3 ruled that way in the Windsor ruling.

  • 28. brandall  |  January 16, 2015 at 8:08 pm

    Fascinating Q&A with David Boies after today's announcement.

    "you read the Windsor case and you read the Lawrence case of 10 years ago, and you can't read that reasoning and not conclude that there's a federal constitutional right to marry and Justice Scalia agrees with me—because he said that in dissent.'

    Question: How do you think leading Republicans should react to that in the presidential context for 2016?

    Boies: I think they should be really happy, because it takes the issue off the table.
    http://www.bloomberg.com/politics/articles/2015-0

  • 29. USAspeaks  |  January 16, 2015 at 9:41 pm

    I agree that the gay marriage issue would be resolved before the 2016 election Howeer we can learn from the abortion resolution too. That issue was resolved by SCOTUS too BUT the GOP have used it to garner votes ever since. I think this is the same type of issue The GOP will see opportunity to gain voters by appealing to those who believe states ought to be more independent They will take this issue and ride the energy far beyond the June decision. They will use the frustration that the fed forced states There are many right wingers who believe the Feds ought not interfere with states Right or wrrong – this is how they think So I still say – this will raise a new initiative to gain votes by boosting statee independance from the feds It will expand beyond gay rights Lets watch ans see Just like it did for Abortion.

  • 30. davepCA  |  January 16, 2015 at 9:48 pm

    Aw dang it, I was at a restaurant around the corner from the Mix at the same time you were there. I would have stopped by and said 'hi'. Oh well,"hi" anyway, Brandall!

  • 31. sfbob  |  January 16, 2015 at 10:02 pm

    I am more optimistic than you are. If the court is going to rule on the question of whether a state must recognize a particular class of marriages performed in other states, that will inevitably involve coming to grips with the bases on which a state may reasonably and constitutionally refuse to recognize a marriage solemnized elsewhere. No matter which way they are inclined to go they are going to have a very tough time dealing with that particular question without concerns about heightened scrutiny coming into play.

  • 32. kohltd  |  January 16, 2015 at 10:51 pm

    So just to clarify, does this mean all litigation (both state and federal) in other cases is put on hold until SCOTUS reaches a decision, even if a case has been heard and judges are writing opinions? i.e.: 5th Circuit? Arkansas SC?

  • 33. F_Young  |  January 17, 2015 at 2:04 am

    USAspeaks: "That issue was resolved by SCOTUS too BUT the GOP have used it to garner votes ever since. I think this is the same type of issue"

    I disagree.

    For one thing, support for marriage equality is stronger than it is for pro-choice, and it is still increasing, while support for pro-choice is stagnant or decreasing.

    But, more importantly, there is a big generational difference on marriage that does not apply to abortion. So, marriage will not become a permanent issue, unlike abortion; marriage will die off as an issue when older people die off.

    Furthermore, younger people who support marriage equality have strong convictions on that and are ready to vote against anyone who opposes marriage equality. The GOP loses more voters (especially younger voters) than it gains when it uses marriage as an issue. The GOP has to be careful not to alienate too many younger voters if it wishes to have a future.

    The only thing that has allowed the GOP to use the marriage issue this long is that much fewer younger people actually vote.

    Voter turnout is a critical factor, but marriage now has more potential to increase Democratic turnout than it has to increase Republican turnout, because the turnout of younger people has so much more room to expand, and the turnout of anti-gay voters is already much higher, but is limited by the fact that they are literally dying off.

  • 34. brandall  |  January 17, 2015 at 3:06 am

    Federal and state courts can decide to "stay pending resolution by SCOTUS" or they can choose to move forward and reach their own conclusion. We saw a mix of both in the January-October window. I can't tell you what each outstanding case will do now since the entire ME legal battle is unprecedented in both the size and speed of the issue.

  • 35. USAspeaks  |  January 17, 2015 at 4:34 am

    I agree with your statement on gay marriage in the long run. However I think we are discussiing different points.
    1. Gay marriage… Yes, here we agree… Society thus far is evolving. On this we will eventually succeed given the trends. However, there will remain pockets of knee jerk resistance. Texas HB623 for examole and the similar move by South Carolina, each of which are being propsed and reviewed to be passed. If you arent familiar with these propsed laws, you may want to examiine them, While in the long run, they appear unconstitutional, the fact remajns they are alive and proceeding. I rxpect more laws like these to arise, some passsed, followed by years of court cases until they are nailed as unconstitutional..
    2. The 14th amendment… And the ramificatiins of the ruling on states. Forget gay marriage. This is the point of my statemrent about long term impact. In essence, the questions before SCOTUS is whether the 14th amendment applies to states. Of course it does. But, it hits an existing raw nerve with the right wing as it encroaches upon states rights laid out in the 10th amendment. THIS is the point I am making. Forget gay marriage… This incudent plays directly into the desires of many right wingers that the feds are interfereing with state rights laud in the 10th amrndment. Maybe the issue will be taxation, maybe it is on civil rights, maybe it is immigration or any of a number of topics. The fact that the SSM issue is raising, and i expect will win, based on the 14th amendmrnt, the fact remajns that it is supercedung the 10th amendment, as was intended, and yet it is a sore point for right eingers. That is what i mean when i saw it will impact 2016. I think the issue of state rights will arise, spurred by the june ruling but applicsble to a bigger right eing sore point.

  • 36. ianbirmingham  |  January 17, 2015 at 4:49 am

    It's the Full Faith and Credit clause (not the Commerce Clause).

  • 37. Randolph_Finder  |  January 17, 2015 at 5:22 am

    Agreed, the last time the SC saw this co-ordinated an effort to appeal multiple cases to the court within a year was probably school integration and there were really only five. Imagine if the 9th, 6th and 3rd had all ruled against us what the logjam at the court would look like!

  • 38. ianbirmingham  |  January 17, 2015 at 5:24 am

    For question 1 you have correctly written what the court's ruling will be. But as a practical matter, states cannot choose not to regulate marriage because the result would be so chaotic that the pressure to regulate would be irresistable, and even if the state resisted that pressure there would have to be a zillion tiny "backdoor" de facto recognitions of marriage scattered throughout the legal system – the state would still be recognizing it but in a much more complicated way which greatly increases costs. Even the right-wingers like NOM and Stanley Kurtz are firmly behind the idea that marriage has to be licensed no matter what. So no state will ever choose not to regulate marriage. However, extreme right-wingers and libertarians will fantasize about it forever, so we will never stop hearing about it.

    http://www.nationalreview.com/corner/117239/priva

    For question 2 the answer is not as you have described it. The correct answer is Yes, but the Court has to deal with the ill-defined "Public Policy Exception" to the Full Faith and Credit clause. This is a good opportunity for the Court to finally put a stake in the heart of the "Public Policy Exception" by ruling that it is unconstitutional.

    http://www.americanbar.org/content/dam/aba/admini

    http://scholarlycommons.law.cwsl.edu/cgi/viewcont

    http://www.quinnipiac.edu/prebuilt/pdf/SchoolLaw/

  • 39. F_Young  |  January 17, 2015 at 5:37 am

    I agree that the GOP is likely to avoid the word "marriage" and instead use language about voters rights, democracy, local control, etc (when in fact what they really mean used to be referred to as "states rights," but they will avoid this loaded phrase because of its Civil War and Civil Rights connotations).

    They may well enjoy some success with this angle, but I think they will attach it mainly to other issues, not to marriage equality, because that is no longer a winning issue for them.

    So, I don't think that marriage equality will become a permanent issue like abortion, which is the point from your earlier post that I disagreed with.

    The other angle that the GOP are pursuing is what they refer to as "religious liberty" (though in truth what they want is to suppress religious liberty and replace it with enforced Christian fundamentalism). I think that this has potential to increase anti-gay voter turnout somewhat.

    However, hopefully, it will not effect the 2016 elections much because the seats where it would resonate best are already held by Republicans, and with gerrymandering and other incumbent advantages, Citizens United and voter id laws, it is practically impossible to remove Republican (especially) incumbents regardless of voter turnout and, shockingly, votes.

  • 40. USAspeaks  |  January 17, 2015 at 5:38 am

    thank you for catching that

  • 41. USAspeaks  |  January 17, 2015 at 5:48 am

    i think we are mostly on the same page
    Although are you famliar with HB623 (texas) and the South Carolina proposed legislation? I expect that could turn into another backlash like DOMA – designed to swing an election yet have longer impacts until ruled unconstitutional.
    I partake in a number of discuusion blogs. I even venture into the Religious discussion boards (well until I was banned) There is still a strong faction who will vote based on the Religious Freedom movement I also see a lot of comments from those right wing boards which support no Federal interferance with state laws. Hence why I think this could spawn Doma like movement to win elections followed by years of court cases.

    What is your take on back lash like HB 623 and South Carolina and Kansa etc ?? More are coming from Utah and the South I understand

  • 42. RQO  |  January 17, 2015 at 6:21 am

    You are both right – where right wing ideology is popular, it is VERY popular. Anyplace moderate to liberal, even 90% of the Republicans eschew it. It just shows the nation is just as polarized as ever, and for all everyone says "it's the economy, stupid", politics is really driven by the Culture Wars. My personal favorite things to blame for this situation are gerrymandering, closed primaries, and talk radio, starting with Rush Limbaugh how long – 30 years? – ago.

  • 43. RQO  |  January 17, 2015 at 6:23 am

    $$$ yes, but they also cherish their country club memberships. I have never met a group so enamored of being A-listers.

  • 44. Rick55845  |  January 17, 2015 at 6:27 am

    Ian, thanks for your response.

    My thought was that the answer to the second question would be conditioned upon whether a state chooses to license and regulate marriage at all. If it doesn't, then it has no legal structure for recognition of any legal out-of-state marriage, so the answer for that state would be no. If it does, then it must recognize the valid out-of-state marriages because of the equal protection and due process guarantees of the 14th amendment.

    It wouldn't seem that the Full Faith and Credit clause could require a state that doesn't license or regulate marriage to recognize something it doesn't have the capacity to do.

    But I agree that scenario is purely a thought exercise. There's no way any state would ever stop regulating and licensing marriage. As I said in my original post, there would be no support from that from any sector of a state's citizens. So given that, the effective answer to #2 is yes.

  • 45. Rick55845  |  January 17, 2015 at 6:36 am

    Thank you, Rose. We seem to be in agreement about the actual effect.

    I was using the term "splitting the baby" in a slightly different sense than it is normally used. A different cut, so to speak. Instead of splitting it between performance and recognition, I was suggesting the split was whether a state choose to license and regulate marriage or not.

    But as I mentioned before, it's a purely theoretical concept. The citizens of no state will permit it to do away with marriage altogether. :) That is what makes it a win for us (based on the second question), no matter what the answer to the first question is.

    Anyway, this is all just conjecture on my part. I look forward to hearing the oral arguments, and finding out in June how the SCOTUS decides. I know their analysis will be far more interesting than my conjecture.

  • 46. Dann3377  |  January 17, 2015 at 7:12 am

    All this talk about "splitting the baby" is IMO nonsense! We now have over 60 plus rulings in our favor and 36 states! Everything up until now has more than worked out in our favor and moving along swimmingly again, IMO. If the SCOTUS "split the baby", I'm sure states like Florida and Kansas ( just to name a few) would try and find a way to reverse ME. The SCOTUS must address both questions in order to get rid of sec 2 of DOMA. At this point it's ALL OR NOTHING!

  • 47. Wolf of Raging Fires  |  January 17, 2015 at 7:17 am

    So then, VI really does stand for Virgin Islands? I'd love to hear more about you being from there! :)

  • 48. Wolf of Raging Fires  |  January 17, 2015 at 7:21 am

    Since it seems there is no other way to make Section 2 go away by direct challenge (and Congress won't be any help for a while), making it completely "dead letter" should do just fine. :)

  • 49. F_Young  |  January 17, 2015 at 7:29 am

    USAspeaks: "What is your take on back lash like HB 623 and South Carolina and Kansa etc ??"

    They certainly represent an anti-gay backlash, and some of these laws will pass, but they will all be found to be unconstitutional when they finally reach the upper level courts, possibly including SCOTUS. They are the next fight, and It will be big, and hugely important.

    In the meantime, these laws will probably stir up homophobic sentiment, suicide, homelessness and anti-gay discrimination and violence, which are definitely a concern.

    I am also quite concerned that court decisions overturning these laws will lead to citizens' initiatives (as a voter turnout strategy) and constitutional amendments that will keep the animus alive for a few years in the Red states. Such initiatives and amendments will also be found to be unconstitutional eventually. They won't necessarily affect election results since those seats are already Republican.

    However, in the longer term, public opinion will increasingly favor marriage equality even in the Red states. So, the marriage issue will die out, unlike abortion.

  • 50. Wolf of Raging Fires  |  January 17, 2015 at 7:31 am

    That's not necessarily true everywhere. Here in NY in 2011, it was votes by Republican state senators that pushed our marriage equality law into existence.

  • 51. Wolf of Raging Fires  |  January 17, 2015 at 7:42 am

    I firmly believe that SCOTUS denied the appeals of favorable decisions as they have done because they wanted to have the least dramatic and "natural" of a conclusion as they could've with doing the right thing. As much as I would've loved the Prop 8 case to have been the conclusion long ago, I have to say, this was a set of smart strategies on their part.

  • 52. ianbirmingham  |  January 17, 2015 at 8:00 am

    The state would still have to give "full force and effect" to the marriage judgements of other states, even if it didn't itself regulate marriage. Suppose A and B jointly own a house in a state that doesn't regulate marriage, and another state grants them a divorce and B gets sole ownership of the house by the terms of the divorce order. The state that doesn't regulate marriage still has to give full faith and credit to the other state's judgement and update its home ownership records accordingly.

  • 53. cpnlsn88  |  January 17, 2015 at 8:04 am

    I was a bit worried about splitting the baby. However we should not be. If Kennedy supports marriage equality he has an ideal situation in which to do so and in a way that was not the case the last time around (Prop 8). All the states that could fall in line by their legislatures or by state supreme courts have done so; DOMA is now down; the majority of states covering a majority of the population; marriage equality – barring a few minor issues in some states has been accepted well in the states that have done so whatever the mode of its introduction. In that environment we are good to go for all 50 states if there are 5 votes at least. I think there are 5 votes at least for this to happen. I think if there was interest in innovative or mixed solutions this would have come in at the point cert was denied. They would not allow so many states' rulings to move forwards then just to reverse course a few months later. So my message would be 'Have confidence' and 'Read Windsor'. There are never any guarantees but we are very well placed.

  • 54. ianbirmingham  |  January 17, 2015 at 8:50 am

    DOMA isn't completely down – Section 2 is still in effect, and this case may well include a ruling that the "Public Policy Exception" to the Full Faith and Credit clause is unconstitutional, which would have the de facto side effect of completing the destruction of DOMA. Section 3 has already been ruled unconstitutional, leaving both Section 1 and Section 2 still in effect. Section 1 has no practical significance, so once Section 2 is down DOMA itself is dead.

  • 55. ianbirmingham  |  January 17, 2015 at 8:52 am

    SCOTUS will do that in Question 2, by ruling that the much-criticized "Public Policy Exception" to the Full Faith and Credit clause is unconstitutional.

  • 56. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 8:55 am

    I want to read it!

    I did want to ask a related question: Does a pro-ME ruling by SCOTUS have direct and immediate impact on commonwealths (Puerto Rico) and territories (VI, Guam, NM Islands, etc,)?

  • 57. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 9:06 am

    Federal would be logical, because any ruling by SCOTUS will bind them. So the 5CA (even though oral arguments has occurred) and 11CA (briefings completed) should logically be stayed pending SCOTUS decision.

    As for state proceedings…if the challenge contains a provional of the state constitution, there is no reason to stay the proceedings. Arkansas I believe contains both, so no reason not to continue with the ruling.

  • 58. ianbirmingham  |  January 17, 2015 at 9:19 am

    Only 2 of the 32 Republicans (6%) supported it, along with 30 of the 31 Democrats (97%). Therefore, well over "90% of the Republicans eschew it", New York State included.

    http://en.wikipedia.org/wiki/Marriage_Equality_Ac

  • 59. Sagesse  |  January 17, 2015 at 9:47 am

    From the Hollywood Reporter, Saturday morning amusement.

    Supreme Court to Rule on Gay Marriage: Ellen, Dan Savage and Others React
    http://www.hollywoodreporter.com/news/supreme-cou

    Best line:

    "The Supreme Court has agreed to rule on gay marriage this year. In exchange, Ruth Bader Ginsberg will be the new host of Fashion Police."

  • 60. David_Midvale_UT  |  January 17, 2015 at 9:50 am

    You are right about some things making no sense.

    Similarly, it made no sense here in HATU—The Bass Ackwards State (Utah) to require the same marital status on state tax forms that are used on the federal form. Last year, Marriage equality was recognized by the feds on tax form for Utahns legally married (for example, the couples married in the magic days between Shelby's ruling and the SCOTUS stay), and state law says they have to use the same status on the Utah forms, but Utah was still fighting recognition of the legally performed marriages, and of course the Utah State Churchislature couldn't pass a law that would change the filing status retroactively, so the state tax commission eventually said use the federal filing status. Heads throughout Utah were exploding like in the movie "Mars Attacks!," but there was nothing anyone could do except follow the then-current tax law.

    There are other situations where a "legal status" might be recognized but not granted. For example, in reciprocal recognition of a concealed carry firearm permit, some states might recognize an out-of-state permit but not grant the same individual the equivalent in-state permit because of some technicality, for example, failure to take a required safety class or pass a required safety exam. I don't know if age differences impact reciprocity. Relatively young children can go to a shooting range or hunting with a parent, but no one under 21 can get a Utah concealed carry permit.

  • 61. Wolf of Raging Fires  |  January 17, 2015 at 9:52 am

    Good point.

  • 62. Wolf of Raging Fires  |  January 17, 2015 at 9:54 am

    I seriously doubt they're going to address Full Faith and Credit at all. They don't need to and if I know Kennedy, he won't want to.

  • 63. Rick55845  |  January 17, 2015 at 9:58 am

    Good point. That seems right.

  • 64. Wolf of Raging Fires  |  January 17, 2015 at 9:58 am

    WIGGLE WIGGLE WIGGLE!!!
    WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE!!!!!!

  • 65. ianbirmingham  |  January 17, 2015 at 10:15 am

    WTF are you talking about?!? The only way ANY state recognizes ANYTHING done by ANY other state is via the Full Faith and Credit Clause. That clause, along with the Bill of Rights, etc., is legally binding with respect to the states by way of the 14th Amendment. Question 2 is ALL ABOUT the Full Faith and Credit clause!!!

  • 66. VIRick  |  January 17, 2015 at 10:24 am

    Yes, besides affecting the 13 1/2 remaining non-ME states, a positive ruling from SCOTUS will also have the same direct and immediate impact upon Puerto Rico, and the remaining territories like the Virgin Islands and Guam.

  • 67. brandall  |  January 17, 2015 at 10:28 am

    "13 1/2" ….. 1/2? a man can only marry himself? LOL

    Seriously, what state is the 1/2?

  • 68. Wolf of Raging Fires  |  January 17, 2015 at 10:33 am

    Calm down. All I'm saying is that they may not even mention Full Faith and Credit. Also, you're wrong. FF&C is part of the original Constitution, not in the Amendments. It always applied to the States long before the Reconstruction Period (when the 14th came about) and has really nothing to do with the Bill of Rights (a set of Amendments). SCOTUS also has not taken up any case here that mentions Section 2 of DOMA, so it's not at stake here. It will become completely defunct and "dead letter" as long as they rule in our favor in terms of recognition based on the 14th Amendment. Kennedy probably won't touch on the public policy exception.

    Gods, everyone newer to the blog always wants to challenge everything I say. I definitely get some things wrong sometimes but I know I'm right about this.

  • 69. VIRick  |  January 17, 2015 at 10:40 am

    Brandall, that's Missouri. It does the "out-of-state recognition" part, but still has limited reach on in-state performance. Missouri is sort of half-way there, maybe a bit more.

  • 70. RnL2008  |  January 17, 2015 at 10:42 am

    Found this article on my facebook and thought I'd share: http://www.lambdalegal.org/blog/20150117_scotus-m

    it gives some idea on what will happen if we win or if we should lose…….take a look and and then see what our chances are.

    I think our chances with SCOTUS is going to be pretty good……but like many have stated, SCOTUS can do what they want…….let's hope they continue going in a positive direction!!!

  • 71. RnL2008  |  January 17, 2015 at 10:43 am

    Some folks just don't understand your wiggle Wolf……but I do:-)

  • 72. VIRick  |  January 17, 2015 at 10:45 am

    Here are the questions as rewritten by the Justices:

    “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

    Both questions under present consideration by the Supreme Court focus entirely on the 14th Amendment (Due Process and Equal Protection), so limit discussion to that. Neither the Full Faith and Credit Clause nor the Commerce Clause are under review.

  • 73. scream4ever  |  January 17, 2015 at 10:49 am

    Missouri, where it's legal in St. Louis/County and Jackson County.

  • 74. ianbirmingham  |  January 17, 2015 at 11:06 am

    No, you're wrong about this. The two questions SCOTUS granted cert on are exactly the two questions raised in the Bourke case.

    http://sblog.s3.amazonaws.com/wp-content/uploads/

    The 6th Circuit ruling in that case cited the Full Faith and Credit clause in its opinion as to why Kentucky did not need to recognize out-of-state marriages, so SCOTUS is going to have to directly confront the Full Faith and Credit clause. It is indeed at stake here.

  • 75. Wolf of Raging Fires  |  January 17, 2015 at 11:07 am

    And that's why I love you!

  • 76. Wolf of Raging Fires  |  January 17, 2015 at 11:12 am

    I said Section 2 of DOMA is not at stake, not Full Faith and Credit. I also said Kennedy won't touch Full Faith and Credit, and that part is my opinion. If SCOTUS was going to touch FF&C, it would've presented it in its official questions to be addressed. You're grasping at straws trying to make yourself sound smart.

  • 77. ianbirmingham  |  January 17, 2015 at 11:16 am

    No, you're wrong about this. The two questions SCOTUS granted cert on are exactly the two questions raised in the Bourke case.

    http://sblog.s3.amazonaws.com/wp-content/uploads/

    The 6th Circuit ruling in that case cited the Full Faith and Credit clause in its opinion as to why Kentucky did not need to recognize out-of-state marriages, so SCOTUS is going to have to directly confront the Full Faith and Credit clause. It is indeed at stake here.

  • 78. VIRick  |  January 17, 2015 at 11:18 am

    The Arkansas Supreme Court can uphold the striking down of Arkansas' ban on marriage between same-sex couples based strictly and solely upon their interpretation of the Arkansas state constitution, just as was done in Massachusetts, Connecticut, Iowa, and New Mexico, and can do so without regard to any Supreme Court proceedings or timetable.

    And ditto for the Missouri Supreme Court on the question of in-state performance.

  • 79. ianbirmingham  |  January 17, 2015 at 11:24 am

    Go read the Bourke appeal brief, which I linked to above. That brief presents exactly the two questions SCOTUS accepted, AND it discusses the Full Faith & Credit clause logic used by the 6th Circuit. Your assumption that FF&C is not involved is entirely false.

    SCOTUS will indeed "touch" FF&C, hopefully by ruling the "Public Policy Exception" unconstitutional.

  • 80. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 11:29 am

    I'm personally not aligned with this whole "splitting the baby" line of thinking. There were FOUR cases that were consolidated, and it is prudent to have two distinct questions that ensures coverage of each case. By presenting one and only one question (which gums up the question itself), SCOTUS could not properly address each case and would have had to treat them differently. By virtue of overruling the 6CA on Q1, Q2 gets answered (why would you not recognize a license from another state for which you grant in your own state?).

    My only wish is that somehow oral arguments would be streamed live or at least the audio live. At what point do we get any kind of output from the oral arguments (I know we don't ever get video, but is audio or written transcript released in short order)?

  • 81. wes228  |  January 17, 2015 at 11:34 am

    A Full Faith and Credit Clause challenge is entirely pre-empted by DOMA Sec. 2. The FFC Clause says that Congress can determine on what terms the states must recognize the acts of other states. DOMA Sec. 2 says they don't have to recognize out-of-state same-sex marriages.

    The FFC Clause is off the table. Also, the questions presented are specifically restricted to the 14th Amendment.

  • 82. wes228  |  January 17, 2015 at 11:35 am

    Even if the Public Policy Exception were unconstitutional, DOMA Sec. 2 says that the states don't have to recognize out-of-state same-sex marriages. The FFC Clause also says that Congress can determine on what terms states must recognize out-of-state acts.

  • 83. wes228  |  January 17, 2015 at 11:38 am

    Splitting the baby would result in just as much legal chaos as an adverse ruling outright. It would threaten the validity of any marriage obtained pursuant to a federal court order. I would imagine a lot of states would let it slide and just keep recognizing the marriages, but there will be plenty who will want to put a thorn in gay couples sides and 1) make them re-marry out of state and 2) declare that anything they did as a married couple under their home-state marriage license is invalidated because the gay marriage ban was legal all along.

    This would set up another round of messy lawsuits. If the Supreme Court wanted to uphold a ban on gay couples from marrying, they would have done so on the Utah cert petition.

  • 84. VIRick  |  January 17, 2015 at 11:40 am

    Wolf, this time around, though, you're correct,– on all counts. I've already posted this higher up in this very same thread, but apparently it needs repeating in order for everyone to remain focussed:

    Here are the questions as rewritten by the Justices:

    “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

    Therefore, the discussion needs to be limited to the 14th Amendment (Due Process and Equal Protection), as that is what is currently under review before the Supreme Court, based on what the Supreme Court itself just stated yesterday in its re-phrased questions. The Full Faith and Credit Clause is NOT presently under review.

  • 85. ianbirmingham  |  January 17, 2015 at 11:42 am

    DOMA Section 2 would be zombified immediately because it simply asserts a 50-state Public Policy Exception against same-sex marriage. A civil suit would instantly be filed against it citing the unconstitutionality of the Public Policy Exception, and that would be a fast slam-dunk win that would drive a stake through DOMA's heart.

    FF&C does give Congress the power to ASSIST states in recognizing the acts of other states, but it does not give Congress the power to work AGAINST that process (as it unconstitutionally attempted to do with DOMA).

  • 86. ianbirmingham  |  January 17, 2015 at 11:45 am

    DOMA Section 2 would be zombified immediately because it simply asserts a 50-state Public Policy Exception against same-sex marriage. A civil suit would instantly be filed against it citing the unconstitutionality of the Public Policy Exception, and that would be a fast slam-dunk win that would drive a stake through DOMA's heart.

    FF&C does give Congress the power to ASSIST states in recognizing the acts of other states, but it does not give Congress the power to work AGAINST that process (as it unconstitutionally attempted to do with DOMA).

    http://sblog.s3.amazonaws.com/wp-content/uploads/

    Go read the Bourke appeal brief, which I linked to above. That brief presents exactly the two questions SCOTUS accepted, AND it discusses the Full Faith & Credit clause logic used by the 6th Circuit. Your assumption that FF&C is not involved is entirely false.

  • 87. VIRick  |  January 17, 2015 at 12:10 pm

    Ian, the two questions Joe Dunham presented in the Kentucky plaintiffs' petition for certiorari in the appeal of "Bourke/Love v. Beshear" are"

    QUESTIONS PRESENTED FOR REVIEW

    1. Does a State violate the Due Process and Equal
    Protection Clauses of the Fourteenth Amendment
    by prohibiting gay men and lesbians from marrying
    an individual of the same sex?

    2. Does a State violate the Due Process and Equal
    Protection Clauses of the Fourteenth Amendment
    by refusing to recognize legal marriages between
    individuals of the same sex performed in other
    jurisdictions?

    In both, I only see the "Due Process and Equal Protection Clauses of the 14 Amendment" cited, precisely matching with the wording in the Supreme Court's re-phrased questions.

    One can argue, if one chooses to do so, using the language of the full Faith and Credit Clause, and reach the same conclusion, at least on "out-of-state recognition." But here's the problem: The courts aren't going that way. They prefer (and have actually requested) that the argument be based strictly and solely on the 14th Amendment. If one wants to win the present appeal, one needs to stay within the directive of the Court.

    I think you're trying to argue against Sutton and his out-of-step ruling. But bigger picture, and quite frankly, none of us should truly give a shit about what Sutton had to say. It has no merit.

  • 88. Sagesse  |  January 17, 2015 at 12:27 pm

    On the topic of the day: Question 1? Question 2? How can there be two questions, when everyone knows the answer is 42?

    Taking Up Gay Marriage, but on Their Own Terms [Adam Liptak at the New York Times]
    http://www.nytimes.com/2015/01/18/us/supreme-cour

  • 89. ianbirmingham  |  January 17, 2015 at 12:39 pm

    Actually, the two questions are slightly different:

    “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

    Both questions have been shifted from the negative to the positive.

    Now let's assume, arguendo, that the answer to Question 2 is "Yes". What that means is that the state cannot use the Public Policy Exception of the Full Faith and Credit clause to get out of recognizing those marriages. The Full Faith and Credit clause has to be analyzed for that reason, as well as because the 6th Circuit's ruling relied heavily upon the Full Faith and Credit clause.

  • 90. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 12:42 pm

    I'm so over the use of the term "gay marriage" – primarily by the media, even Huffington Post. Why do they call it that? It's simply marriage, and this case is about affording marriage rights to same-sex couples just as it is already afforded to opposite-sex couples. It's not gay marriage or same-sex marriage, just like it's not a new right we are asking SCOTUS to provide. It's civil marriage — period. Hell, even the infamous two questions as posed by SCOTUS properly use the correct terminology.

  • 91. Sagesse  |  January 17, 2015 at 12:45 pm

    I'm going with Ockham's Razor on this one. They are consolidating four cases: some deal with recognition only; others deal with celebration only. Hence, two separate questions.

    But IANAL, and obviously couldn't make a living as one, because in the law, the simplest answer cannot possibly be the answer.

  • 92. Sagesse  |  January 17, 2015 at 12:53 pm

    I have given up on the idea that the media will stop using 'gay marriage', especially in headlines, because of its conciseness. My Google News alerts use 'gay marriage' as the filter, and pick up most everything.

    Liptak knows the difference. In fact, I think SCOTUS does too – even before yesterday's questions. As a homework exercise, I mean to go back over Windsor, but I don't recall any language in the decision itself that suggests they are discussing something other than just 'marriage', that thing that everyone else has.

  • 93. Wolf of Raging Fires  |  January 17, 2015 at 1:02 pm

    Thank you. I'm glad someone knows what I'm talking about.

  • 94. Tony MinasTirith  |  January 17, 2015 at 1:15 pm

    Tuesday, June 30, 2015.
    5 Months, 14 days (or Less) and counting till Nationwide Marriage Equality!

    And 15,604 days for Baker V. Nelson to be now and forever OVERRULED!
    (Or 42 years, 8 months, 21 days)

    Who wants to get married 😀

  • 95. VIRick  |  January 17, 2015 at 1:17 pm

    "They are consolidating four cases: some deal with recognition only; others deal with celebration only. Hence, two separate questions."

    Sagesse, precisely. And hence, too, no one should read anything more profound into it than that. Ohio and Tennessee are only allowed to address the issue of out-of-state recognition. Michigan can only address in-state celebration. Only Kentucky needs to answer both questions.

  • 96. GregInTN  |  January 17, 2015 at 1:19 pm

    At this point, I don't think it is very likely that SCOTUS will act incrementally by requiring recognition but not licensing. IF the only case that had been presented to them was a recognition case, they could have resolved just that narrow question and left the licensing
    question for another time. However, they have cases (and split circuits) which address both questions so they can't really avoid the licensing question. So, since they have to answer either Yes or No to the licensing question, their behavior thus far sure seems to indicate they will answer Yes.

  • 97. FredDorner  |  January 17, 2015 at 1:31 pm

    If FF&C were at issue, Loving v Virginia would not have been necessary.

  • 98. FredDorner  |  January 17, 2015 at 1:35 pm

    Ian, a divorce is the public action of a court and definitely subject to FF&C.

    See this explanation as to why marriage itself might not be similarly subject to FF&C: http://www.huffingtonpost.com/tobias-barrington-w

  • 99. ianbirmingham  |  January 17, 2015 at 1:50 pm

    That makes no sense. Loving v. Virginia was an attack on criminal laws against interracial marriage (those laws were struck down). In that case, Virginia already did recognize the marriage (interstate interracial marriages were treated as equivalent to Virginia marriages). The problem was that Virginia then criminalized the marriage. Loving was not a marriage recognition case at all.

  • 100. ianbirmingham  |  January 17, 2015 at 1:58 pm

    That article is based upon the ill-defined and much-criticized Public Policy Exception to FF&C, which is also the basis of the 6th Circuit's ruling in the Bourke case which is on appeal here. And divorce is no different; cases in Florida, Texas and elsewhere have cited the Public Policy Exception as a basis for refusing to grant or recognize divorces in same-sex marriage cases. But for opposite-sex divorce, SCOTUS has ruled that FFC applies:

    "Williams v. North Carolina, for example, is a significant case in the
    interstate recognition of divorce decrees. The petitioners in Williams, each
    previously married in North Carolina, obtained a divorce in Nevada and
    subsequently married each other. Upon returning to North Carolina, the
    newly married couple was arrested and later convicted of bigamy because
    North Carolina refused to accept the Nevada divorce decrees as valid. The North Carolina Supreme Court upheld their convictions on appeal. The
    United States Supreme Court reversed, holding that the Clause required
    North Carolina to recognize the Nevada divorce decrees. The Court warned that permitting one state to refuse to recognize the divorce decrees of another would “bring ‘considerable disaster to innocent persons’ and
    ‘bastardize children hitherto supposed to be the offspring of lawful marriage.’ … the principle that a state must afford full faith and credit to a
    divorce decree rendered in another state remains intact."

    http://www.uiowa.edu/~ilr/issues/ILR_98-1_Fraioli

  • 101. Fledge01  |  January 17, 2015 at 2:06 pm

    A marriage equality case would implicate the Commerce Clause if Congress did pass a federal law that favored marriage equality, then I think a state ban would violate an interstate commerce.

  • 102. VIRick  |  January 17, 2015 at 2:14 pm

    In the 2003 case,"Lawrence v. Texas," in striking down the Texas sodomy law, Justice Kennedy wrote that the Constitution protects “adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Although this 2003 opinion stated that it was not deciding the question of same-sex marriage, Antonin Scalia begged to differ.

    In his histrionic dissent in "Lawrense v. Texas," Scalia wrote, if states may not use laws to express moral disapproval of homosexual conduct, “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?”

    Precisely so. Scalia actually gets it, even if he can't admit it. The more I read of his hissy-fit dissents, the more I swear he's really a deeply-closeted homosexual himself.

  • 103. guitaristbl  |  January 17, 2015 at 2:15 pm

    Just spent some time reading again the oral arguments in Windsor. The "don't touch" approach to federalism in respect to state marriage recognition and celebration primarily from Scalia, Roberts, Alito but also from Kennedy at certain points is worrying to say the least. I am just trying to find a positive glimpse somewhere that Kennedy implied that state bans may be unconstitutional and currently I can't.

    And then Roberts' obsession with how much political power the marriage equality supporters have and how influential we are is just infuriating in a Sutton-like way only more cynical.

    And then I think about Schuette and the fact that Kennedy wrote that opinion and I only get more worried.

    Ugh, till the decision is handed down I will have many doubts about a positive ruling honestly. Let's just hope that the celebratory spirit many of you have around here is not in vain..

  • 104. Fledge01  |  January 17, 2015 at 2:17 pm

    Is it possible for the 5th circuit to rule before SCOTUS, or is it certain they will hold off now?

  • 105. flyerguy77  |  January 17, 2015 at 2:24 pm

    Schuette DECISION AND fight for marriage equality is totally different. Schuette didn't ban anything or restrict other people's civil rights.. Holding: An amendment to Michigan’s constitution that prohibits state universities from considering race as part of its admissions process does not violate the Constitution’s Equal Protection Clause. Other words. Mich universities can't discriminate based on race.. admissions should be blind like marriage..

  • 106. ianbirmingham  |  January 17, 2015 at 2:24 pm

    Windsor oral argument link here: http://www.supremecourt.gov/oral_arguments/argume

  • 107. guitaristbl  |  January 17, 2015 at 2:24 pm

    Both sides have asked the panel in the 5th to rule no matter what SCOTUS did in terms of granting cert to the cases from the 6th. Alaska on the other hand has asked the 9th to stay proceedings till SCOTUS decides.

  • 108. guitaristbl  |  January 17, 2015 at 2:26 pm

    I know, I read them from the transcript as I said.

  • 109. guitaristbl  |  January 17, 2015 at 2:30 pm

    It also said many things about the democratic process and people being able to make such determinations on the ballot and discuss them etc. It did not say that if they had approved the opposite, that affirmative action is a good college admission policy, that would be unconstitutional if the opponents of affirmative action brought the issue at court.

    Of course the court will have the chance to re visit this particular issue once Fisher reaches SCOTUS again, but clearly Schuette does not work in our favour. Was it more of a decision based on race neutruality or "honoring the democratic process" ?

  • 110. flyerguy77  |  January 17, 2015 at 2:39 pm

    Please explain to me why SCOTUS didn't hold on 4th, 7th, and 10th cases, till it was a different and opposite decision like 6th? They rejected appeals and denied other stays in other cases If SCOTUS was going to rule against us they would have hold on these cases, accept cert one of them……..

  • 111. flyerguy77  |  January 17, 2015 at 2:42 pm

    thank you

  • 112. hopalongcassidy  |  January 17, 2015 at 2:46 pm

    Schuette was decided exactly right. Rewarding an individual for an accident of birth is just as despicable as denying them opportunities for the same reason. I would be FURIOUS if someone were forced to hire me, for example, simply because I am gay…just as I would be if they refused to by the same illogic. There is not one redeeming facet of the nonsensical concept of 'affirmative action'. None.

  • 113. guitaristbl  |  January 17, 2015 at 2:47 pm

    Worst case scenario ? Well from one aspect we have the liberal wing, who had no reason to hear these cases. On the other hand a conservative wing hesitant to even keep them pondering due to the uncertainty on what Kennedy thinks. Kennedy might have voted to grant them in order to reverse but did not share that thought with his colleagues, thus all the other 8 could not trust him.
    Now that there is a split, there is a constitutional authority to hear the cases. To them it may all just be procedural and no societal or legal cost at all comes into consideration. They will simply issue another ruling the year after on whether the marriages performed in the states that have ME due to the Oct 5 denial of cert + the 9th circ cases + Florida are valid or not.
    From a strictly judicial point of view, denials of certs or stays have no precedential value. For the stays they might have thought that it should be up to the appeals court for instance.

    (P.S. I am presenting the worst case scenarios here – they are unpleasant but the truth is they have all the power to uphold the 6th if they want to no matter the denial of cert and the stays. It's a zero or hero situation.Either marriage equality wins the battle or the equality movement is set back immensly and will take some time to recover from that).

  • 114. guitaristbl  |  January 17, 2015 at 2:50 pm

    That's an acceptable view on affirmative action,regardless if I share it or not. But that's my exact question : Do we accept it was a decision based on those merits of equality (Roberts said the same thing in Shelby for instance) or the rhetoric from Kennedy on the democratic process plays a role here ?

    And I pose the question again : If the affirmative action amendment has failed and the opponents of affirmative action brought the affirmative action policy to court would the court uphold it or not ? The question was posed in Fisher with no definitive ruling though.

  • 115. Pat_V  |  January 17, 2015 at 2:58 pm

    Thanks Rick. Maybe Raga, can you also double confirm, just to close the topic once and for all? At least then Ianbirmingham won't come back with more and more comments repeating the same things about the "full faith and credit clause" over and over again…
    I know nothing about this issue, but certainly the credibility of this commenter is pretty low, after he was already trying over and over again to claim that ACLU deserved lots of credit for the Florida success even though the plaintiff Brenner himself explained clearly how the case brought by ACLU came later on and didn't change anything to the end result…

  • 116. RnL2008  |  January 17, 2015 at 3:18 pm

    The more these bills are being pushed, the more the ANIMUS is likely to come through and the stronger the possibility that they will be tossed with the right lawsuit!!

  • 117. RnL2008  |  January 17, 2015 at 3:20 pm

    I totally agree with ya Zack, to my in my opinion Gay Republicans are just about the worst sort of individuals because they will sacrifice their rights in order to gain more of their money…….and to me, that's wrong…….money is nice and needed, but it's NOT what's going to get you through the hard times when you need someone who understands you.

    Just saying!!!

  • 118. FredDorner  |  January 17, 2015 at 3:24 pm

    "clearly Schuette does not work in our favour."

    That's just a complete misinterpretation of what the Schuette ruling was all about. The people can choose to extend or retract an affirmative action program, but they cannot choose to restrict the civil rights of a minority.

  • 119. ianbirmingham  |  January 17, 2015 at 3:25 pm

    Page 66 of the Windsor oral argument relates DOMA Section 2 to the Full Faith and Credit clause…

    http://www.supremecourt.gov/oral_arguments/argume

    See also this analysis of FF&C…

    http://www.americanbar.org/content/dam/aba/admini

  • 120. wes228  |  January 17, 2015 at 3:32 pm

    SCOTUS re-worded the questions themselves. The lawyers in this case will argue these questions on SCOTUS' terms, not on their own, and not on yours.

  • 121. VIRick  |  January 17, 2015 at 3:34 pm

    It certainly was (and is), and its precedent-setting import is still cited as such.

    Here's what I wrote on another website on 14 February 2014, immediately following the District Court decision in "Bostic v. Schaeffer," a ruling which overturned Virginia's ban on out-of-state recognition, as well as in-state performance, of marriage between same-sex couples:

    "The state of Virginia can not refuse to recognize a legal marriage performed in another jurisdiction.

    Back in the 1960s, the state of Virginia was sued on precisely this same point,– and lost,– in the Supreme Court decision, "Loving v. Virginia" (a critical, precedent-setting case cited in the current decision), because the state at that time refused to recognize a legally-binding marriage performed in the District of Columiba between a couple of two different races.

    This time, the state of Virginia was sued,– and lost,– for refusing to recognize a legally-binding marriage performed in California between a couple of the same sex (among other matters).

    The cases are perfectly parallel. As a direct result of the decision in "Loving v. Virginia," the anti-miscegenation laws still then extaxt in 16 states were permanently enjoined from being enforced. Henceforward opposite-sex couples of any race could marry and have their marriages recognized and respected in all 50 states.

  • 122. wes228  |  January 17, 2015 at 3:35 pm

    If the 14th Amendment requires states to recognize out-of-state same-sex marriages on the same terms as opposite-sex marriages, there is no need to discuss the Full Faith and Credit Clause because the 14th Amendment dispositively determines the outcome of the case.

    It is only if they find that the 14th Amendment does NOT require states to recognize out-of-state same-sex marriages would they then need to look at the FFC Clause (after finding that DOMA Sec. 2 violates the Constitution somehow). This would have to be done in a different case because SCOTUS did not grant cert to any questions regarding the FFC Clause.

  • 123. ianbirmingham  |  January 17, 2015 at 3:45 pm

    Go back and read Loving again. It doesn't say what you think it says.

  • 124. Zack12  |  January 17, 2015 at 3:54 pm

    Then spend the next four months worrying.

  • 125. Zack12  |  January 17, 2015 at 3:58 pm

    If you ask me, we should see what happens with the 5th circuit.
    If they issue a 2-1 ruling in our favor and don't issue a stay and SCOTUS refuse to grant one, that will be the ball game.

  • 126. FredDorner  |  January 17, 2015 at 3:58 pm

    Loving initially concerned out of state recognition and going out of state to avoid marital restrictions. So if your FF&C analysis were correct, there was no reason for the court to strike down the bans on mixed-race marriage, only the criminal. penalties on going out of state to conduct a marriage which is unlawful in your state of residence, something which a number of states STILL have on their books (like my state of WI).

    But if FF&C actually applied to marriage directly then Loving wouldn't have been necessary to begin with since Virginia would have necessarily recognized their DC marriage.

    Here's an explanation of why FF&C doesn't apply: http://www.huffingtonpost.com/tobias-barrington-w

  • 127. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 3:58 pm

    "From a strictly judicial point of view, denials of certs or stays have no precedential value."

    While true at the United States level to other circuits, it does inherently establish precedent within the circuit that ruled for which certiorari was not granted – hence how we got ME in WV, NC, SC, MT, etc. Still a big deal there!

  • 128. scream4ever  |  January 17, 2015 at 4:01 pm

    We should also be hearing at any time if the 11th Circuit will schedule oral arguments in Brener or simply put them on hold.

  • 129. FredDorner  |  January 17, 2015 at 4:07 pm

    "This incudent plays directly into the desires of many right wingers that the feds are interfereing with state rights laud in the 10th amrndment."

    Well, duh. The confederate states and red states have ALWAYS deeply resented the 14th Amendment and the Incorporation Doctrine. That's not a new thing but that's precisely why the 14th Amendment exists in the first place, so that a bigoted majority cannot infringe the civil rights of a disfavored minority. And that's why conservatives will always be on the losing side of history.

  • 130. guitaristbl  |  January 17, 2015 at 4:11 pm

    I will of course, that's the prudent approach. Downright arrogance and total confidence on a court that relies on one vote on such issues can be a crashing approach if the result is not the wanted one.
    With my approach, the joy of victory is bigger and the time of mental and political recovery from a loss is smaller. I got nothing to lose by being skeptical and cautious really.

  • 131. guitaristbl  |  January 17, 2015 at 4:11 pm

    Of course it is, but such precedent can be overruled by SCOTUS. I just want to point out again that we are talking worst case, but possible, scenarios.

  • 132. guitaristbl  |  January 17, 2015 at 4:12 pm

    An affirmative action program is considered by many part of the racial civil rights battle as well.

  • 133. ianbirmingham  |  January 17, 2015 at 4:14 pm

    No, it didn't. "The Lovings were convicted of violating § 258 of the Virginia Code:

    Leaving State to evade law. — If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage." The law recognized, then criminalized, the marriage.

    The article you refer to talks about the Public Policy Exception to the FF&C clause, which is the basis of DOMA and also the basis of the 6th Circuit ruling in the Bourke case which is on appeal here. That exception will be examined (and hopefully be ruled unconstitutional) as part of the analysis of Question 2.

  • 134. guitaristbl  |  January 17, 2015 at 4:16 pm

    It will be interesting to see how the panel on the 5th handles the stay/mandate issue should they rule and rule in favour of ME. They most probably know that if the issue has enough time, it would go en banc and be overturned most probably. On the other hand they may know that, should they rule, an en banc court would not have time to hear, let alone rule, on the issue before SCOTUS decides the issue. Thus they have the choice of sending a message to the court (which can be done solely by ruling in favour of ME) and putting more pressure on them by adding three more states to the ME list, leaving essentially ten and a half (Missouri) states without ME if they do not issue a stay.

    The next crucial step is to see whether they will freeze procedures pending resolution from SCOTUS despite both parties asking for a decision.

  • 135. guitaristbl  |  January 17, 2015 at 4:20 pm

    Did Bondi or the plaintiffs ask for a stay on procedures pending resolution from SCOTUS on the 6th circ. cases ? I think Bondi at least will ask for it..

  • 136. scream4ever  |  January 17, 2015 at 4:39 pm

    I'm hoping it'll be before then and in time for Pride weekend, as was the case in the Windsor ruling.

  • 137. ianbirmingham  |  January 17, 2015 at 4:46 pm

    Provided the link so others could take a look also.

    Kennedy is on our side, no need to worry about him. Alito is with Scalia & Thomas (against marriage equality). Roberts is the swing vote, and he's more likely to join us on Question 1 than on Question 2.

  • 138. F_Young  |  January 17, 2015 at 4:49 pm

    Fledge01: "Is it possible for the 5th circuit to rule before SCOTUS, or is it certain they will hold off now?"

    According to another post here, both sides of the Texas case asked for a decision regardless of the SCOTUS cert grant. So, I expect that the 5th Circuit might issue its decision, and, if so, that that the decision would be issued before June 2015.

    However, if the 5th Circuit's decision is to overturn the Texas ban, which now appears likely, the decision would almost certainly be appealed to the 5th Circuit en banc, and it would likely be stayed in the interim, and I doubt that the en banc decision would be published before June 2015. So, the en banc decision would have to be decided according to precedent set by the SCOTUS decision in June 2015.

    IANAL

  • 139. Tony MinasTirith  |  January 17, 2015 at 4:58 pm

    Now that the definitive "questions" are known, perhaps the 5th CA judges will write their opinion in answer to the questions directly to SCOTUS' two questions. If pundits are correct and at least Graves and Higgenbothom were persuaded to rule in favor of marriage equality, they now have the correct questions to answer. If they are in favor of equality, I can't imagine that they'd abrogate their responsibility and this opportunity now. I'd think they'd want to get in with the rest of the judiciary and be on record as being on the right side of history, the right side of justice. Perhaps they may even persuade Smith that being arbitrary is futile and he's more than likely to not just be on the wrong side of history, but be slapped down by the Supremes (at least 5, maybe 6 of them). So, perhaps Texas, Louisiana and Miss. will have Marriage Equality by St. Patricks. It will be even sweeter when the request for a stay, referred to the full court by Scalia is DENIED DENIED DENIED. Maybe the 11th will take notice and also want to get in on the act. In the end, SCOTUS' ruling may only overturn bans in the last 8 remaining states out of the 6th and 8th circuits. I think we will get a positive ruling out of the 5th sooner than expected.

  • 140. Tony MinasTirith  |  January 17, 2015 at 5:42 pm

    Do you think Brian Brown of NOM will follow in the footsteps of the far-right French essayist who shot and killed himself before the altar of Notre Dame Cathedral in Paris in protest, after the French legislature passed Marriage Equality? Or maybe he'll commit suicide by hamburger(s). A Fool and his life are soon parted.

  • 141. StraightDave  |  January 17, 2015 at 6:13 pm

    Regardless of what DOMA-2 says, Congress cannot give the states "permission" to ignore the 14th Amendment. They might arguably be able to allow states to:
    1) ignore all out of state marriages, or
    2) Ignore all marriages from a particular state

    But Congress did none of the above.
    What they have no legitimate possibility of telling the states is that they can pick and choose between 2 couples, one SS & one OS, who are holding identical pieces of paper issued by the same state under that state's legal authority. That's why this case hinges entirely on the 14th Amdmt. FFC can not be interpreted or construed in any way that contradicts the 14th, nor can any act of Congress. FFC is a total red herring here.

  • 142. GregInTN  |  January 17, 2015 at 6:23 pm

    I think what you may be looking for is contained in the written opinion where Kennedy points out:
    State laws defining and regulating marriage, of course, must respect the constitutional rights of persons… but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.”

    I find it amazing how so many ME opponents focus so much on the latter part of that statement while completely dismissing the start of the statement.

  • 143. guitaristbl  |  January 17, 2015 at 6:24 pm

    Brian Brown and his ilk have for a long time largely given up the battle in the US. They have moved their focus, along with anti-LGBT activists from other countries, towards forming a strong influential global lobby. The encouragement and lobbying for anti-gay laws in Russia, the lobbying in Africa for harsher punishments and, most of all, the money pouring and travelling to western europe, the heart of LGBT progress worldwide are their current priorities. Brown attended a "summer school" of the Manif pour tous group last summer, which trained anti-LGBT activists on how to promote their cause, he has invested a lot in that movement in France and wants to spread it to other european countries as well. Spain has been targeted mainly by anti-abortion groups. Through the rise of the far right in europe those groups are creeping up and get their agenda in the conversations. Brown knows he has lost in the USA but he has much fertile ground to continue spreading hatred even in western europe, who is ideologically vulnerable to the attacks of the far right, right now.

    This article is pretty enlightening :
    http://www.buzzfeed.com/lesterfeder/the-rise-of-e

    So Brown is far from done. And ,as a european, I am going to feel the consequences of his actions once he totally gives up in the US (soon enough).

  • 144. Tony MinasTirith  |  January 17, 2015 at 6:30 pm

    Remember, the 5th held hearings on the same day SCOTUS was to initially conference the 6th's petitions. The panel should have had every reason to believe that SCOTUS would grant cert, as no body in their right mind would doubt that they would. So, if the panel knew this and did not postpone oral arguments, that means they intend to do their job. I also believe that it's more than likely that these panel judges along with every single judge ruling in the past or future walks into court knowing what their decision is. The job of the attorney's is to change their mind, and that is unlikely in these cases. So, that means that Higgenbotham and Gravaes already had it in mind to hear the cases and to uphold Texas, and Miss, and overturn LA. They didn't go through the oral arguments and briefings just to throw it all in the trash because their decision is irrelevant. They will issue a ruling. And as slow as the 5th CA is, an Enbanc vote wouldn't be ready till December…by, then it is ALL OVER. We win, game, set match.

  • 145. ianbirmingham  |  January 17, 2015 at 6:45 pm

    ISIS is setting new records for homophobia in Mosul, Iraq; Brian Brown should go visit them! He should only need a one-way ticket….

    http://www.dailymail.co.uk/news/article-2914785/T

  • 146. 1grod  |  January 17, 2015 at 6:48 pm

    Ian – Is not Section 2 DOMA (Powers Reserved to the State) implicated? As I recall in 01/2014 Judge T. Kern on pg 10-12 of the decision in Bishop v Holder titled: Purpose of Section 2 DOMA quoted : “Section 2’s purpose, evident from its terms, is to ensure that states will not be required to recognize same-sex marriage by virtue of the Full Faith and Credit Clause." http://hrc-assets.s3-website-us-east-1.amazonaws…. G

  • 147. brandall  |  January 17, 2015 at 6:49 pm

    I wish I could give both of you 10 thumbs up for this comment topic. About a year ago, I remember a bunch of us on EoT went on a rampage one weekend on this same topic.

    One additional thought. The media using "gay marriage" is sexist. More education and work to do once we win ME and move on to our other rights we need to secure.

  • 148. ianbirmingham  |  January 17, 2015 at 7:03 pm

    Section 2 of DOMA will be "collateral damage". Analysis of the Full Faith and Credit clause during the Question 2 part of this case will hopefully have the effect of narrowing or eliminating the "Public Policy Exception" to the Full Faith and Credit clause, which is what DOMA is based on. With its foundation washed away, DOMA becomes a sitting duck that is quickly and easily toppled by a slam-dunk civil suit against Section 2. Section 1 has no significance and Section 3 was held unconstitutional by Windsor.

  • 149. brandall  |  January 17, 2015 at 7:08 pm

    It can be so hard to understand the inner feelings of any human being. While I don't know what Scalia's closeted sexual feelings are, we've seen so many public examples of "he who protesteth the most" actually being gay or bi. I am certain this phenomena has been going on for centuries, but in today's social media environment, it is almost impossible to control or cover it up now.

    Interesting that this is a male/gay thing and not a female/lesbian thing. I don't remember any media article about a women being "caught" in this situation. But, then Sarah Palin is very media savvy and Alaska has a lot of tundra to play in.

    It truly is quite striking how Scalia rules one way, but clearly sees the long-term implications and impacts and how they have created a path to ME. So, you could be right. He's silently cheering inside and sadly lamenting "if I had only been born 30 years later."

  • 150. VIRick  |  January 17, 2015 at 8:15 pm

    "…. the 6th Circuit's ruling relied heavily upon the Full Faith and Credit clause."

    The 6th Circuit's ruling is Sutton. Whatever he relied upon is of no consequence, whatever and however he arrived at his conclusions. He also relied quite heavily upon his own sacrosanct interpretation of the "democratic process," despite the fact that Rose has already clearly pointed out for all and sundry the biggest single fault with the so-called "democratic process," and its resulting majoritarian rule trampling on minority rights:

    As per Rose (and bless her heart): "People are stupid."

    By re-phrasing the two questions, and focussing all of their attention upon the Due Process and Equal Protection provisions of the 14th Amendment, it's a given that that's the route the Supreme Court will be taking in reaching its decision, and that that's all they wish to hear discussed at oral arguments.

    In effect, the Supreme Court has already dismissed Sutton. So should you. So should I. So should everyone.

  • 151. Rick55845  |  January 17, 2015 at 8:22 pm

    That doesn't make affirmative action a civil right. Affirmative action is an attempt to make amends and to level the playing field for people who had long been discriminated against. It's a policy matter, not a civil right. No one is discriminated against by discontinuing the policy.

    Schuette was properly decided, and it works neither for or against us.

  • 152. wes228  |  January 17, 2015 at 8:26 pm

    Section 2 is not an example of the "public policy exception." The public policy exception is what would allow states to refuse to recognize out-of-state same-sex marriages if DOMA Section 2 did not exist.

    DOMA Sec. 2 is an example of Congress' express power under the FFC Clause to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." The "effect thereof" is that they are null and void in the states that do not wish to acknowledge them.

  • 153. ronbk  |  January 17, 2015 at 8:33 pm

    "Article IV of the Federal Constitution provides that 'Full Faith and Credit shall be given…' … Congress enacted the Full Faith and Credit Act, a federal statute designed to implement the constitutional mandate… Technically speaking, DOMA amended the Full Faith and Credit Act…"

    http://scholarlycommons.law.hofstra.edu/cgi/viewc

  • 154. flyerguy77  |  January 17, 2015 at 8:39 pm

    Brian Brown needs to come out of the closet first before he can find another job :-) AS now I have a good feeling about June.. Can we say rainbow fireworks?

  • 155. VIRick  |  January 17, 2015 at 8:48 pm

    "He's silently cheering inside and sadly lamenting "if I had only been born 30 years later."

    Indeed! Of course, we can't "prove" anything, but the more I study his scathingly insightful dissents, the more I see the classic symptoms of the bitterly self-loathing, deeply-hidden closet case. I mean, 12 years ago, in his "Lawrence" dissent, he clearly foresaw Marriage Equality approaching on the horizon. It may have made his skin crawl, but why?

  • 156. VIRick  |  January 17, 2015 at 8:56 pm

    Bondi's still hiding under her desk, sucking on a dildo-shaped pacifier, and hasn't said shit to a soul ever since Judge Hinkle totally "clarified" everything for her in Florida on 1 January.

  • 157. VIRick  |  January 17, 2015 at 9:10 pm

    Tony, that was an absolutely brilliant argument and flawless presentation of fact, carefully laid out step by step. You just convinced me that that's precisely what's in the cards, coming from the 5th. At first glance, it seems sooooooo unlikely. But then, given how far they've gone, this panel really does seem intent on issuing its decision, and would have to do so without issuing a stay, so that on petition, SCOTUS could then deny the granting of a stay.

  • 158. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 9:46 pm

    Of the eight petitions granted certiorari on Friday, was it odd that the briefing schedule for the ME cases was laid out in the order itself? I understand I guess the uniqueness of the amount of time granted to all sides given the questions posed. Is the schedule indicating orals will happen this term versus not? Not sure protocol for how the briefing schedule is normally handled.

    And therefore do we assume the other four cases that were granted with no briefing schedule meant they might not happen in this term?

  • 159. FredDorner  |  January 17, 2015 at 9:48 pm

    "The law recognized, then criminalized, the marriage. "

    Which is what I just said. So Virginia recognized a mixed-race marriage in that case for the purposes of prosecution, but not that of any other married mixed-race couple who later chose to reside in or travel to Virginia. Thus FF&C did not and does not apply, otherwise Loving v Virginia never would have been necessary.

  • 160. VIRick  |  January 17, 2015 at 9:55 pm

    Off-topic:

    MEXICALI, Baja California, Mexico — "La Cronica" reports that the first same-sex marriage in Baja California was held Saturday, 17 January 2015, in the city of Mexicali after officials ended an 18-month fight that led to a Mexican Supreme Court order to permit the wedding (as well as to the Supreme Court's eventual overturning of the Baja California ban on marriage between same-sex couples).

    Attorney Jose Luis Marquez Saavedra said the city let Victor Fernando Urias Amparo and Victor Manuel Aguirre Espinoza marry on Saturday, 17 January 2015, and he expressed satisfaction that their rights had been upheld. The day before, Saavedra had filed a complaint against Mexicali officials after authorities again blocked the marriage last weekend despite the high court ruling. Urias said today he too was satisfied the marriage had finally been allowed to go forward, telling local reporters that the case showed that “when people work together, this works.”

    When Urias and Aguirre first tried to marry in Mexicali in 2013, the local Civil Registry rejected them, saying Mexico’s constitution recognizes only unions of opposite-sex couples. They then went all the way to the Supreme Court of Mexico and got an injunction authorizing their marriage. Civil Registry officials rejected their petition again, saying bureaucratic procedures had not been followed. On a third try in November, the registry said the couple had failed to attend mandatory pre-marriage counseling.

    On 11 January, the couple again returned to city hall for their marriage ceremony and were declined for the fourth time due to a citizen’s allegation that the two men “suffer from madness.” The accuser was Angelica Guadalupe Gonzalez Sanchez, president of the Coalition of Baja California Families, who, with her husband, facilitates the mandatory pre-marital talks. Saavedra then filed his complaint Friday accusing the mayor, municipal workers and a state employee of failing to fulfill their public duties.

  • 161. FredDorner  |  January 17, 2015 at 10:02 pm

    "And divorce is no different; cases in Florida, Texas and elsewhere have cited the Public Policy Exception as a basis for refusing to grant or recognize divorces in same-sex marriage cases."

    I'm unaware of any example where a state has refused to recognize another state court's divorce of a same sex couple (it would be illogical not to recognize the divorce but to recognize them as still married even though the state doesn't recognize same-sex marriage). That's the point of FF&C regarding the recognition of public records and acts of the judiciary.

    However there have been a number of cases where a bigoted state has refused to recognize a same-sex marriage from another state for the purposes of divorce. There are also several examples where courts have recognized those marriages for the purpose of divorce.

  • 162. RnL2008  |  January 17, 2015 at 10:04 pm

    Yep, that's why Stupid SHOULD hurt……lol:-)

  • 163. VIRick  |  January 17, 2015 at 10:38 pm

    "Who wants to get married?"

    Tony, was that a proposal? If so, "I do!"

  • 164. VIRick  |  January 17, 2015 at 11:16 pm

    OMG! Yes, Ryan!

    I understand that prior to SCOTUS' 16 January conference, that they had already granted 72 writs of certiorari for the current term. In recent years, they have averaged between 75-80 grants per term. So, the 4 ME appeals got time-slots 73-76 of the current term, complete wirh a definitive briefing schedule. SCOTUSblog seems to think that oral arguments, once the briefs are all in, will thus occur on 29 April, probably the last day of the term for hearing of oral argument in order for a decision to be announced on 1 July 2015, the absolute last day for announcing decisions for the current term.

    The remaining 4 cases which were granted certiorari, but without an attached briefing schedule, could well mean that they'll be held over until next term (as will any additional grantings of certiorari to any new cases considered at subsequent conferences, barring an unforeseen emergency case).

    The 6th Circuit appeals just slipped under the wire for the current term, not a day too soon. Sutton should have held off on issuing his out-of-step ruling for another week. Instead, just like Bondi, he was foiled in the last-minute count-down to judgment day. She mis-counted by 7 days, and so did he.

  • 165. mario315  |  January 17, 2015 at 11:38 pm

    Oh oh…. Just read today's NY Times article by Adam Liptak (1-17-15): "Taking Up Gay Marriage, but On Its Own Terms"….

    Should we take seriously those law professors quoted in the article regarding their concerns with how SCOTUS phrased the 2 questions to be addressed ??? …. They seem to think we're being set up by Roberts to get an unfavorable decision…. BUT wouldn't Ginsburg and friends see through that ???…..

    Hoping to hear some reassuring counter points here… Somewhat worried right now, it's The New York Times after all….

  • 166. RnL2008  |  January 18, 2015 at 12:34 am

    All the law professors are doing is SPECULATING…….my thoughts on what the questions mean is that SCOTUS is going to rule in our favor, and probably toss Section 2 of DOMA.

    If SCOTUS was going to rule against us, they could and probably would have done that back in October, the fact that they DIDN'T speaks more to the way they are more than likely to head come June.

    The answer to both questions in my opinion and I'm NOT a lawyer, is Yes…….why? Because the State DOESN'T have a compelling reason to put in a specific gender make-up for who can marry and it interferes with a Fundamental right and one's personal decision…..and with the recognition question, the answer would be Yes as well…….again, if the State is going to recognize the marriage of John and Mary who married in Nevada, but live in Michigan, then the State should ALSO recognize the marriage of Ellen and Portia who married in California and moved to Michigan, there again is NO reason that the state can claim as to why ONLY the opposite-sex couple's marriage is valid and recognized……so, the States will have to take a look and see if they want to recognize ANY marriage from another state and if they decide NOT to recognize ANY marriages from out of state, opposite-sex couples will be screaming bloody murder…….it's NOT gonna happen nor go over well.

    But remember that I am NOT a lawyer, but have read enough flipping briefs to see the writing on the wall……my predication is at the very least a 5-4 ruling in our favor tossing the remaining bans as UNCONSTITUTIONAL……..take a look at Zablocki v. Redhail, 434 U.S. 374 (1978)……..here the State of Wisconsin tried to prevent Zablocki from marrying because he was behind on child support payments and SCOTUS stated that a State CAN'T prevent someone from marrying just because they owe child support…….we also have Loving vs Virginia, if we substitute gender/sexual orientation in place of race…….we can clearly show that these marital bans are what they have been ruled……denying Gays and Lesbians the right to marry WON'T make John and Mary more responsible with regards to procreation or staying together for the sake of raising their children…….the States know these arguments or reasoning fail because one has NOTHING to do with the other……..just like my marriage has NO affect on my aunt and uncle's marriage…….and to say that by allowing Gays and Lesbians to marry will cause the sky to fall is just a bunch of BS.

    Again, just my opinion……but hell, SCOTUS could do something silly…..but I just DON'T believe they will!!!

  • 167. F_Young  |  January 18, 2015 at 1:15 am

    Will the Supreme Court cement Obama's gay rights legacy?
    It’s a surprising development for a president who has faced criticism on the issue. http://www.politico.com/story/2015/01/supreme-cou

  • 168. F_Young  |  January 18, 2015 at 1:48 am

    I like this map the best. They split Missouri in two:
    http://en.wikipedia.org/wiki/File:State_recogniti

  • 169. F_Young  |  January 18, 2015 at 2:01 am

    VIRick: "On 11 January, the couple again returned to city hall for their marriage ceremony and were declined for the fourth time…"

    Thanks for the update, Rick.

    What a shame the couple had to live through such a nightmare before they could have their big day. What a roller coaster of feelings they must have had. I'm so glad they were finally able to get married.

    The animus of the city authorities was pretty clear.

    Now, if the Supreme Court of Mexico would hurry up and issue a decision in the cases, from either Colima or Chihuahua, Mexico would get marriage equality nation-wide before the USA.

  • 170. ianbirmingham  |  January 18, 2015 at 3:03 am

    FF&C does apply directly to marriage. The Loving case is not the normal situation. No state today is recognizing but then criminalizing marriages. Instead, they are all just trying to avoid giving recognition – and that is exactly what FF&C is designed to prevent them from doing.

    http://ilj.law.indiana.edu/articles/12-Sanders.pd

  • 171. F_Young  |  January 18, 2015 at 3:07 am

    Colorado bakery that refused to ice cake with anti-gay slogans calling homosexuals 'detestable' is slapped with 'religious discrimination complaint' and threat of a court case
    http://www.dailymail.co.uk/news/article-2915147/B

  • 172. ianbirmingham  |  January 18, 2015 at 3:12 am

    "Even before DOMA many claimed that section 2 was unconstitutional, The argument was that it violated Article IV, section one of the Constitution–otherwise known as the Full Faith and Credit clause. That clause states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Under the Articles of Confederation, the thirteen original states often refused to recognize legal acts from other states, as each often discriminated against one another. In the 1942 in Williams v. North Carolina the Supreme Court declared the purpose of the Full Faith and Credit Clause was “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.” …

    While Congress has authority to define how such full faith shall be proved, it is not clear that it has the authority to limit the scope of the Full Faith and Credit clause. It is doubtful that Congress could pass a law permitting states to refuse to recognize opposite-sex marriages performed in other states, or even to allow them to refuse to recognize racially-mixed or mixed-faith marriages. The same principle applies to same-sex marriages. While Justice Kennedy in Windsor did say that marriage was a state issue, the Full Faith and Credit clause can be read as an abrogation of that state prerogative in some instances. Moreover, given the language of Windsor where the Court assailed the federal government under Section 3 for singling out same-sex couples for special burdens after a state sought to protect them, one can apply similar logic under the Fourteenth Amendment Equal Protection clause. One can argue that states cannot single out same-sex couples for special burdens and treat them differently from opposite-sex couples."

    http://www.tcdailyplanet.net/blog/david-schultz/s

  • 173. ronbk  |  January 18, 2015 at 3:55 am

    " A majority of states have enacted mini-DOMA laws or amendments, and of those, five indicate they will not recognize same-sex marriage-related judicial proceedings, such as divorce proceedings…."

    http://www.bu.edu/law/central/jd/organizations/jo

  • 174. montezuma58  |  January 18, 2015 at 4:07 am

    I hope the group pushing this stunt gets hit up for legal fees when they finally loose. It's nothing but a lame stunt that the anti equality side will misconstrue to try to portray anti discrimination laws as one sided or unfair.

    They will gloss over the fact that the laws deal with rejecting customers based on characteristics of the customer not on the specific details of the product being sold. The baker in this case has the right to not make a cake of a specific design. Just as a baker who doesn't like gay people marrying doesn't have to sell a cake with two groom figurines on top. What neither can do is refuse to sell what they normally would to anyone else based on their (or their customers') religious views.

    Essentially what the people behind this stunt are doing is the same as trying to claim a kosher grocery store is being anti Christian because the store doesn't sell bacon. Of course though, these people will conflate negotiating details on one deal with "we don't serve your kind here."

  • 175. weshlovrcm  |  January 18, 2015 at 5:41 am

    No, he loves money too much.

  • 176. F_Young  |  January 18, 2015 at 6:13 am

    weshlovrcm, I hadn't deciphered your username till just now.

  • 177. wes228  |  January 18, 2015 at 7:04 am

    "Even before DOMA many claimed that Section 2 was unconstitutional…" That doesn't make any sense. Section 2 is part of DOMA.

    This article gives no legal justification for why Section 2 would violate the Full Faith and Credit Clause.

    The Supreme Court is not going to 1) overturn DOMA Sec. 2 when it is not being challenged in any of these cases or 2) overturn the public policy exception which would trigger a vast ripple effect traversing many different areas of law, creating mess and confusion in the courts on a wide range of issues.

    They are not going to do this because the issue can be resolved neatly using the 14th Amendment's Equal Protection Clause. Courts always take the path of least resistance in resolving legal questions.

  • 178. guitaristbl  |  January 18, 2015 at 7:11 am

    If we talk on a judicial level the 5th could not postpone arguments on the mere assumption or even certainty that SCOTUS will grant cert. Only after the granting has happened that can be used as a legal argument. So the rest of your rationale may be true but as for the first part about postponement I don't think an appeals court has ever postponed arguments with the reasoning SCOTUS MAY grant cert.

  • 179. Sagesse  |  January 18, 2015 at 7:16 am

    From Dale Carpenter at Volokh Consirpacy. The links are interesting too.

    A pre-decision guide to a post-decision world of same-sex marriage [Washington Post]
    http://www.washingtonpost.com/news/volokh-conspir

  • 180. brandall  |  January 18, 2015 at 7:26 am

    Just saw the Ted Olson v. Tony Perkins discussion on Fox. While not quite as fiery as last October, 2014's match, this rematch has Ted firmly believing SCOTUS will rule in favor of ME and believes nothing should be read into the way in which the two SCOTUS questions were phrased.

    Perkins held to the "will of the voters," "this is different than interracial marriage" and "religious liberty is at stake." Perkins then tried to insert this will lead to a daughter marrying her father from a recent New York magazine article. Ted to Tony, "are you all of a sudden interested in something you read in New York magazine?"
    https://www.youtube.com/watch?v=0wMSCR6lYMA

  • 181. F_Young  |  January 18, 2015 at 7:55 am

    Thanks Sagesse.

    Dale Carpenter's article is excellent. It explains simply and clearly some points that have not been addressed at all by other media, and have been addressed here at EoT only in a disjointed way.

  • 182. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 8:12 am

    I'm liking the countdown clock. I think EoT should add it to the top of the page.

  • 183. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 8:14 am

    I think that was to create the pool of names so that official proposals can be made. :)

  • 184. RemC_Chicago  |  January 18, 2015 at 8:27 am

    I have nothing of any import to add to the highly involved conversation on this thread except to express my appreciation for all of your observations and comments. Reading all of this has been a bit like sitting in an audience, listening to a knowledgeable and passionate panel discuss the workings of SCOTUS. Thank you.

  • 185. ebohlman  |  January 18, 2015 at 8:31 am

    The type of injuction the Mexican Supreme Court issued is actually called an amparo (there's no close equivalent in US law except for writs of habeas corpus), which, amusingly, is also the name of one of the plaintiffs' mother's family.

    Marriage equality cases often have self-describing names: Loving v. Virginia, Love v. Beshear, and Courage v. Wyoming (state case that was never heard because the federal case mooted it).

  • 186. RemC_Chicago  |  January 18, 2015 at 8:33 am

    PS: I did enjoy David Boies' assurances of victory on the Bloomberg Report – http://www.bloomberg.com/politics/articles/2015-0

  • 187. ianbirmingham  |  January 18, 2015 at 8:47 am

    Typo in the article; it should read "Even before Windsor…". The legal justification is that Section 2 blatantly contravenes the clear purpose of FF&C as explained in Williams v North Carolina. Madison created FF&C to do away with a big problem: under the Articles of Confederation the states felt free to disregard each other's legal acts. Madison wanted to unify the states by making them uphold each other's legal acts.

  • 188. wes228  |  January 18, 2015 at 9:12 am

    There is nothing relevant in Williams v. North Carolina. The Supreme Court in that case declines to examine the scope of Congress' powers under the Full Faith and Credit Clause and they also continue in the long line of judicial thinking that *judgments* are granted much more weight under the FFC than state laws.

    In any event, this legal issue will be resolved under the 14th Amendment, making any FFC arguments purely academic.

  • 189. Raga  |  January 18, 2015 at 9:14 am

    Methinks Sutton wanted to force SCOTUS's hand sooner rather than later, as the chances of them upholding the bans only diminishes with time.

  • 190. Zack12  |  January 18, 2015 at 9:24 am

    It actually might be greater if a Republican wins in 2016.

  • 191. F_Young  |  January 18, 2015 at 9:35 am

    Schuette's futile fight against gay marriage nears end
    Editorial of the Detroit Free Press
    http://www.freep.com/story/opinion/editorials/201

  • 192. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:50 am

    I'm a bit perplexed on this one. While I tend to agree that the 5CA may move forward and issue an opinion by the panel (previously I doubted that, based on assuming pre-orals that it would be an adverse decision), there would need to be a mandate right, and don't we believe that some judge will ask for an en banc vote immediately, which in granted, vacates the decision of the three judge panel?

    I'm putting on my realist hat here and suggesting that marriage equality in the states of the 5CA will not come via a decision ft the 5CA, but via SCTOUS from a national decision on the 6CA cases of OBERGEFELL. V. HODGES, ET. AL. Now I can't say I expected ME in FL before SCOTUS ruled and that happened, so I'm more than happy to lose my prediction here.

  • 193. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:55 am

    Interesting…as I might have to agree with Zach, as if somehow the neocons could have pushed a decision to next term, maybe a Justice retires/dies and Obama has to nominate someone to get 60 votes in the Senate to confirm. Or delay until each Appeals court rules and get a new president and new court composition.

    Net/net, I think this is the best chance to get a pro-ME ruling given the court composition and unknown future of who nominates and who confirms.

  • 194. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 10:02 am

    I was actually about to pose this question… I know I've read it before, even on EoT I think, but I wanted to read about the process by which the SCofMexico rules in individual states and once it reaches a certain number, the ruling applies nationwide.

    So from what you indicate above, the threshold minus one has been ruled (how many so far, and which states), and there is pending cases in Colima and Chihuahua that if ruled for pro-ME, tips the threshold and ME would be in place nationwide.

    So it's a race between the SCOTUSofA and the SCOTUSofM to get to nationwide ME. We essentially know that USoA will be by July 3, 2015, so will the USoM get there before that or not. Canada still wins the ME prize for North America.

  • 195. Rick55845  |  January 18, 2015 at 10:23 am

    A positive ME ruling by the 3-judge panel of the 5th Circuit would still be a welcome victory, even if no mandate was issued or if it was stayed pending en banc review. Perhaps symbolic in effect, but welcome nonetheless.

    It's not difficult to predict the result of an en banc rehearing by the 5th Circuit, should they have time to complete one. But if the panel issues an ME ruling in our favor, I don't think there will be time for an en banc gutting to run full course before SCOTUS issues its decision.

  • 196. Tony MinasTirith  |  January 18, 2015 at 10:48 am

    You're absolutely right Rick. Scalia, himself, destroys the procreation reasons to ban marriage himself in his Lawrence dissent also:

    "[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry,"

    Exactly, what justification indeed! Other than moral disapprobation what justifies taking away marriage rights from homo sexual couples but not infertile and elderly couples as well..or couples who have no desire or intention to pro-create? Scalia takes the pro-creation argument out of discussion….it's not relevant, so I don't see that card being played at oral arguments this April. Scalia says over and over that barring moral disapproval, there is NO justification for denying the benefits of marriage to homosexual couples.

    Scalia then continues on in his legal thinking in Windsor, and outlines the thinking for the courts below when they start taking up cases:

    "…How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status"

    Scalia instructs the courts below "how easy it is" to reach the same conclusion of unconstitutionality on the state's mini DOMAs as the court did in ruling section 3 of DOMA unconstitutional. And in deed, many of the courts below took him up on his guidance. So though he morally disapproves of homosexual conduct (not necessarily of homosexuals), he proclaims there are no "legal" justifications from withholding marriage from Homosexuals. And this is the legal thought coming from one of the highest jurists in the land. And then remember, Alito's chief reservation was that SSM was newer than cell phones and the internet. And yet society did not ban either of those. I think judge Posner puts Alito in his place in regards to the newness and the relevance of millenia of tradition. Newness or tradition are not legal justifications that jump the bar of equal protection and due process…in my opinion. So lets ALL agree, that the ONLY justification for enjoining same gender couples from the rights of marriage is moral disapprobation [by only some groups]. And Lawrence V. Texas and the first amendment do not allow laws based on any one person or groups moral disapprobation alone.

    The two SUBSTANTIAL federal questions asked by the Federal Supreme Court are framed around the 14th amendment, or around equal protection and due process. What legal arguments then does the state have in regards to equal protection and due process to allow their discriminatory bans to stand? I think they'd be fools to argue pro-creation…but hey, if they want to waste their 75 minutes arguing pro-creation and against Scalia…so be it.

  • 197. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 11:02 am

    It would certainly isolate the 6CA and Sutton, that's for sure.

    I imagine once Justice Kennedy rules, Sutton will just say, "I told you so – I was bound by Baker and it required SCOTUS to determine there was a want for a substantial federal question and overturn itself. Hell, if anything, I helped equality along by getting SCOTUS to decide faster!"

  • 198. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 11:04 am

    Really all Kennedy needs to do is copy and paste from Scalia's dissents! Brilliant. Glad that Scalia saw the future for us as well.

  • 199. scream4ever  |  January 18, 2015 at 11:08 am

    The Florida case is fully briefed and ready for oral arguments by the 11th Circuit. We should hear any day now if they plan to postpone them or not. We also have a hearing in the Nebraska case scheduled for Jan. 29th. In addition, we are likely to see the stay lifted in Missouri, a clarification ruling in Kansas, and requests to lift the stays in South Dakota and Arkansas (how the 8th Circuit and the Supreme Court respond to them is yet to be seen). We could also see a positive ruling from the Arkansas Supreme Court, but their previous actions indicate they may be more inclined to put it on hold.

  • 200. guitaristbl  |  January 18, 2015 at 11:10 am

    Scalia is pro gay rights after all lol ! I want to see him putting the procreation argument before the attorneys for the plaintiffs during oral arguments and the attorneys be like "But judge Scalia you rejected that argument as plausible under judicial review to deny same sex couples of the right to marry in your Lawrence and Windsor dissents" !

    And the Scalia, just to spite Kennedy in favour of ME, and write a concurrence saying "see I told you, I was right" lol !

  • 201. Tony MinasTirith  |  January 18, 2015 at 11:11 am

    I completely agree Raga. I think there was purpose behind Sutton's denial. Ginsburg all but told the world that the [majority] of the Court was happy to let sleeping dogs lie, until and unless the 6th got out of line.

  • 202. Tony MinasTirith  |  January 18, 2015 at 11:19 am

    LOL! That would be great Ryan. Then we shouldn't have to wait 2-3 months for june/july ruling….we could get it 7-10 days after oral arguments. In time for a nice May wedding for me and VIRick…the first to take me up on my marriage proposal :D.

  • 203. Tony MinasTirith  |  January 18, 2015 at 11:26 am

    That would be great guitarist…but I don't see how writing a concurring opinion, even if it said I told you so, would spite Kennedy. A concurrence slapping down the 6th would actually make Scalia the wind beneath Kennedy's wings no? Though admittedly, it'd be a foul wind. Kinda like a fart……..

  • 204. ianbirmingham  |  January 18, 2015 at 11:28 am

    "In Thomas v. Washington Gas Light Co., the Supreme Court stated that “the full faith and credit area presents special problems, because the Constitution expressly delegates to Congress the authority “by general Laws … [to] prescribe the Manner in which [the States'] Acts, Records and Proceedings shall be proved, and the Effect thereof.”. . . Yet it is quite clear that Congress's power in this area is not exclusive, for this Court has given effect to the Clause beyond that required by implementing legislation. … Thus, while Congress clearly has the power to increase the measure of faith and credit that a State must accord to the laws or judgments of another State, there is at least some question whether Congress may cut back on the measure of faith and credit required by a decision of this Court.” The Court's language in Thomas makes clear that Congress has the power to require states to recognize the acts and judgments of sister states, but also suggests that the Supreme Court will question the constitutionality of any congressional attempt to pass legislation that authorizes states to ignore the acts of sister states."

    http://www.americanbar.org/content/dam/aba/admini

  • 205. VIRick  |  January 18, 2015 at 11:37 am

    Ryan, I'm always so eager, aren't I?

  • 206. Tony MinasTirith  |  January 18, 2015 at 11:38 am

    I think the Supreme Court should handle this case on the same gender marriage bans this April the same way the Vatican does when it elects a new pope. After Oral arguments, the justices should be sequestered until they come up with a decision and then announce their ruling thusly:

    Sixth Circuit Affirmed: Release Black Smoke
    Sixth Circuit Vacated: Release White Smoke!

    What do you think?

  • 207. F_Young  |  January 18, 2015 at 11:44 am

    Ryan K: "I wanted to read about the process by which the SCofMexico rules in individual states and once it reaches a certain number, the ruling applies nationwide. "

    I will let others who are much more knowledgeable than I, such as VIRick and ebohlman, answer your question, Ryan.

    All I "know" about amparo comes from the English language Wikipedia: http://en.wikipedia.org/wiki/Recognition_of_same-
    http://en.wikipedia.org/wiki/Recurso_de_amparo

    Those who can read Spanish might be able to get better information from the Spanish language Wikipedia:
    http://es.wikipedia.org/wiki/Matrimonio_entre_per
    http://es.wikipedia.org/wiki/Recurso_de_amparo

  • 208. RLFraz  |  January 18, 2015 at 11:50 am

    This shows why the way SCOTUS framed the question may actually be good for us. http://www.washingtonpost.com/news/volokh-conspir

  • 209. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 12:04 pm

    Let's all make arrangements for a trip to the Virgin Islands for the wedding!

    Rick – Get proposing and get a save-the-date out!

  • 210. VIRick  |  January 18, 2015 at 12:05 pm

    "[In 'Windsor,'] Scalia instructs the courts below 'how easy it is' to reach the same conclusion of unconstitutionality on the state's mini DOMAs …."

    That's why I so loved the Mississippi decision (in the most unlikely state of them all), when Judge Reeves took up Scalia's instructional guide from his "Windsor" dissent, his admonishing "See how easy it is," and followed it, step-by-step, all the way to its conclusion, at which point, Judge Reeves proclaimed, "That proved true," and summarily struck down Mississippi's ban.

    I went nuts that day, and played Nina Simone's signature song from the height of the Civil Rights era over and over, "Mississippi Goddamn."

    By limiting discussion to the Due Process and Equal Protection Clauses of the 14th Amendment, the Supreme Court will ultimately be following Scalia's instructions, precisely in the same manner as Judge Reeves, and will rule the same way.

    And you're correct, too, in reminding everyone that, independently, Scalia has already destroyed any possible states' defense hinged on the "pro-creation" argument. Even Scalia admits it's all about animus and moral disapproval.

    And Guitar, Scalia's dissent ought to be amusing. I have no idea how he's going to frame it. Whatever he writes, it will appear as if he were jumping up and down like a little child, shouting, "I told you so, I told you so!"

  • 211. sfbob  |  January 18, 2015 at 12:24 pm

    Carpenter is quite certain not only that we'll see a favorable decision, but WHEN that decision will be published: 10 a.m. EDT on June 29th.

    Dale Carpenter is an odd guy. He is a gay man and a law professor; he is also a right-wing libertarian. Before he began his work at Volokh Conspiracy he had a syndicated column which appeared in any number of LGBT newpapers. That column (which appears to have been discontinued) discussed LGBT rights from that perspective.

  • 212. VIRick  |  January 18, 2015 at 12:58 pm

    "In time for a nice May wedding for me and VIRick…the first to take me up on my marriage proposal :D."

    OMG! That's the quickest romance I've yet encountered in my entire life. Ever.

  • 213. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 1:01 pm

    Time to consummate the relationship. Chop, chop.

  • 214. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 1:04 pm

    Maybe he will be so annoyed that the majority opinion is his own previous dissents, that he will hand off the dissent to Alito or Thomas?

    HA, HA…not a chance. He's just going to roll around in his own shit and say, I told you so, I told you so, took you long enough to give a true ruling and an honest defeat.

  • 215. VIRick  |  January 18, 2015 at 1:13 pm

    I've already booked 1 July 2015 so we can be first-in-line in the Virgin Islands!

  • 216. VIRick  |  January 18, 2015 at 1:15 pm

    Indeed! Do we post videos of that part, too??? LOL

  • 217. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 1:31 pm

    Man, for as much as I disliked Olson for his role in Bush v. Gore and putting me through eight years of GWB, I absolutely love that man for what he has done for marriage equality and what he says in this video.

    Does anyone know if there is any history behind Olson and why he's taken such a prominent position on marriage equality these past years? I realize it could be that he just feels this is something he strongly believes in, but wasn't sure if there was any other element involved.

    Meanwhile…could the FNS "moderator" have been any more on the side of Perkins?

  • 218. brandall  |  January 18, 2015 at 1:34 pm

    http://www.advocate.com/politics/marriage-equalit

    We were really fortunate to attend a small gathering at our LGBTQ Community Center and hear both of them speak last Spring. He recounted almost the same story as posted above. He is a charming man in person.

  • 219. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 1:36 pm

    I like the concept, although you've done it with a little twist having the smoke color indicating the result versus having achieved a decision. I'm all for the white smoke as a decision (which really isn't much of a question given they will vote, hence understanding why you changed the smoke to be the answer), but then I want Justice Kennedy to walk out on the steps of the Supreme Court building (as if he's the leader of the College of Cardinals) and read the decision.

  • 220. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 1:40 pm

    Posted this to my brothers (i.e. Good friends) back in my home state of Michigan on Facebook, as they are so ready for this to be dealt with.

    Coincidentally, I saw Selma this weekend, and I can't even fathom it being like that with respect to our African-American brothers and sisters – it makes me ill to even believe it was like that only 50 years ago. I hope 50 years from now our future generations also say the same about this civil rights issue.

  • 221. Tony MinasTirith  |  January 18, 2015 at 1:50 pm

    I"m on board with that! You think he'd officiate my wedding?

  • 222. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 2:02 pm

    Thank you very much for that link!

    I knew Olson had lost his wife during 9/11 on the flight that crashed into the Pentagon, so I didn't know if that had something to do with the love of your life and wanting to let everyone have that. But sounds like this got going even before that based on the link. Nice to see he's happily remarried (and to a lifelong Democrat!).

  • 223. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 2:05 pm

    we know that the Notorious RBG officiated them! I imagine you could get a few of the Justices to officiate, not sure about Justice Kennedy. Worth a shot asking!

  • 224. VIRick  |  January 18, 2015 at 2:43 pm

    "…. Victor Fernando Urias Amparo …."

    Ebohlman, ooooh, that is good! I didn't pay attention to that point, but "Amparo" (mother's maiden name) secured an "amparo" to marry from the Supreme Court of Mexico.

    At the time, here's what I published regarding this same couple on a different website last June:

    "Late Wednesday, 25 June 2014, Mexico's Supreme Court (by granting their "amparo") allowed a same-sex couple to marry in Baja California, the state immediately south of San Diego that occupies the northern half of the Baja California peninsula. According to a news release from the court, the ruling further stated that a provision in the Baja California State Constitution limiting marriage to heterosexual couples is unconstitutional.

    "Excluding couples of the same sex goes against the right of persons to self-determination and for every individual's personality to develop freely," the statement said. "In addition, it implicitly creates a violation to the principle of equality, because it gives a different treatment to homosexual couples with respect to heterosexual couples."

    The ruling allows the marriage of a Baja California couple, Víctor Manuel Aguirre and Fernando Urías Amparo, who were denied a marriage license at Mexicali City Hall a year ago (that is, in June 2013). After a federal district court in Baja California sided with the couple, the state legislature appealed the ruling to Mexico's Supreme Court. That ruling does not (yet) overturn the state ban. Other same-sex couples who seek to marry in Baja California would have to go through similar appeals, if turned down for licenses.

    At the time, Oaxaca's ban had already been declared unconstitutional in 2013. Baja California became #2 on 25 June 2014. Since then, Campeche became #3 (25 July 2014), while Sinaloa is #4 (24 September 2014). One more such ruling is needed, with appeals from Colima and Chihuahua pending. Separately, in state court, the same state bans against same-sex marriage have been declared unconstitutional in Morelos, State of Mexico, and Nuevo León.

    In the meantime, judges all over Mexico have been granting "amparos" to same-sex couples to allow them to marry, notwithstanding state law. In fact, to save on the legal expense, couples have recently been banding together seeking and receiving "collective amparos." For example:

    On 27 June 2014, a collective amparo challenging the constitutionality of Articles 124 and 43 of the Civil Code of the State of Tamaulipas was filed in the Nineteenth Circuit Court. As a direct result, on 1 October 2014, 57 persons were granted the right to marry in Tamaulipas by federal judges in both the Third District Court, based in Nuevo Laredo, and in the Ninth District Court, based in Tampico. The state had 10 days to file an appeal (and chose not to do so). This was the first instance in which an injunction had been sought for individuals rather than couples. Should any of the single parties now wish to marry, their partners will also be covered. It was also announced by the attorneys representing those seeking injunction, that an additional 68 persons had requested a second collective injunction from Tampico. Another 80 persons interested in a collective injunction in Matamoros filed in early October 2014.

    And this:

    In August 2014, 14 women and 4 men requested a collective injunction against Articles 330 and 150 of the Baja California Sur Civil Code, which bans same-sex marriage. On 21 October 2014, the first amparo in Baja California Sur was granted, declaring articles 330 and 150 of the Civil Code unconstitutional.

    And this:

    On 16 October 2014, the Supreme Court for the state of Nuevo León declared articles 147 and 219 of the Civil Code of Nuevo León unconstitutional, and granted an injunction to 48 applicants for same-sex marriages.

  • 225. Tony MinasTirith  |  January 18, 2015 at 2:50 pm

    I'm ok with that. Or broadcasting the wedding and the consumation live. 😀

  • 226. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 3:04 pm

    Sounds like a very long and lengthy process based on this statement: "“For there to be same-sex marriage throughout the country, if there is not a reform of the civil laws of each state, we will need five rulings in each one of the states that comprise the federation [of Mexico,]” Méndez noted."

    So there would need to be five "Amparo" ruling sin EACH state in order for marriage equality to be enforced in that specific state. There appears to be no means by which the Supreme Court of Mexico can institute a nationwide ruling. Ugh.

  • 227. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 3:28 pm

    Okay so I'm a bit confused (maybe I shouldn't be watching the Packers & Seahawks NFC championship game and trying to do this)… As there seems to be two instances of "five rulings" being called out.

    We have what is posted above which seems to have a nationwide impact to it: "At the time, Oaxaca's ban had already been declared unconstitutional. Baja California became #2. Since then, Campeche became #3, while Sinaloa is #4. One more such ruling is needed, with appeals from Colima and Chihuahua pending."

    Then we have what I posted further up which seems to indicate five rulings within a state declares equality for that state, but needs done in each state in order to have national marriage equality: "Barring legislative will to change State laws, a provision in the Mexican Code allows that five rulings in a state with the same outcome on the same issue override a statute and establish the legal jurisprudence to overturn it."

    So is it that we need five rulings within a state to declare that state a marriage equality state, and then when it's overturned in five states by the Supreme Court, it's a national ruling? I haven't quite seen anything definitive on the latter.

  • 228. Wolf of Raging Fires  |  January 18, 2015 at 3:38 pm

    Ohmagoodness

  • 229. guitaristbl  |  January 18, 2015 at 3:42 pm

    Because all of this (and I dwelved into it on my own time as well) is so very confusing I will just ask one simple question : Given the current legal situation, what does the Mexican Supreme Court need to do for a ruling to apply nationwide, meaning for every mexican state to have to issue marriage licenses to all same-sex couples (since they already have to recognise marriages performed in states that allow it anyway) ? All it takes now is one more ruling for one more state for marriage equality to go nationwide in Mexico and apply to ALL couples ?

    I do understand that in each individual state five rulings from state court are needed to make the ruling definitive in that state, so is it the same on federal level ?

  • 230. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 3:44 pm

    Well that should make it an interesting ceremony for those of us attending in person!

  • 231. guitaristbl  |  January 18, 2015 at 3:46 pm

    I am just kidding of course..Scalia would prefer to have his eyeballs removed from their sockets with spoons first and his genitals cut of with a chainshaw before he votes for anything merely pro equality.

  • 232. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 3:48 pm

    Same question I posed above…agree, would like to know the same. From what I've read this far, there is no "sweeping" ruling that the SCOTUSOM can do. And I haven't found yet where if the laws are overturned in five states, that somehow tips the balance on the rest, only an intra-state five rulings declares it for that state.

    I'd love to see it definitively somewhere though!

  • 233. scream4ever  |  January 18, 2015 at 3:54 pm

    It's like what George Clooney said after Prop 8 passed:

    "At some point in our lives, gay marriage will no longer be an issue, and those who tried so hard to stop it from happening will be looked upon in the same light as George Wallace when he tried to stop students from attending college just because they were black."

  • 234. Tony MinasTirith  |  January 18, 2015 at 4:05 pm

    I'm still thinking "Blondi" is going to throw in the towel. She has nothing more to gain from losing at the 11th, and then being denied cert from SCOTUS. Even if SCOTUS were to conference her appeal, it wouldn't be until October at the earliest. By then it's all over.

    I wonder if that "activist" who pied Anita Bryant in 1977 is available for hire…
    Blondi would look good with a pied face.

  • 235. Tony MinasTirith  |  January 18, 2015 at 4:17 pm

    Well Ryan, technically he did. Had Sutton upheld the courts below, SCOTUS would not have gotten involved this term. SCOTUS would have dismissed appeals from OH, KY, TN, and MI in the same fashion they did last October. Then we'd have to wait for probably the 8th to split or maybe even a reversal by the full 5th. In the long run, it's better this way I think….simply because I'm worried about Ginburg's health and both Ginsburg and Kennedy's age. I mean both were born before world war II, not to mention before touch tone phones and TV…and the internet! And Breyer isn't exactly a spring chickadee. Ginsburg just had a heart stint implanted (didn't she?) a few weeks ago. I hope she holds out till June. And now with the republicanized congress… that just does not forebode well for National Marriage Equality. As much as I hated the loss in the 6th… it may have been the push that got us over the finish line and ensured both Kennedy and Ginsburg get to vote on this issue.

  • 236. Tony MinasTirith  |  January 18, 2015 at 4:26 pm

    The 5th dilly dallied for almost a year after judgment in the court below. I suspect they could (and do) whatever they please. If the 4th can postpone for a snow day…I'm sure the 5th could have come up with reasons to postpone if they really wanted to….judicially speaking.

  • 237. Tony MinasTirith  |  January 18, 2015 at 4:33 pm

    Still hoping Blondi will throw in the towel.
    Arkansas – I'm not holding my breath for good news from them…wouldn't be surprised if they order a re-hearing.

    While I believe the 5th will issue it's ruling…I suspect many of the other proceedings will be put on ice… especially if they're going to be anti-equality rulings.

  • 238. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 4:35 pm

    Wholeheartedly agree 100% in that I am glad that the case is in front of SCOTUS now versus the slow circuit roll that was occurring (as exciting as that was from a legal standpoint). Your points are all valid in regard to the composition of the court (health of pro-ME Justices), getting another Justice through the "consent" of the now GOP-controlled US Senate, and unknown of the next presidential election (I'm not in the boat that it is just Hillary's election to lose).

    So while technically yes, he did us that favor (if you concur with what I said above), and if he had left it at Baker and stopped, I could respect that more. But then going on after that and ruling on the merits of the case (which basically is animus given he stated just before that the 6CA or any Circuit Court does not have the power to rule on this), right there he loses any respect on furthering the rights of the citizens of this country. He, along with the judge in LA, the 9CA asshole, and the other circuit judges that dissented in pro-ME rulings can kiss my ass (figuratively – I wouldn't give them the time of day or pleasure literally).

  • 239. Tony MinasTirith  |  January 18, 2015 at 4:42 pm

    Ohhhh nooooo, we're already behind Canada, Spain, England, Wales, France, Uruguay, Brazil, Netherlands, Denmark, Iceland, Luxembourg, Norway, Portugal, South Africa and I don't know who else….Noooooo, we don't need to be behind Mexico too.

  • 240. Tony MinasTirith  |  January 18, 2015 at 4:46 pm

    Mexico is toooo confusing for me. But then so again is football. Give me Derrick Hough ballroom dancing..THAT I can follow.

  • 241. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 4:58 pm

    Mexico marriage equality and court system, I give you that. You give me 3 hours in front of a TV with one NFL football game, I'll have you well informed on football. I grew up with a Dad that played HS and college, born in Pittsburgh during their Super Bowl era in the late 70s, and officiated games. You'll have every signal down before you know it!

  • 242. Tony MinasTirith  |  January 18, 2015 at 5:03 pm

    Scalia may be so overboiled while writing his dissent that he has a heart attack and keels over…or chokes on his own Argle-Bargle.

    I nominate Kamila Harris to replace him!

    A positive ruling on ME this term could kill 2 birds with one stone…ending the invidious and discriminatory bans…and giving Scalia a stroke as he pens his dissent.

    Question…can Obama also nominate Kamila to be Chief Justice…or does there have to be an opening before a president can nominate and appoint a new Chief Justice? As far as I know, the Constitution does not speak to this.

  • 243. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 5:05 pm

    That's something that I'be always been amused by, the United Kingdom of Great Britian and Northern Ireland. Of which Britian is itself an island and collection of thee countries: England, Wales, and Scotland. So each are independent and sovereign countries, whereby Britian is just the three countries of the island, and somehow the UK is also a country? How can a country consist of other countries?

  • 244. Tony MinasTirith  |  January 18, 2015 at 5:18 pm

    Exactly…just like you can't make a Xtian Bookstore sell satan figurines and satanic bibles….and vice versa…you can't make a Santanic Bookstore sell Pat Robertson bobble heads. It's like these people haven't even reached 5th grade (no disparage meant to 4th graders). They can't force a business owner into speech that they don't want to do or to sell products or services that aren't part of their business inventory. And no, taking a picture is not making a speech and neither is mixing eggs, water, vanilla, flour and sugar..

  • 245. rwingfield  |  January 18, 2015 at 5:31 pm

    One could write a book trying to answer those questions – it really is incredibly complicated and owes more to history than to logic.

    England, Scotland, Wales and Northern Ireland are all countries (or nations) but none is independent or sovereign. Only the United Kingdom is sovereign and independent (so it is the UK, and not England and the others, that has a seat at the UN and is a member of the EU). However, within the UK, there is a Scottish Parliament, a Welsh Assembly and a Northern Irish Assembly, all of which have power to make legislation in certain devolved areas (the precise powers vary for each of the three, however, and there is no devolution in England).

    Great Britain is purely a geographical term describing the island comprising England, Scotland and Wales. Within the UK, there is no distinction between Great Britain and Northern Ireland except when talking about geography. The state was the Kingdom of Great Britain from 1707 to 1803 when it became the United Kingdom of Great Britain and Ireland. Then, in 1922, when part of Ireland became independent, it became the United Kingdom of Great Britain and Northern Ireland, so the name just reflects history and not the constitutional structure.

    Only in one are do the four countries/nations act like independent countries and that's in some (but not all) sports. So in football, rugby and cricket, for example, there are separate national teams for each of the four countries. However for others (like at the Olympics), we compete as a single nation (confusingly called Great Britain, even though it includes Northern Ireland).

    Confusing? Just a little!

  • 246. scream4ever  |  January 18, 2015 at 5:33 pm

    I'm still hoping they release it on the 25th for Pride weekend. They can save the 29th for the Obamacare ruling.

  • 247. Tony MinasTirith  |  January 18, 2015 at 5:35 pm

    They're all part of Her Majesty's Realm. That is why there is no Disney Land or Disney World in England…because if there were, the Magic Kingdom would HAVE to be part of her Majesty's Realm. And the powers that be at Disney will simply not allow that.

    Just sayin…

  • 248. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 5:40 pm

    I still love everything about the place… History, the Realm, royalty, parliament, and all that. Honestly if I was to leave the US, my first choice would be London (as long as I had a place in the Caribbean to vacation).

    I think the sports part thre me the most, how can they have England in the World Cup, but also other countries within the UK also compete. I didn't relaize for the Olympics it was all one under the UK. Probably most confusing is that they are all called countries. The four of them need a different name than country, if that is the UK.

  • 249. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 5:44 pm

    That's going to be depressing if they gut the ACA. Deference to Congress is needed!

    Given thie oral arguments will be at the VERY end of April, unless Kennedy has pre-written this thing along with Scalia having his dissent ready, I still believe this ruling will come out the week of 6/29-7/3. Just in time for P-Town weekend in Mass!

  • 250. Tony MinasTirith  |  January 18, 2015 at 5:51 pm

    I'm sure Kennedy has a rough draft in place. They've had since June 2013 to think about all of this…I don't know why they need 2 more months to release the opinion. Their clerks will already have all the legal argle-bargle ready to put in place. Drama Queens is what they are.

    The 7th circuit released their opinion in 9 days… just sayin'.

    Since this is such a matter of National importance, that is why I say we sequester them until they make their decision and announce it by releasing white smoke if they're vacating the 6th, and black smoke if they're upholding the 6th. And only feed 'em spam sammichs and water until they get it done. We'll have an opinion out in 72 hours.

  • 251. F_Young  |  January 18, 2015 at 6:04 pm

    A question on the question of gay marriage
    http://www.washingtonpost.com/politics/courts_law

  • 252. VIRick  |  January 18, 2015 at 6:08 pm

    Ryan, it appears that Baja California, already well over-the-limit on the number of amparos granted in that state, is no longer waiting, now that the crisis in Mexicali has been resolved:

    "On 13 November 2014, the Supreme Court of Mexico (for a second time) ruled that Baja California's constitutional ban on same-sex marriage was unconstitutional. Because the state legislature had made no efforts since 2011 to reform the civil code to comply, a complaint was filed with the Citizens Commission on Human Rights (CCDH) on 27 November 2014. On 14 January 2015, Raúl Ramírez Baena, director of the CCDH, filed a petition with the governor and five municipal officers of the state requiring them to provide notification to the registrars throughout the jurisdiction on how to proceed with same-sex marriages in compliance with the Mexican constitution.

    In the interval, officials in Tijuana announced that they were willing to comply with an amparo and offer premarital counseling to LGBT couples. Officials in Ensenada have also stated that they would honor an injunction and noted that though one was approved there, the couple did not ask for a ceremony."

    Thus, Baja California appears to be the first state in Mexico to have overturned the state ban on same-sex marriage through the amparo process, as the existing provisions in their Civil Code have now been held in abeyance.

    Many other states in Mexico, particularly in the northern part of the country, are also well over-the-limit, including Sinaloa, Chihuahua, Nuevo Leon, and Tamaulipas, as is Yucatan. However, with a codified system of law, it has been the very devil to push the state legislators to change the civil code to be in compliance with court orders.

    So, expect this legal maneuver in Baja California by the CCDH to be emulated in these other states quite soon, and that the entire northern tier of Mexico will quickly be re-colored dark blue.

    Ooooh, plus, I see new cases have reached Mexico's Supreme Court from both Durango and Jalisco states.

  • 253. Tony MinasTirith  |  January 18, 2015 at 6:14 pm

    Rainbow Fireworks!!!
    Only with the jaws of life could Brian be extracted from the closet.

    Still think it will be suicide by hamburger…and Reces peanut butter cups.

  • 254. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 6:39 pm

    Now I'm hungry for either. Well it would be a cheeseburger.

  • 255. scream4ever  |  January 18, 2015 at 6:53 pm

    I'm hoping Bondi doesn't throw in the towel just so the 11th circuit will be pushed to hear it and the likely unfavorable Georgia ruling will not need to be handed down.

    We could always request for the stay to be lifted in Arkansas, but I'm not sure how receptive the 8th Circuit would be to such action, although maybe the Supreme Court would lift it and the other remaining stays…

  • 256. VIRick  |  January 18, 2015 at 6:55 pm

    Ryan, I have always thought that the same "Rule of 5" applies to both, federal and intra-state. However, now that I've gone digging around trying to find something to back me up (on the federal point), I'm unable to produce anything whatsoever.

    In any case, at the federal level, with 4 states down (Oaxaca, Baja California, Campeche, and Sinaloa) and 4 more pending (Colima and Chihuahua, plus the new cases from Durango and Jalisco), we'll soon find out.

  • 257. F_Young  |  January 18, 2015 at 6:59 pm

    Many thanks for the update on Mexico, VIRick. That information is hard to find.

    So, it looks like it will be a mainly court-based state-by-state process, but quite rapid for a judicial process (since a number of states have passed or are reaching the five case tipping point), much like in the US in 2013 and 2014.

    However, marriage equality is unlikely to be nation-wide in Mexico in 2015.

    Do you have any information about what the cases from Durango and Jalisco are about, and what impact they would have if successful?

  • 258. VIRick  |  January 18, 2015 at 7:00 pm

    Tony, we're going to have Scalia marry us,– and that's that. I insist.

  • 259. VIRick  |  January 18, 2015 at 7:13 pm

    You mean, "the power of suggestion" might prove to be totally overwhelming???

    I am somewhat of an exhibitionist, so if you can manage to handle it, and want to watch the entire proceedings to make certain that everything is done properly and completely, right down to the last detail, that's fine with me. It also sounds as if Tony has no objections, either.

  • 260. flyerguy77  |  January 18, 2015 at 7:23 pm

    TO FEED his ass I meant 7 kids?

  • 261. VIRick  |  January 18, 2015 at 7:28 pm

    "…. he pens …."

    My mind must be totally overwhelmed and distracted with all sorts of extraneous thoughts, like wedding bells and assorted rituals and ceremonies. On first reading, I mis-took that for "his penis."

    I mean, in addition, Guitar did just volunteer to cut off his genitals with a chain-saw only a few posts higher up.

  • 262. Tony MinasTirith  |  January 18, 2015 at 7:40 pm

    Nope. No objections.
    Who's got a GoPro?

  • 263. Tony MinasTirith  |  January 18, 2015 at 7:46 pm

    If the 11th would issue a ruling and a mandate B4 Oral Arguments at SCOTUS, I'm all for it. I have my doubts that they'd issue b4 SCOTUS rules though. I'd love to see all the bans in the 5th and 11th shot down by April.

  • 264. Tony MinasTirith  |  January 18, 2015 at 7:48 pm

    I'll make you a Green Chile Cheese Burger with authentic Hatch Green Chile.

  • 265. Tony MinasTirith  |  January 18, 2015 at 7:54 pm

    Well ok. Then I insist that we have a hyphenated last name and that he says at the end… I now pronounce you Husbands for life!

    Oh and since it has to be Scalia, I insist on a two carat tension set solitaire white diamond engagement ring. D color VSI2 😀 I'll settle for an F Color VSI1 if it's Sotomayor 😛

    It's all about negotiation folks!

  • 266. VIRick  |  January 18, 2015 at 8:15 pm

    Durango:

    13 November 2014, 18 people filed an injunction (amparo) in Durango against the state's civil code defining marriage as only the union between a man and a woman, and thus are directly challenging its definition. On 28 November 2014, the State Congress (legislature) and Government (executive) rejected the injunction, stating that challenges to the Civil Code had to be made within 30 days of their being enacted, and thus they were 66 years too late. Upon that rejection, in December 2014, the 18 activists then escalated the injunction request to the Supreme Court of the Nation. This is the second time that injunction requests from Durango have gone before Mexico's Supreme Court, but the first to be a direct challenge to the restricting wording of the code itself.

    Jalisco:

    In January 2014, a male couple went to the Civil Registry in Guadalajara and were denied a marriage license based on Article 258 of the State Civil Code, which limits marriage to one man and one woman. They then filed for an injunction in the Fourth District Court. On 8 January 2015, because the municipal government of Guadalajara challenged the right to the granting of this injunction, the case was then appealed to the Supreme Court of the Nation.

    Both cases come from obfuscating "traditional" states, and thus, both jurisdictions are practically begging for their state constitutional bans to be declared unconstitutional.

    In the other two cases before Mexico's Supreme Court, Colima has actually changed its state code in an effort to comply. It remains to be seen whether those changes will be deemed sufficient. Chihuahua is in the process of changing its code (by adopting the exact language already present in Coahuila, thus legalizing marriage between same-sex couples). It remains to be seen whether they will complete the process quickly enough. However, I am suspecting that Mexico's Supreme Court is quietly biding its time to allow them sufficient leeway to complete the task.

    But Durango and Jalisco? Both will be getting a major slap-down, first Durango, then Jalisco.

  • 267. Zack12  |  January 18, 2015 at 8:28 pm

    I'm not holding my breath on Arkanas.
    Their Supreme Court has done everything they can to delay equality there.
    As for the 11th circuit, it would be nice to see them rule but I don't think it will happen before SCOTUS weighs in.

  • 268. scream4ever  |  January 18, 2015 at 8:31 pm

    If they hear Brener by the end of February it's quite likely for them to issue a ruling by the last week in April.

  • 269. VIRick  |  January 18, 2015 at 8:53 pm

    "What can you do in 30 minutes?"

    Now there's a coy request!!

  • 270. VIRick  |  January 18, 2015 at 9:43 pm

    "Who's got a GoPro?"

    So, that's all we need then to complete the preparations.

    "GoPro, Inc, an American corporation that develops, manufactures and markets high-definition personal cameras, often used in extreme-action video photography."

    Oh wait! I suggest we practice for the big day!

  • 271. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:47 pm

    Does "somewhat of an exhibitionist" mean you dabble in voyeurism as well as exhibitionism?

    [Side note: Are we going to get banned from EoT for overly provocative and sexual posts? If so, I'm invoking both Lawrence v. Texas and my 1st Amendment rights.]

  • 272. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:48 pm

    You (and I) would mistake his pen for penis.

  • 273. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:50 pm

    I believe there needs to be a vacany in the CJ position to nominate someone. If Scalia is off the court, one isn't able to nominate a CJ and thereby move Roberts into as associate justice slot. I'd love it if the president could!

  • 274. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:55 pm

    Well I can accomplish a lot in 30 minutes, especially if there is a lot of action going on in the field (that was just for Rick).

    Being a diehard Steeelrs fan, I dispise the Crybabies and would never EVER try to illicit something positive from you about them. Sorry you had to suffer through that team.

  • 275. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:56 pm

    Appreciate the research in trying. It's not the first I've heard of that at the federal level, so I will continue the search as well.

  • 276. Ryan K (a.k.a. KELL)  |  January 18, 2015 at 9:58 pm

    I don't even know what to do with that last part! Rick?

  • 277. scream4ever  |  January 18, 2015 at 9:59 pm

    Either way it would likely happen as they are deliberating the case, which the justices would take notice of.

  • 278. VIRick  |  January 18, 2015 at 10:04 pm

    To help round out the list, add in Argentina, New Zealand, Belgium, Sweden, and Scotland. Ireland (with a May referendum) will also probably beat a nation-wide ruling in the USA. Finland has already passed the required legislation, but has yet to implement it.

  • 279. VIRick  |  January 18, 2015 at 10:07 pm

    "(as long as I had a place in the Caribbean to vacation)."

    Very cute. Very coy. Very real if you want it to be.

  • 280. Tony MinasTirith  |  January 18, 2015 at 10:24 pm

    I know that's how it has been handled historically … but my question is that mere custom.. or is that the law of the land? It seems improper to me to get the job of the highest jurist in the land (For Life!) just because you happened to be in the right place at the right time. Properly the Chief Justice Should serve a two year term and be chosen by vote of his or her SCOTUS colleagues… as is done with several states highest courts.

  • 281. VIRick  |  January 18, 2015 at 10:27 pm

    "…. does there have to be an opening before a president can nominate and appoint a new Chief Justice?"

    Roberts would either have to retire or die before the president would have the opportunity to appoint a new Chief Justice.

  • 282. Tony MinasTirith  |  January 18, 2015 at 10:29 pm

    Well ok, if you're sure they'll rule b4 the Supremes, Blondi may continue her appeal. She can prove she's a natural blond.

  • 283. brandall  |  January 18, 2015 at 10:32 pm

    What are the chances of 2 EoT'ers both winning the lottery and living out their fantasies in the Virgin Islands? You are very fortunate. Keep buying those tickets Ryan!

  • 284. Tony MinasTirith  |  January 18, 2015 at 10:48 pm

    Sitting and watching chunky men in tight spandex chase a ball and run around a pasture is not my first choice of spending four hours on a couch. I can think of something a little more active I'd rather be doing for four hours… on a couch. But that's just me.

  • 285. Tony MinasTirith  |  January 18, 2015 at 10:51 pm

    Aren't there any Mexicans on EoT that can give us some definitive answers?

  • 286. VIRick  |  January 18, 2015 at 11:04 pm

    I don't know what to do with it either. The last time I got "married," we did so by excitedly exchanging matching "Superman" rings (a fittingly cute double-entendre which the other guy dreamed up) in the parking lot of a Jacksonville Beach pawn shop.

    Apparently, Tony's shooting for something much more high-class (and much more expensive) than that. Quite honestly, I was planning to buy another "Superman" ring for the super-hero of my life.

  • 287. VIRick  |  January 18, 2015 at 11:26 pm

    "Keep buying those tickets Ryan!"

    Yes, indeed! Brandall, too.

  • 288. brandall  |  January 18, 2015 at 11:34 pm

    LMAO, I will call tomorrow.

  • 289. brandall  |  January 18, 2015 at 11:37 pm

    It's late and I have not read all of the details of this thread.

    That said, if you will respond with succinct questions, I will ask one of my BFF's for answers. We went to Jr. and high school. He is 1/2 Mexican, his father was and L.A. County Judge, he is my attorney and he splits his time between Hollywood and Acapulco.

  • 290. DrBriCA  |  January 18, 2015 at 11:54 pm

    Where do I apply? I've been to the VI and found them to be quite beautiful!

  • 291. Tony MinasTirith  |  January 18, 2015 at 11:55 pm

    We know that the Mexican Supreme Court does not have the same power as the US Supreme Court, to strike down laws as unconstitutional across the board and across the country en mass with one ruling, so:

    1) What judicial proceedings/actions are required or available to the court for a Nationwide strike down of anti Same Sex Marriage laws in Mexico… if any.

    2) If the right to SSM is going to be granted by Mexican Supreme Court action, must the Mexican Supreme court make a ruling in each and every state one by one, or is there a path that the Supreme court may take to strike down all anti same sex marriage laws at once?

    3) Is there any consensus among legal analysts that foresee Nationwide Marriage Equality coming to Mexico within the next 24 months? If so, what is the most likely means to that end?

    There seems to be some idea floating around here that after 5 rulings in favor of same sex marriage, either in a state court or by the Supreme court that then all anti gay marriage laws across Mexico will become inoperable. Perhaps your BFF could comment on that.

    Thanks!

  • 292. RnL2008  |  January 19, 2015 at 12:20 am

    I read this article earlier and the Bakery handled it in my opinion in a professional manner. This guy was obviously trying to get the staff to get in an altercation, but the Staff and the customers in the shop during the various times this jackazz kept coming back all clearly stated that the Manager of the Bakery handled it in a professional manner……they didn't refuse the man service, they had NO problem making the cake that he picked out and they offered him the bag to write what he wanted on it and the tips……..the man was TRYING to get the Bakery to deny him service so that he could show folks how intolerant the pro-gay folks are and it BACKFIRED on him………unlike the baker who invoked his religious beliefs and refused to make the wedding cake…….it's funny how the anti-gay folks will try ANYTHING and when it DOESN'T work the way they want it to….it just makes them look STUPID and Stupid SHOULD hurt!!!

  • 293. RnL2008  |  January 19, 2015 at 12:22 am

    Sorry Bob, I'd like the ruling closer to my birthday…….but I'll take it anytime in June…….lol!!!

  • 294. RnL2008  |  January 19, 2015 at 12:29 am

    I'd have to agree with Ted………I've been hearing that red herring for about 5 years now……oh if we allow Gays and Lesbians to marry, we'll open up the door to brother marry sister, mother marry son, father marry daughter, brother marry brother and so on and so forth……or next it will be the dog, cat, goat and again so on and so forth……..these idiots need to be head hard…..STUPID should hurt….but hate filled people like Tony Perkins and the rest of the anti-gay group just DON'T understand about this thing called CONSENT!!!

    Oh and then we have the idiots who believe polygamy is the next issue….YET, no polygamist group is really looking to legally marry….all they were looking for was to get the Cohabitation laws tossed……..and unless a polygamist group file the proper lawsuit challenging Reynolds vs The United States…….polygamy will more than likely NEVER get legalized just because the folks who can bring the right lawsuit MUST have standing and be able to get some relief by the outcome……and besides that, I'm happy with my wife……I couldn't handle more than one and she is that one:-)

  • 295. Tony MinasTirith  |  January 19, 2015 at 12:30 am

    Wouldn't that be SCoM…not SCOTUSOM (Presumably SCOTUSOM is: Supreme Court of the United States Of Mexico – not a thing)?

  • 296. Tony MinasTirith  |  January 19, 2015 at 12:56 am

    Apparently.

    Dress: White Tie
    Wedding Planner: Martha Stewart
    Cake Baker & Decorator: Buddy "the Cake Boss" Valastro
    Engagement Ring: 2 carat white diamond set in 14K gold tension set ring
    Champagne: Don Peringone circa 1976
    Music: live quartet
    Invitations: On Jacquard Embossed Stationary, Linen Finish with inner Glassine envelopes
    Flowers: Red (Mr. Lincoln) Roses, White (Honor) Roses, baby's breath
    Wedding Cake: White Vanilla 4 tier all with Italian butter cream frosting (Red roses in between each tier), silk red ribbon around each layer
    Cake Topper: The one with the one groom helping the other groom up onto the top layer.
    First Dance: At Last – Etta James
    Procession Music; I Do, I Do, I Do, I Do, I Do – Abba (a la Muriel's wedding)
    Reception Menu: RibEye steak or North Atlantic Sword Fish. Cilantro is BANNED from the menu or anywhere on the premisis
    Officiant: Male prefferably, Kennedy…or otherwise the notorious RGB 😀
    Shoes: Patent Leather
    Color Scheme: Blush and Bashful (No just kidding!): Jet, Burgundy, and Snow White

    …I've had some time to think about this.

  • 297. ebohlman  |  January 19, 2015 at 1:24 am

    Reception Menu: RibEye steak or North Atlantic Sword Fish. Cilantro is BANNED from the menu or anywhere on the premisis

    What a pity you've got the wrong allele for saponin receptors; you can't enjoy one of the most wonderful tastes in the world.

  • 298. ebohlman  |  January 19, 2015 at 1:35 am

    Ireland won't immediately gain marriage equality once the referendum passes; laws and codes will have to be changed and that process, though its outcome will be guaranteed, could easily last into next year. So they'll be roughly where Finland is now.

  • 299. Tony MinasTirith  |  January 19, 2015 at 1:44 am

    …most wonderful tastes in the world, noxious vile weed…Either way, it's banned banned BANNED within a 3 square mile radius of the nuptials. Does this mean a NO on the RSVP?

  • 300. ebohlman  |  January 19, 2015 at 1:55 am

    He and his fellow activists seem determined to resurrect the old Cold War boundaries that dissolved 25 years ago.

  • 301. ebohlman  |  January 19, 2015 at 2:00 am

    If they announce that Friday, June 12th will be a supplemental day for releasing opinions, we'll know that we won.

  • 302. Wolf of Raging Fires  |  January 19, 2015 at 3:56 am

    I mean, I agree with the writer's analysis, but I don't see how it relates to how SCOTUS framed their questions. Maybe you could clarify it for me.

  • 303. Wolf of Raging Fires  |  January 19, 2015 at 3:58 am

    CILANTRO IS THE DEVIL. I wish the plant would go extinct and anything containing it rots and burns to the ground!

    Ahem.

  • 304. DACiowan  |  January 19, 2015 at 5:20 am

    As someone fascinated by British royalty, I'm looking forward to September, when Elizabeth will pass Victoria. The palace even has an estimate of the time: 5:30 PM British time on September 9.
    http://www.macleans.ca/society/palace-calculation

  • 305. Raga  |  January 19, 2015 at 5:23 am

    I cannot recall seeing this article when the Sixth Circuit decision came out, but it is an excellent discourse on the two ways of framing the rational basis question – the inclusion framework and the exclusion framework, with persuasive legal authority for why the exclusion framework is the one that should be adopted here. Which is why the Sixth Circuit was wrong, because it decided that there is a rational basis for the state to extend marriage to opposite-sex couples – an inclusion framework, thereby providing a right answer to the wrong question.

    http://www.washingtonpost.com/news/volokh-conspir

    Why oh why has no lawyer so far has ever made this argument in their briefs or oral argument? I hope the SCOTUS briefs from our side spend at least a couple of pages cementing this logic (should the Court ultimately resolve this on rational basis)! Please!

  • 306. Jaesun100  |  January 19, 2015 at 5:42 am

    These are some gems ….things I noticed: The message hasn't changed its always the same things we say today over 40 years ago. The media also wasn't as friendly as it is today and always used homosexual. I noticed on the signs they all say gay rights. I do notice a shift today to marriage equality. I think anti people back then turned gay rights as if it was special rights. I am glad our message chaged from rights to equality. another thing in the 80s video only 400 cases of HIV if only that could have been prevented. I think that set the movement back as they blamed it on GLBT . Then we focused our time on getting studies done to prove it wasn't a Gay disease…and that took time . It has been a bumpy ride and I am hoping for a great ending from two iconic decades .
    1970 http://youtu.be/x0lGI9gBxzk

    1980 http://youtu.be/O51uPDv7V2o
    ..

  • 307. Rick55845  |  January 19, 2015 at 5:53 am

    I read that article yesterday, and I thought it was illuminating as well.

    Would you consider the two 14th amendment questions, as rephrased by SCOTUS for these four cases from the 6th CA, to use the inclusion or exclusion framework?

    It seems to me that the four cases themselves all framed the question using the exclusion framework (bans deny fundamental right, states withhold recognition of valid marriages), while SCOTUS applied the inclusion framework (does 14th amendment require states to marry same-sex couples, does 14th amendment require states to recognize valid marriages between persons of the same sex).

  • 308. Concern_troll  |  January 19, 2015 at 5:54 am

    1)Does the Fourteenth Amendment require a state to license a
    marriage between two people of the same sex?
    2) Does the Fourteenth Amendment require a state to recognize a marriage
    between two people of the same sex when their marriage was
    lawfully licensed and performed out-of-state?

    These are both exclusionary questions. They have to answer why they are allowed to be excluded.
    From the link, "does it rationally advance a legitimate state interest to exclude same-sex couples from marriage while conferring marriage on opposite-sex couples who are identically situated to same-sex couples with respect to that very interest?… (Is it rational to) exclude same-sex couples given the state’s legitimate procreation interest and its decision to include opposite-sex couples who cannot procreate.

    Consider that we have three kinds of couples who might qualify for marriage: (1) fertile opposite-sex couples, (2) infertile opposite-sex couples, and (3) infertile same-sex couples. If the state’s interest in marriage is channeling procreation in a responsible way, it would make sense to draw the line between the first and second groups. But once the second group is admitted, what sense does it make to draw the line between the second and third groups, who are identically positioned with respect to the state’s interest in procreation?"

  • 309. rwingfield  |  January 19, 2015 at 5:55 am

    Well, we invented quite a lot of those sports! So, for football and rugby, for example,, the nations within the UK (England, Scotland, Wales and Northern Ireland) were playing against each other before the rest of the world joined in. So having four national teams stuck.

    Within the UK, we tend to refer to them as nations or "constituent countries" so as to avoid confusion. Denmark, the Netherlands and New Zealand are other "countries" which are, in fact, made up of a number of countries.

  • 310. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 6:00 am

    If I used SCoM, then I'd then use SCoA for the USA. As the official name of Mexico is the United States of Mexico, I just expanded our locally recognized SCOTUS term to be more specific.

    But alas that is incorrect, as I should have looked it up first. The name of Mexico's highest cour is the Supreme Court of the Justice of the Nation.

    Edited: And further, I guess Mexico's official name is United Mexican States, so even my attempt was inaccurate. It would have been the SCOTUMS.

  • 311. rwingfield  |  January 19, 2015 at 6:01 am

    It might be quicker than that. The government is also drafting the "enacting" legislation (as it's referred to) so that if the proposed constitutional amendments are approved, the legislation can be quickly passed by the Oireachtas. I would suspect that this would all be done within a matter of months, perhaps by the end of the year.

  • 312. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 6:03 am

    I like the "nations" twist on it. Simple and succinct.

  • 313. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 6:18 am

    The linemen are more bear-like yes, but there are some rather sculpted bodies out there that are not hard on the eyes in the least. Not that would be the reason to watch of course.

    And no reason to not multi-task on the couch. I've done it many times.

  • 314. MichaelGrabow  |  January 19, 2015 at 6:22 am

    That map is on state recognition, it should be dark blue for MO.

  • 315. wes228  |  January 19, 2015 at 6:29 am

    This is pure speculation. The parties in this case will certainly NOT be presenting briefs addressing that question.

  • 316. Wolf of Raging Fires  |  January 19, 2015 at 6:33 am

    I have a huge crush on Aaron Rodgers…just sayin'

  • 317. Wolf of Raging Fires  |  January 19, 2015 at 6:36 am

    That's a regurgitation of what the article says, not an answer to my question.

  • 318. F_Young  |  January 19, 2015 at 6:39 am

    Thanks for drafting the 4 questions, Tony.

    If I may, I would also add this question: does Mexico's national legislature have the power to implement marriage equality nationwide when not all states recognize same-sex marriages?

  • 319. F_Young  |  January 19, 2015 at 6:56 am

    Rick55845: ''Would you consider the two 14th amendment questions, as rephrased by SCOTUS for these four cases from the 6th CA, to use the inclusion or exclusion framework? "

    I think that SCOTUS framed the questions under an inclusion framework, which is incorrect, and biases the outcome. This concerns me. Our side has to turn the discussion around to whether the states can exclude same-sex marriages once they license opposite-sex marriages, including infertile couples.

  • 320. Rick55845  |  January 19, 2015 at 7:24 am

    Thank you. That is how I see it too, and it is what I've been concerned about since we first saw the reformulated questions. But perhaps my vision is clouded, and I'm just not seeing how plaintiff's lawyers will be able to respond without being slapped down for turning the questions back around again.

  • 321. Sagesse  |  January 19, 2015 at 7:29 am

    Check out the comments. A commenter lists all 14 citations on the rights to marry, which I have never seen enumerated in one place before, then says this:

    The freedom to marry the consenting adult of your choice is hardly imposing your values on somebody else. That's just freedom.

    Telling somebody they don't have the freedom to marry the consenting adult of their choice is taking away their freedom. THAT is imposing your values on them.

    The government can restrict freedoms if, and only if, it can demonstrate a compelling interest in doing so.

    The First Amendment means "Because the Bible says it's icky" is not a compelling interest. Centuries of case law, and the Constitution generally, means "Because I say it's icky" is also not a compelling interest.

    The government can claim no compelling interest in protecting families and/or children since:
    1) There are no laws criminalizing out-of-wedlock childbirths.
    2) There are no laws requiring a man and a woman to marry if she becomes pregnant.
    3) There are no laws banning divorce if the couple have children under 18.
    4) There are no laws requiring applicants for a marriage license to undergo fertility testing and submit proof of fertility with their application.
    5) There are no laws requiring applicants for a marriage license to attest to their intent to procreate.
    6) There are no laws requiring the annulment of a marriage if a child is not produced by some date after the issuance of the marriage license (e.g., 2 years).
    7) Studies from non-biased sources (i.e., an organization not explicitly opposed to marriage equality) show that children raised by same-sex couples are just as likely to grow up and become productive members of society as children raised by opposite-sex couples.

    Apologies, but I have no idea what the proper notation is to footnote and credit a comment :).

  • 322. F_Young  |  January 19, 2015 at 7:32 am

    Concern_troll: "These are both exclusionary questions. They have to answer why they are allowed to be excluded."

    I disagree. I think both questions are about whether states must include same-sex marriages, which is an inclusive framework. It is the wrong framework, and it is biased against marriage equality.

    This concerns me. Our advocates will need to argue that once a state licenses opposite-sex marriages,including infertile couples,it cannot exclude same-sex marriages.

  • 323. Rick55845  |  January 19, 2015 at 7:37 am

    Like F_Young, I also see these questions as representing an inclusion framework. SCOTUS asks whether the 14th amendment requires including same-sex couples in marriage. Concern_troll, can you explain in what sense you see these as exclusionary?

    I still have a bit of a problem with question #1, no matter how it is phrased, since I don't see any constitutional requirement for states to license marriage at all.

  • 324. ebohlman  |  January 19, 2015 at 7:50 am

    The two of you know, don't you, that your genetics literally determines what cilantro tastes like to you? It's not a matter of some people liking the taste and others hating it; it's a matter of it tasting completely different to different people (if you've got the wrong form of saponin receptor, it really does taste like soap; that's how saponins got their name).

  • 325. Wolf of Raging Fires  |  January 19, 2015 at 7:54 am

    Damn the science! Cilantro is objectively evil!

  • 326. Concern_troll  |  January 19, 2015 at 8:08 am

    If you answer no, the state is not required to issue a license to same-sex couples, you have to explain why they can be excluded. "Because responsible procreation." Well, then, why can infertile couples marry? And the answer to that has to be reasonable and connected to why the line is drawn between them and infertile str8 couples. Anything about raising children in best households goes down the drain as gay couples do have children either biological or adopted. And the 2nd question is even harder to answer with a justifiable reason. "Tradition" and "Morals" won't cut it.

    Rick55845, if states don't have to issue marriage licenses, do you realize how many ticked off residents the state will have? Most states don't allow for common-law marriages, and the federal government requires you to be married based on the state you live in for many of its benefits, including SS and VA.

  • 327. Rick55845  |  January 19, 2015 at 8:21 am

    Thank you, Concern_troll. I understand your reply. But by the same token, if you answer "yes" to question 1 (which presumably the plaintiff's will assert), do you not have to argue why same-sex couples must be included?

    Yes, I understand that the citizens of no state would be happy or well served if the state did not license marriage. I still don't see a constitutional requirement for it. But if the norm were for marriage to be evidenced by a private contract (which I'm sure the states would not like since they could not so easily regulate it), a government could accept that as well as a civil license. I'm not advocating for that, just remarking.

  • 328. Randolph_Finder  |  January 19, 2015 at 8:39 am

    May not be entirely genetic. See http://www.nature.com/news/soapy-taste-of-coriand… Only 80% of identical twins share the same opinion on Cilantro (as opposed to 50% of fraternal twins).

    OTOH, the research at http://chemse.oxfordjournals.org/content/37/9/869 indicates a tie to three genes (TRPA1, GNAT3, and TAS2R50).

    On the bright side, I haven't seen any billboards claiming that it isn't genetic. :)

  • 329. sfbob  |  January 19, 2015 at 9:01 am

    Might I recommend (if you have not read it already) Nancy Cott's book "Public Vows: A History of Marriage and the Nation?" Cott was one of the expert witnesses who testified on the pro-equality side at the Prop 8 trial (and I believe also at the DeBoer trial as well).

    According to Cott, even though it was nowhere stated in the Constitution, views about marriage as a means of managing the population were very strong with the Founding Fathers. At the time the nation was founded however, because the population was small and relatively dispersed it wasn't that easy for couples to obtain marriage licenses and common-law marriage was more the rule than the exception except among the wealthy who usually had think about providing for the orderly and uncontested distribution of assets among heirs.

    As marriage became increasingly important in establishing qualification for federal benefits (Social Security survivor benefits in particular), most states did away with common-law marriages in favor of licensing and registration so that qualifications for benefits could be determined more easily. There's more to it than that of course but the explanations Cott provides are quite illuminating.

  • 330. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:17 am

    Pretty sure we'll ONLY have briefed and arguments regarding the 14th amendment. :)

  • 331. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:20 am

    Never know… our best friends (just married in FL on 1/6/15) and my husband and I were just discussing where to celebrate one of our 40th birthdays (three of us turn 40 this year, with last one having turned in 2014 which we celebrated in Asheville, NC). Coincidently the US-VI came up as a suggestion! Be on the look-out in late March maybe!

  • 332. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:21 am

    It's been difficult enough to have a Disneyland Paris in Europe (formerly the Euro Disney which didn't fly so well). Given how close I am to Disney, I'd concur on your powers that be not allowing that!

  • 333. Raga  |  January 19, 2015 at 9:25 am

    I second F_Young – the Sixth Circuit framed the question in a very similar way, whether the constitution requires that marriage be extended to include same-sex couples. If this falls to rational basis review, I'm worried that the rephrasing is a disadvantage. I too hope and pray our attorneys will pay attention to this and spend a few pages / minutes in their briefs / oral argument to make it perfectly clear what the framework for rational basis should be before going into the merits.

  • 334. Tony MinasTirith  |  January 19, 2015 at 9:28 am

    I have a huge crush on Derrick Hough… and normally brunettes are my type. Derrick moves like the wind through my mind…

  • 335. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:29 am

    Aaron is a great guy… your typically midwestern boy (works well in Green Bay no doubt). While not a 1st string star QB, I still think Brady Quinn does one helluva job!

    For anyone interested in seeing a random selection of the NFL's best… http://www.thedatereport.com/dating/photos/the-25

  • 336. 1grod  |  January 19, 2015 at 9:31 am

    Rick & F: When asked yesterday about the wording on the questions Ted Olsen said on Fox News "He would not put too much weight on that".
    As you observed, Minnesota Law School Civil Rights prof D. Carpenter does put weight on wording. Using an inclusion/exclusion paradigm, he said that the Court has most often used exclusion as the frame for its rational-basis analysis citing:- Eisenstadt v. Baird; Moore v. City of East Cleveland; Cleburne v. Cleburne Living Center; Romer v. Evans; Lawrence v. Texas; United States v. Windsor. "On an inclusion framing, each of the laws at stake in these cases could have been regarded as rationally serving a legitimate interest by including one group within legal protection that served the state’s interest." For clarity purposes, using an exclusion framing, how might the Court's questions be reframed?

  • 337. Rick55845  |  January 19, 2015 at 9:38 am

    That's Bob. That looks interesting. I'll check it out and read it.

  • 338. Tony MinasTirith  |  January 19, 2015 at 9:40 am

    It's my understanding that the Mexican Supreme Court has ruled that SSM marriages performed in Mexico City must be recognized through out the nation. It would also defy logic and Stare Decicis to say otherwise when another jurisdiction like Oxaca or Baja license SSM. Once you're legally married in Mexico, you are legally married through out the country. But now I wonder if Mexico recognizes legally performed marriages from abroad? Hmmmm… If I married here in NEW Mexico (to a man), is my marriage recognized throughout Mexico?
    Stay Tuned…

  • 339. Sagesse  |  January 19, 2015 at 9:43 am

    From Lisa Keen at Keen News. More on the question of the questions.

    The nagging question looming over the Supreme Court’s announcement on the Sixth Circuit marriage case appeals [Keen News]
    http://www.keennewsservice.com/2015/01/19/the-nag

  • 340. davepCA  |  January 19, 2015 at 9:43 am

    Aw. That sounds like an affectionate nickname for the Supreme Court, doesn't it? SCOTUMS. Hee hee. Or maybe an affectionate nickname for…um.. something else.

  • 341. Tony MinasTirith  |  January 19, 2015 at 9:43 am

    Well now I think you're just daring the censors.

  • 342. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:46 am

    Technicality, since I believe you mean "not all states celebrate marriage of same-sex couples" as the country of Mexico currently recognizes all marriages regardless of opposite or same-sex couples.

    From the reading I have done, the Mexican National Legislature has no power or authority to pass any law that would require the 31 Mexican states to require them to allow for marriage of same-sex couples (in the same manner that the U.S. Congress could not enforce a law requiring the remaining 16 states to do so). The only national means in the US is a SCOTUS ruling on the US Constitution or a constitutional amendment to the US Constitution; whereas in Mexico it seems state-by-state is the only approach known (not sure if amending their federal constitution is an option), as there is no federal legislative way.

  • 343. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:49 am

    That would be a shit-ton of argle-bargle in officiating that! Maybe if we can whisk him off to the US-VI, he won't want to (or we won't let him) come back to Washington, D.C., and we'll have a vacancy in the SCOTUS! BRILLIANT!

  • 344. guitaristbl  |  January 19, 2015 at 10:02 am

    I have read so many things these days, so many contradicting opinions and I can't make up my mind yet : Is the way the court framed the questions to be answered beneficial to us or not ? At first reading it would seem that the questions posed by the plaintiffs at their petitions had their focus more on the rights of same sex couples. The questions the court wants to answer have their focus more on states rights. And who decided on how the questions will be framed after all ?
    Is it all about making it a case about states rights and thus answering no to both questions or seeking a compromise to say no to the first question and yes to the second, or leaving the first question unanswered for now and answering yes to the 2nd one ?
    I know all these have been discussed above as well but I just wanted to put my thoughts down. In my opinion the way the questions were framed is not the most favourable for the plaintiffs. It may be a way for Roberts to seek a "recognition only" compromise or it may be a trick wording to raise some "Schuette" reflexes to Kennedy.
    All in all I would prefer the wordings offered by the plaintiffs, one of those variations anyway…

  • 345. davepCA  |  January 19, 2015 at 10:13 am

    This is fascinating!

  • 346. SoCal_Dave  |  January 19, 2015 at 10:18 am

    I had the same concerns yesterday too, Rick. EoT-ers helped convince me not to worry and I tried to be positive, but after sleeping on it, I can't seem to shake this concern. If there was no reason for it, why did they bother turning the questions around?

  • 347. Raga  |  January 19, 2015 at 10:25 am

    An exclusion framing would use the opposite language, e.g., "under the Fourteenth Amendment, can states deny marriage licenses to same-sex couples?"

  • 348. bythesea66  |  January 19, 2015 at 10:26 am

    Well, there is little point fretting for 6 months, so how about you can panic when there are oral arguments for a few days and then panic when they haven't released the ruling yet in June, but otherwise in the time between just be calmly confident. Does that work? 😛

  • 349. Raga  |  January 19, 2015 at 10:26 am

    We can be very confident that Scalia will not find a constitutional right to same-sex marriage. The only outstanding question is how much spittle the court’s staff will have to clean up if Scalia decides to read his dissenting opinion from the bench.

    http://theweek.com/articles/534342/supreme-court-

  • 350. guitaristbl  |  January 19, 2015 at 10:29 am

    Before I read the article I want to make an observation on the part you quote above the link :

    "We can be very confident that Scalia will not find a constitutional right to same-sex marriage."

    Neither Scalia nor any other judge is asked to find such a right. They asked to affirm the fundumental right to marry, as SCOTUS has done before.

    As for the article, it's a pretty practical and realistic analysis on the matter and I will stick to the last paragraph :

    "Overall, advocates of same-sex marriage rights have good reason to be optimistic. But as fans of the Green Bay Packers will tell you, it’s unwise to celebrate prematurely."

    Let's be cautiously optimistic, not arrogant.

    I do wonder what's going to be the reaction if the court splits the baby. Everyone will have something to "celebrate" probably, but more the anti-LGBT crowd.

  • 351. guitaristbl  |  January 19, 2015 at 10:38 am

    It's true there's nothing we can do right now but speculations and analyses are over the internet so you can't really help it. Oral arguments could clear things a little bit indeed, but nothing can be said till the decision is issued.

  • 352. Tony MinasTirith  |  January 19, 2015 at 10:38 am

    The biogenetics of the taste to some people is irrelevant. Why is it "right" to enjoy the taste of soap… Though tasting like soap would be a huge step up from the vile nasty disgusting taste that it is. The biology of it is completely irrelevant, and the only thing that is relevant is that it is banned from my house, my events, and my life… and probably Wolf's too. Wolf is right, the plant should become extinct from this earth. I wouldn't care if the cause of my taste receptors to hate cilantro was caused by a witch from the netherworld. I would rather eat something flavored with Onions and cabbage and raw pork tripe buried in Emmitt Smiths's used gym socks for six months under a lake, than eat anything with that vile foul noxious disgusting weed. I'd rather starve to death. To live a cilantro free life is a "liberty interest" protected by the Due Process and Equal Protection clauses of the 5th and 14th amendments to the U.S. constitution. If you like eating soap, so be it, but Ill never be convinced that it's right. I'd be convinced that Sutton and Brian Brown are on the right side of history b4 I would be convinced that cilantro is an herb, right or wrong delicious or otherwise. and yeah…

    <a href="http://www.Ihatecilantro.com” target=”_blank”>www.Ihatecilantro.com – Join the fight! Spread the word in any way you can. Lets make this a cilantro free world!

  • 353. F_Young  |  January 19, 2015 at 10:39 am

    And, now, on a completely unrelated topic…

    Ireland Gets Cook Moment as Future PM Tip Says He’s Gay
    Ireland’s health minister, tipped as a future prime minister, came out as the first openly gay cabinet member in a Catholic country that until the 1990s banned homosexuality.
    http://www.bloomberg.com/news/2015-01-19/ireland-

  • 354. guitaristbl  |  January 19, 2015 at 10:43 am

    AFA calles for Ginsburg and Kagan to recuse because they have officiated marriage ceremonies for same sex couples :
    http://www.pinknews.co.uk/2015/01/19/us-anti-gay-

    I demand all justices to recuse themselves because they have openly declared their religious beliefs and all the dogmas they follow are against marriage equality then.

  • 355. robbyinflorida  |  January 19, 2015 at 10:48 am

    On Fox News Sunday Ted Olson said he wouldn't place much weight on how it was worded.

  • 356. guitaristbl  |  January 19, 2015 at 10:55 am

    I do trust Ted Olson but why change the wording from the one (with small variations) the plaintiffs provided in their petitions ?

    Anyway I do hope he is at the very least consulted by the legal teams that handle the 6th circ. cases.

  • 357. Raga  |  January 19, 2015 at 10:58 am

    "Neither Scalia nor any other judge is asked to find such a right. They asked to affirm the fundumental right to marry, as SCOTUS has done before."

    Yes, that's was they were asked to do, but that's not the question they took on for themselves. Hence, Scalia is certain to construe the right in question as a new right to same-sex marriage and decline to locate it within the constitution (directly or indirectly). That's what the first part of the quote is getting at, I think.

    Besides, I decided to quote it for the spittle joke :)

  • 358. guitaristbl  |  January 19, 2015 at 11:28 am

    And that's why I am saying this wording is not good news. Who says that only Scalia (or Thomas or Alito or Roberts) will read it that way ?

  • 359. RnL2008  |  January 19, 2015 at 11:48 am

    I agree with ya, no need to stress out over how the wording is or was……..and I still believe that SCOTUS rules in our favor on both questions…..to do anything else would certainly create a legal chaotic mess and more lawsuits would be filed and it would eventually end up on the laps of SCOTUS yet again……..and that's another reason I believe they will rule in our favor and get this issue done.

    There may also be a slim chance that the Justices could read the briefs and possibly skip actual oral arguments, but I'm not a lawyer and therefore that's my purely speculation and nothing more.

  • 360. guitaristbl  |  January 19, 2015 at 11:57 am

    A very interesting and thoughtful article from Tom Goldstein :
    http://www.scotusblog.com/2015/01/lawyers-as-hero

    Most pivotal part imo :

    "The Supreme Court decided Windsor nineteen months ago. That has been a lifetime in terms of how a wide swath of American society looks at the question of same-sex marriage. Support for marriage equality has grown substantially over the past several years, and the pace has only increased recently. It has been unlike any other social movement in my lifetime, and unlike few if any in the nation’s history.

    But that nineteen months is just the blink of an eye for the Supreme Court. As an institution, the Court is built on precedent – the idea that things stay the same. The Justices themselves tend to be older. They don’t follow social media. They don’t pivot with fast social change. To them, the country today seems very much like the country five years ago, when the Proposition 8 suit was filed. Whatever the Justices thought of same-sex marriage then – i.e., that it was not within the mainstream of society’s views – will be a lot like what they think of it today.

    And my impression is that the Justices have been asking for more time before confronting this issue. They may have wanted the time for themselves. Or they may have wanted it to give more conservative parts of the country time to adapt. Or both."

    And in the end :

    "We will never know confidently what effect the attorneys’ strategy had on the outcome. If they prevail in invalidating same-sex marriage bans, we will know that they brought their clients a massive victory more quickly. If they fail, we won’t be able to say the result necessarily would have been different if they had been more patient.

    But for this question, the handwriting is on the wall. Whether now or instead in one or two decades, the Supreme Court is going to hold that same-sex marriage bans are unconstitutional. Most of our society will have concluded that these statutes represent raw hostility and fear. The Court will not be left behind. For those who hope to see that ruling, hopefully the Justices haven’t been asked the question too soon."

    Food for thought on the timing and pressure on SCOTUS to decide.

  • 361. guitaristbl  |  January 19, 2015 at 12:00 pm

    P.S. If the court in June does not rule the way we all want and I am right to think cautiously and be prepared for the next day, all those downvoting my comments will you come back to upvote them for being pragmatic and not hysteric in terms of optimism ? Just saying..

  • 362. VIRick  |  January 19, 2015 at 12:07 pm

    Ryan, and I'm invoking both "Lawrence v. Texas" and the 5th Amendment (the part about self-incrimination).

  • 363. scream4ever  |  January 19, 2015 at 12:17 pm

    Every possible clue given indicates that it will be a favorable ruling. Rachel Maddow addressed the concerns head on and the woman from NPR does an excellent job at refuting them:
    http://touch.towleroad.com/home/2015-01-rachel-ma

  • 364. Tony MinasTirith  |  January 19, 2015 at 12:27 pm

    As I said in previous posts, I did not like the wording of these questions the moment I saw them. I had also said that the reason the announcement of a grant of cert had taken so long was because the court was having trouble (along political lines) on agreeing on the question(s) they will answer. And I think that was the case. I think that these questions were a compromise from the progressive wing to get the issue before the court this term and not delayed till next term or some future term. I suspect that these questions were worded by Roberts and Scalia (maybe Alito too) to attempt to torpedo a reversal of the sixth. They knew that the 14th doesn't "require" the states to marry or recognize marriage between anyone… tricky tricky. To get out of conference and get to the merits this term, the progressive wing signed off on the questions, because they do frame and limit the arguments to Equal Protection and Due Process. So, while the 14th doesn't require the states to marry, the majority will find that "two people" of the same sex (or "Homo-Sexuals" as the minority would refer to us)" are full US Citizens (as are their children – their families), and are fully vested in the protections of Equal Protection and Due Process that the 14th amendment guarantees to all US Citizens. The conservative wing wants to make Kennedy bend over backwards to grant a right to "same sex" marriage. They have set him up….will he fall in their trap…or will he maneuver it with the skill and grace he has in him? Ginsburg and Kagan agreed to the wording because, though it's not ideal, it still limits discussion to equal protection and due process. Notice they also carefully avoided the word "homosexual" and they carefully included the phrase "two-people" to eliminate a question of polygamy. It's a narrow bridge that can be used to get over the "does the 14th amendment require a state to license (or recognize) marriage between "two" people of the same sex. In it's dissents, the conservative wing will cling to the "states are required" phrase like a dryer sheet to a wool blanket. The progressive wing knows, that is not the operative here. The key is does the government have any legitimate interest in withholding substantive due process and equal protection from a subset of the population and if so, then by what legitimate reason. Surely not procreation! Since the elderly and infertile are allowed to marry. (Continued in next post)

  • 365. Tony MinasTirith  |  January 19, 2015 at 12:28 pm

    Continued…

    By narrowing discussion to due process and equal protection, which themselves are concerned with fundamental rights and liberty interests, it would follow that it's a given that marriage IS a fundamental right and a liberty interest thus protected by the constitution. In order to take a way that fundamental right the government must have a compelling or even rational basis for doing so. And because that liberty interest is only taken away from one specific group and not the entire population, heightened or at least searching scrutiny is justified. There can be no doubt that the group affected by the laws in question is a suspect group. The group (gays and lesbians, aka homosexuals) meets some if not all the prongs of the test, and there is no requirement that all prongs must be entirely or perfectly met. The quasi suspect class of sex is also invoked here. A man may be married to a woman, but a man is forbidden from marrying a man. Unjustified sex discrimination. The law has no interest in the sex of marriage participants. The states justification in this is that the law is designed to foster pro-creation and the status quo. There is no rational nexus on how denying ONLY same sex partners a right furthers that objective. It's the same as saying we give carrots to induce couples to pro-create and stay together and we deny carrots to same sex couples to induce different-sex couples to pro-create and responsibly raise children. If we give carrots to same sex couples, this will incite chaos by virtue that different sex couples will commence pro-creating willy nilly and irresponsibly and walk away from raising their children. The knowledge that same gender couples also have carrots induces madness in opposite gender couples, it Is the states [unfounded] contention. In reality the states bans were erected in panic and in moral disapproval and distaste of same gender marriage. The justifications now put forth to disallow same gender marriage have been reversed engineered in attempt to withstand judicial relief. This is a form of animus which Windsor does not allow. In the balance, as Judge Posner would review, the harms to same sex couples and their children far out weigh the complete lack of harm same sex marriage has on opposite gender marriage. As, Judge Hinkle of Florida noted, Same Sex Marriage is NOT a zero sum concept. Kennedy will hopefully not take Robert's and Scalia's bate and instead finish what he started with Romer, and continued with Lawrence and Windsor. A law imposed by a majority on a minority, but that it does not impose on itself is on it's face un just, and there fore does not meet constitutional muster. When the state chooses to legislate it must do so equally to all it's citizens. Kennedy, Ginsburg, Kagan, Sotomayor and Breyer know this. The others till believe that a state should be able to legislate the majority's likes and dislikes. Kennedy also knows that a no vote will undo marriage equality even in California, by allowing another Prop 8 to be enacted. Justice and Liberty will be crushed if the liberty of marriage is once again withdrawn from We the People.

  • 366. RnL2008  |  January 19, 2015 at 12:29 pm

    I HONESTLY don't see how SCOTUS could give us an unfavorable ruling ESPECIALLY seeing as they have removed the word "SAME-SEX" in front of the word marriage……..that shows they understand that this is NOT a new right, but wanting to be included in the current right, which is considered a FUNDAMENTAL right that the State infringed upon by putting in a specific gender requirement. That and that alone is all that is being ruled UNCONSTITUTIONAL……nothing else is being infringed upon on the States to define marriage.

  • 367. VIRick  |  January 19, 2015 at 12:29 pm

    OMG, it looks as if the lottery jackpot just got cranked up another notch, didn't it?

  • 368. davepCA  |  January 19, 2015 at 12:31 pm

    "And my impression is that the Justices have been asking for more time before confronting this issue. " ….. Not sure how the author arrives at that impression. SCOTUS isn't in any position to 'ask' anyone for more time, they determine for themselves when and if they will address a question of constitutional law by granting or denying cert. And if they wanted more time, they simply would have denied cert until some time in the future. The fact that they granted cert makes it pretty clear they are ready to address this issue now.

  • 369. VIRick  |  January 19, 2015 at 12:36 pm

    Oooooh nooooo, Ryan. I won't be here. I'm flying up to the States on 10 March, and won't be returning until the very end of May (during which time, among other things, I ought to be able to be in DC for the oral arguments phase of the marriage cases presently before the Supreme Court).

    On the other hand, all of February and those first few days in March would work perfectly because I'll be here until then.

  • 370. davepCA  |  January 19, 2015 at 12:38 pm

    ….. so if I understand you correctly, it sounds like maybe you don't like cilantro? : )

  • 371. brandall  |  January 19, 2015 at 12:42 pm

    I want Scalia to recuse himself under the U.S. Constitution, Article VIII – Section 2 – The pompous a** clause which protects the citizens from pontificating judges with narrow minded viewpoints.

  • 372. 1grod  |  January 19, 2015 at 12:44 pm

    Dave: Does Michael Dorf's observation:( http://www.dorfonlaw.org/2015/01/cert-granted-in-… ) offer reassurance:- "It seems to me that the Court rephrased in such a way as to make clear that in addressing both questions, lawyers are free to (and expected to) address both equal protection and substantive due process issues." ? G

  • 373. guitaristbl  |  January 19, 2015 at 12:55 pm

    Denied cert when they are presented with a clear circuit split ? I don't think that anyone believes that SCOTUS would 't love to postpone this for as long as possible if they had the luxury to do so.

  • 374. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 12:59 pm

    How in the hell did I miss this thread against cilantro?

    To each their own (that applies to food, drink, and sexual positions). I am more interested in this cake topper position. Do we have to audition?

  • 375. ebohlman  |  January 19, 2015 at 1:03 pm

    The point is that to people like me, it doesn't taste like soap. NOT "it tastes like soap, but I like the taste of soap". It tastes wonderful to me, and the taste sensations that I consider wonderful are completely different from the ones you'd experience if you ate cilantro, sensations that I completely agree would be unpleasant to anybody.

    Although I'm not being all too serious in this thread and I'm sure you two aren't either, your arguments resemble those of some straight men who can't imagine anybody not experiencing the same disgust that they do at the idea of two men screwing or, worse, kissing.

  • 376. VIRick  |  January 19, 2015 at 1:06 pm

    "If I married here in NEW Mexico (to a man), is my marriage recognized throughout Mexico?"

    Tony, the answer to this is a definite yes. Couples from Chihuahua, in particular, have been doing exactly that, ever since SSM became legal in New Mexico.

    Ditto for couples from Baja California getting married in California.

    Any/all legal marriages performed abroad are recognized as valid marriages throughout all of Mexico (as are those performed within Mexico in the Federal District, Coahuila, and Quintana Roo). Furthermore, nationwide recognition of ALL legally-performed marriages came about though rulings from the Supreme Court of Mexico. Unfortunately, I wasn't paying attention when this occurred, but it was tied together with forcing the various states to recognize ALL legally-performed marriages for purposes of federal IMSS benefits (Mexico's equivalent to Social Security), as well as forcing them to recognize ALL legal marriages performed in the Federal District (Mexico City).

  • 377. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 1:10 pm

    I'm going to have to push for the pre-St. Patrick's Day weekend instead of the post!

  • 378. Zack12  |  January 19, 2015 at 1:12 pm

    Either that or they could have kicked it back to the 6th asking them to take another look at it.

  • 379. Tony MinasTirith  |  January 19, 2015 at 1:15 pm

    Stop watchin the damn Packers and put attention.

    .,, the fate of a cilantro Free World is at stake.

  • 380. davepCA  |  January 19, 2015 at 1:19 pm

    The info about cilantro 'tasting like soap' to those who don't like it is interesting to me, since it doesn't taste like that at all to my taste buds. To me, it tastes like a slightly spicy herbal plant leaf, maybe a combination of a slightly spicy licorice flavor and a slightly spicy mint leaf flavor. To me, there's nothing soapy about the flavor at all.

  • 381. Tony MinasTirith  |  January 19, 2015 at 1:20 pm

    Not too seriously. I'm only "serious" about marriage equality. Though I do not know why. I've never met a gay man into getting married. But then again, I've been diagnosed with terminus singluitus.

    But the point is… the POINT is….the POINT IS…we rational and reasonable people can agree to disagree, and not start pulling out guns and IEDs to kill each other.
    ~ Je Suis Charlie.

    And cilantro still is icky. Not even the dog likes it 😀

    And for the record, you're still invited to my wedding if an when I ever have one. Just note, there will be cilantro sniffing dogs at all entrances and exits. All contraband cilantro will be confiscated and disposed of at the Carlsbad WIPP site (Carlsbad Waste Isolation Pilot Plant)

  • 382. F_Young  |  January 19, 2015 at 1:37 pm

    Article: "When the three judges of the Sixth Circuit ruled, the challengers’ lawyers declined to ask the full court of appeals to reconsider the cases. They also declined to take the full time available to seek Supreme Court review. Instead, they filed their petitions very quickly, on a schedule that would require the Justices to decide the merits of the cases this Term."

    The author speculates that the lawyers for the plaintiffs rushed the process so as to end the continuing harm to their clients as quickly as possible, and wonders whether that was a wise strategy because SCOTUS really wants more time.

    The author fails to mention the plaintiff's principal concern, namely that they would lose the case, now and for many years in the future, if a single Justice who supported marriage equality passed away or resigned for health reasons, which could plausibly happen between July and October 2015.

  • 383. ebohlman  |  January 19, 2015 at 1:40 pm

    That only happens when an appellate decision relies on recently-overturned precedent or flagrantly ignores established precedent. If the 6CA had ruled that states didn't have to recognize marriages of same-sex couples because many states used to criminalize gay sex, or that marriage in general was a privilege rather than a right, then the SCOTUS would probably have GVR'd. But nothing like that happened here.

  • 384. robbyinflorida  |  January 19, 2015 at 1:48 pm

    I may be wrong, but didn't SCOTUS deny a stay petition for Idaho before it went en banc?

  • 385. scream4ever  |  January 19, 2015 at 1:51 pm

    Just because the bill says that it doesn't at all mean that is actually the case.

  • 386. scream4ever  |  January 19, 2015 at 2:02 pm

    An banc panels don't have the power to issue stays.

  • 387. F_Young  |  January 19, 2015 at 2:06 pm

    scream4ever: "An banc panels don't have the power to issue stays. "

    Thanks. I did not know that. I assume the three-judge 5th circuit panel could issue a stay of its own decision.

  • 388. scream4ever  |  January 19, 2015 at 2:09 pm

    They could, but every indication so far is that they won't.

  • 389. VIRick  |  January 19, 2015 at 2:12 pm

    We also need to notice the CNDH (Commision Nacional de Derechos Humanos), a federal enforcement agency charged with overseeing compliance with the Mexican Constitution.

    Baja California seems to have just entered this next phase, probably provoked by the intransigence of local authorities in Mexicali. The "Federales" have arrived, in the guise of the CNDH, and are there to oversee the enforcement of the Supreme Court's ruling.

    Mexico's Federal Constitution explicitly prohibits discrimination based on "orientacion sexual," the Supreme Court has determined that certain provisions of Baja California's Civil Code are unconstitutional because of discrimination based on "orientacion sexual," and the CNDH, following the debacle in Mexicali, is now actively requiring state-wide compliance.

  • 390. brandall  |  January 19, 2015 at 2:18 pm

    True, until the state goes to enforce the rule(s) in the law. Then we need a plaintiff and attorney's to challenge the rules in the law in a lawsuit. To Rose's point, more legal battles after ME is won if any of these crazy bills became law. Most won't, but a few will get through in those states with supermajorities in their Legislature.

  • 391. 1grod  |  January 19, 2015 at 2:20 pm

    Tony: Thank you for a thoughtful effort: A law imposed by a majority on a minority, but one that does not impose it on itself is on it's face unjust, and therefore does not meet constitutional muster. "When the state chooses to legislate it must do so equally for all its citizens." You characterize the agreed upon questions as providing only a 'narrow bridge'. What you neglected to mention is since last January, its a bridge members of this Court have travers many times. IMO with greater ease. Consider the refusal to grant the stay that the STATE of Florida requested, before the 11th Appeals Court ruled on its merits. It is indicative to me that a majority of the "Supremes" are comfortable reaching a State Is Required outcome. Tony please tackle the second question. You express yourself well. G

  • 392. SoCal_Dave  |  January 19, 2015 at 2:37 pm

    Thanks for this, 1grod, it's good to see. There are some other voices out there with a different take, and I still have concerns, but I like Mr. Dorf's thinking, it's encouraging.

  • 393. VIRick  |  January 19, 2015 at 2:37 pm

    "…. United States Of Mexico …."

    Tony, actually the correct official name for Mexico is "Estados Unidos Mexicanos," which translates to United Mexican States, but United States of Mexico is not incorrect. There's also "Estados Unidos do Brasil," meaning there are, in fact, 3 countries in the world named "United States."

    However, like davepCA, I could go on and on about SCOTUMS.

  • 394. 1grod  |  January 19, 2015 at 2:47 pm

    bl: Have you forgotten the contortions that Justice Kennedy went through regarding States' right to reach his answer – mindful of constitutional guarantees. He concludes "This opinion and its holding are confined to those lawful marriages." In the previous paragraph, Kennedy [for the majority] wrote:"It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper." G

  • 395. Sagesse  |  January 19, 2015 at 2:47 pm

    There is one 'fact' at play here that won't be mentioned in any legal argument. There are four appeals court rulings and multiple district court rulings in favour of ME; there is one appeals court ruling against. How would this case unfold if the split was one ruling in favour and one against? Time after time, lawyers made their best arguments, and essentially the same arguments, in defence of the marriage bans… and lost. If those arguments were compelling, surely a few more judges would have bought their reasoning.

    The reason there is ME in 36 states is because three circuit decisions granting ME made it to the Supreme Court before there was the 6th Circuit opposed. In fact there were four, because the 9th reached the same conclusion in Perry, before that ruling was vacated on standing grounds, before reaching the same conclusion again in October.

  • 396. DrBriCA  |  January 19, 2015 at 3:34 pm

    You are correct. SCOTUS first denied Alaska's request for a stay of their district level federal ruling, and then it denied Idaho's request for a stay of the circuit ruling a couple days later. It was a fun one-two punch to the "gay=stay" of most of 2014.

  • 397. scream4ever  |  January 19, 2015 at 3:40 pm

    Probably just for clarification purposes.

  • 398. RnL2008  |  January 19, 2015 at 3:55 pm

    Interesting response…..so, what EXACTLY do you think Texas means by this bill? I'd love to hear your thoughts!!

  • 399. scream4ever  |  January 19, 2015 at 4:03 pm

    True, but they are likely to be stayed from being enforced.

  • 400. VIRick  |  January 19, 2015 at 4:44 pm

    Plus, even after the split, with the 6th Circuit decision going in the opposite direction, by refusing to extend the stay in the Florida case, both the 11th Circuit Court and the Supreme Court were signalling that the District Court judge in Florida had issued the correctly-aligned ruling, and that they had no objection in seeing it implemented. Either court could have quite easily extended the stay, had they felt otherwise.

    So, it's not a zero-sum game. The 4th, 7th, 9th, and 10th have all struck down the bans, and by inference, so has the 11th. So, if you will, it's 5-to-1 in our favor, with the number of states now having marriage equality accelerating from 19 to 36 as a direct result.

  • 401. VIRick  |  January 19, 2015 at 5:06 pm

    Ryan, that still won't work. At the very latest, you'd have to shoot for the split/month weekend (28 Feb-1 March) through to the first full weekend in March (7-8 March), as I'm flying out on the 10th, a full week before St. Patrick's Day.

    Like you told me (in a slightly different context): Chop, chop.

  • 402. F_Young  |  January 19, 2015 at 5:29 pm

    Thanks for the information, Rick. It's very much appreciated.

    It's good to hear that things are moving along pretty well in Mexico. It could reverberate in Central America and possibly even the Caribbean.

  • 403. Raga  |  January 19, 2015 at 5:44 pm

    One could look to Windsor. Kennedy all but proposed his undying love to States' rights ("unquestioned authority of the States", "State granted couples a status and dignity of immense import", "a class the State seeks to protect", "equal dignity conferred by the States in the exercise of their sovereign power", and many more). All these phrases seem to indicate that he would put States' rights above all, deeming that even the equal protection that same-sex couples enjoy in some states (which he ultimately based his opinion on) was only a result of the State choosing to present them with it. All that talk of harm to the children, dignity, etc. was a result of the federal government's intrusion into the State's authority, it would seem. There is no dignity for same-sex couples and their children in the first place if the State hadn't "conferred" that upon them. He clearly places the States on a pedestal.

    On the other hand, he does acknowledge that the States' authority is not "unquestioned" after all as he soaringly claimed, but subject to constitutional guarantees and he could have cited any number of cases dealing with age restrictions, closeness of blood relatedness, etc. (I assume such cases exist), but of all of them he chose to cite Loving. He also proclaimed, "The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import," which at first glance seems like just another compliment to the State. But notice he concedes, in no uncertain terms, that what the State conferred upon the couples is "the right to marry". People cite Glucksberg, Loving, Turner, Zablocki, etc. to support their claim that it is the right to marry and not right to same-sex marriage. But nobody – to the best of my knowledge – has looked at this one sentence in Windsor itself where Kennedy concedes (not once but twice) that it is indeed the right to marry (that the right came to the couples only because the State gave it to them is another matter) that the federal government sought to "frustrate". He says "the right to marry" and not "this right to marry" or "a right to marry". And the one unambiguous right to marry is fundamental, which means that it is not for the States to choose to whom they might bestow/confer that upon. It is a right that belongs to each and every individual, not collectively to the State in some limited quantity that needs to be carefully rationed to advance some state interest.

    Windsor reads to me much like it was written by Gollum/Smeagol in that it has this double-persona of States rights and gay rights, sometimes self-contradicting (e.g., the "unquestioned" comment above). I hope Kennedy sides with good Smeagol this time around.

    On a side note, the Court, in Windsor, "in granting certiorari on the question of the constitutionality of §3 of DOMA, requested argument on two additional questions: whether the United States’ agreement with Windsor’s legal position precludes further review and whether BLAG has standing to appeal the case." These were new questions added by the Court, perhaps the handiwork of Chief Justice Roberts, not requested by the parties, and if answered in the affirmative, we wouldn't have today's Windsor. But these hurdles didn't prevent Kennedy from going ahead and striking down DOMA. Similarly, I don't think the wording of the questions the Court has chosen for itself will be any serious impediment for us here.

  • 404. Tony MinasTirith  |  January 19, 2015 at 5:57 pm

    so… It's not a thing.

  • 405. DrBriCA  |  January 19, 2015 at 6:28 pm

    How do we private message each other on here for marriage proposals? 😉

  • 406. Tony MinasTirith  |  January 19, 2015 at 6:31 pm

    I'm just an innocent bystander in all this. U2 better get yourself lawyers.

  • 407. weshlovrcm  |  January 19, 2015 at 6:37 pm

    So those who demand the special right to impose their "religious beliefs," i.e., religious tyranny, on everyone else are bullying and intimidating other Americans who exercised their freedom of speech and sincerely held religious beliefs. Hypocrisy anyone?

  • 408. wes228  |  January 19, 2015 at 6:45 pm

    Nonsense, of course. Ginsburg and Kagan are federal judges in D.C. and under D.C. law may officiate as weddings. They may very well believe that, as a matter of policy, same-sex marriage ought to be legalized. But this is not a statement on their views as to whether or not the Constitution requires it (unlike Scalia who has repeatedly stated where he stands on the issue).

  • 409. VIRick  |  January 19, 2015 at 7:15 pm

    DrBriCA, look at my profile. Then, let me know when you have checked it out.

  • 410. Tony MinasTirith  |  January 19, 2015 at 7:18 pm

    Actually, I didn't neglect to mention the volume of pro marriage equality decisions. There was no need to. Everyone here on EoT is aware of the landslide of pro ME cases that actually started in DEC 2013 with Judge Shelby in Utah. The Supreme Court justices are also well aware of the volume of Pro ME cases. Half went to them to review stays. Presumably each justice either believes those decisions are correct or incorrect. Those who believe the decision was incorrect are not going to be swayed by the volume of incorrectly decided cases. And those justices that beleive the decision is correct don't need reminding of the fact. If I were allotted only 30 minutes or less in from of the Court, I might mention the swell of cases, but I wouldn't spend any time reminding the Justices of the volume of cases of which they are well aware, or using volume of lower court decisions to reverse the 6th CA. The Justices want argument not on volume, but on constitutional analysis of Equal Protection and Due Process. My thesis addresses that, but moreover the less than scrupulous wording of the two questions. They were worded to illicit certain answers that are dammed either way. If one answered No, then the bans are constitutional. If one answers yes, then the big bad majority of un-elected judges is imposing its will and usurping the will of the people and to boot saying the constitution requires the states to do something against their public policy. It's akin to a police officer arriving on scene and asking a man if he has stopped beating his wife. Either way he answers, limited to yes or no, he is dammed. Officer: "Have you stopped beating your wife?" Yes Officer. Officer: What was that sir? I mean NO! I mean YES! Either way the poor chap is dammed. This is unscrupulous and chicanery. But by throwing in the 14th amendment into the questions the pro equality side can still win, while giving the anti equality side a point to censure the majority for forcing states to do what they would not do if not compelled by a court run amuk. A very sharp point in deed. It's a clever trick, but luckily the Justices are not limited to yes or no when they write their full opinion and any concurrences.

    I didn't mean to imply that SCOTUS' questions narrow the scope of Due Process and Equal protection on a constitutional basis; instead the questions were designed to damn the person answering no matter his answer and in that way the unscrupulous wording narrows the wide path that I believe was first recognized by Judge Vaughn Walker. As far as I know, Walker was the first to invalidate a state DOMA, and do so on 14th amendment equal protection and due process. There may have been others before him, but I'm not aware of any. I do think volume of rulings is noteworthy, but volume does not win the day, and why I purposely didn't find it relevant to make my earlier points. The fact that SCOTUS mandates that the 14th amendment questions be addressed means they will rule one way or another on an equal protection and or due process basis. The 14th Amendment is where Vaughn Walker began our journey and where SCOTUS will end it, regardless of the volume of cases won below.

  • 411. VIRick  |  January 19, 2015 at 7:33 pm

    "…. the U.S. Constitution, Article VIII – Section 2 – The pompous a** clause …."

    Is this it, about cruel and unusual punishments inflicted, vis-a-vis protecting citizens from all the pontificating judges with narrow-minded viewpoints?

    "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"

  • 412. 1grod  |  January 19, 2015 at 7:37 pm

    Raga: As others have acknowledged you have a discerning mind! I'm sure some of the plaintiffs' lawyers have noted your observation, but if not, it bears standing alone:- "nobody – to the best of my knowledge – has looked at this… in Windsor itself where Kennedy concedes (not once but twice) that it is indeed the right to "marry" . Kennedy said: 1) New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. 2) The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. Found in Section III G.
    Raga noted: Kennedy says "the right to marry" and not "this right to marry" or "a right to marry".

  • 413. VIRick  |  January 19, 2015 at 8:02 pm

    TULSA, OK — More than 3,200 marriage licenses have been issued in Oklahoma since they became available to same-sex couples in the state, according to the head of a gay advocacy group, Oklahomans for Equality.

    As reported in the "Tulsa World," marriage licenses have been issued to same-sex couples in 23 of Oklahoma’s 77 counties since 6 October 2014, the date when the US Supreme Court refused to reconsider an Oklahoma judge’s ruling that struck down the state’s ban on marriage between same-sex couples. Of those, about 2,200 marriage licenses have been issued in the state’s two most populous counties, Oklahoma and Tulsa counties. A secondary spike has been noticed in counties bordering Texas.

    As soon as Oklahoma began issuing licenses to same-sex couples, advocacy groups had referrals in place for officiants, venues, photographers, and other wedding-related businesses, said Toby Jenkins, executive director of Oklahomans for Equality. “We always had a network where people can go to get information,” Jenkins said. “We have had a real strong infrastructure in place.”

  • 414. brandall  |  January 19, 2015 at 8:18 pm

    TMT and F_Young, my buddy is in Mexico with dengue fever. I was wondering why I did not hear back from him within the hour of writing him. He's down and out for a few more days, but he will answer back when he's better.

  • 415. brandall  |  January 19, 2015 at 8:45 pm

    More cake discrimination news…but, before we do the updates, has anyone else caught the irony of cakes and the @#$^^ BAKER case. Did God whisper to a preacher, we have the BAKER case, now go after cake makers?

    Moving on, the latest in Colorado:

    "Now, some anti-gay activists claiming to be exposing hypocrisy are ordering "Gay Marriage Is Wrong" cakes from gay-friendly bakeries. "I was sick and tired of Christian businesses being attacked by homosexual groups," said Theodore Shoebat, a self-described 'militant Christian' who called 13 businesses ordering cakes last year."

    This seems to me less and less about religious freedom and more and more about free speech. Can a billboard company refuse to print and display a hateful advertisement next to a freeway? I know there have been successful cases where government-run mass transit has been able to deny hateful ads.
    http://www.thedenverchannel.com/news/local-news/d

  • 416. Rick55845  |  January 19, 2015 at 8:47 pm

    I already upvoted you. I have made numerous similar observations about the way the questions were worded. The wording is not favorable toward us. However, Kennedy is a smart man. I rest my hope on that.

  • 417. Zack12  |  January 19, 2015 at 9:01 pm

    The problem is you aren't thinking cautiously, you are being 100% negative.

  • 418. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:06 pm

    And why are you available is the question?!?!?!?

  • 419. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:09 pm

    I didn't state that very well. I will be in Chicago for St. Patrick's Day festivities, which since the day falls in the middle of the week, will be there the weekend before, which is the 13th-15th of March.

    So it would be pre-pre-St. Patrick's Day weekend, the 6th-8th of March if I can convince them (i.e. Chop, Chopping) all on the location and doing it before his birthday weekend instead of after.

  • 420. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:12 pm

    And I wanted to be the 420th comment on this thread…missed it by one!

    So much said on this thread, but alas, PLEASE start a new one! Use any news you want on marriage equality, whatsoever…I can't search through this massiveness any longer.

    Respectfully submitted,
    KELL

  • 421. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:17 pm

    I thoroughly enjoyed typing it!

  • 422. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:19 pm

    Damn that post-game locker room interviews.

    Okay, I'm listening (reading) again. Viva cilantro?

  • 423. Ryan K (a.k.a. KELL)  |  January 19, 2015 at 9:21 pm

    Now it's just a challenge! I guess your guacamole is cilantro free then.

    How about dill weed as a spice? That's a deal breaker for me.

  • 424. VIRick  |  January 19, 2015 at 9:42 pm

    Excellent, that will work perfectly!

  • 425. VIRick  |  January 19, 2015 at 10:06 pm

    Ryan, I so want to say something ridiculously cute about cake topper positions.

  • 426. apimomfan2  |  January 19, 2015 at 11:06 pm

    Boies and Olson on the Michelle Rhee/strip teacher tenure bandwagon?!?! :
    http://www.washingtonpost.com/local/education/dav

  • 427. DrBriCA  |  January 19, 2015 at 11:12 pm

    I'm listening….

  • 428. VIRick  |  January 19, 2015 at 11:17 pm

    Check my profile now

  • 429. VIRick  |  January 19, 2015 at 11:26 pm

    "And why are you available is the question?!?!?!? "

    That's a legitimate, sensible question, but it's one I'd prefer to answer privately.

  • 430. F_Young  |  January 20, 2015 at 12:58 am

    I'm sorry to hear about your buddy. I hope it does not get too bad and that he recovers soon.

    I had not really thought about dengue fever as a risk when traveling in Mexico, Central America and the Caribbean. Given its prevalence in these countries and India, it is surprising that there is no vaccine yet.

    Thank you for contacting your buddy. There is no urgency in getting an answer.

  • 431. Wolf of Raging Fires  |  January 20, 2015 at 4:59 am

    New thread! New thread! NEW THREAD! NEW THREAD! NEW THREAD! *chants*

    Got your back, buddy. 😉

  • 432. montezuma58  |  January 20, 2015 at 5:29 am

    It's kind of hard to keep up with since there are over 400 post in these comments. Here's a copy amd paste of my earlier comment on this incident:

    I hope the group pushing this stunt gets hit up for legal fees when they finally loose. It's nothing but a lame stunt that the anti equality side will misconstrue to try to portray anti discrimination laws as one sided or unfair.

    They will gloss over the fact that the laws deal with rejecting customers based on characteristics of the customer not on the specific details of the product being sold. The baker in this case has the right to not make a cake of a specific design. Just as a baker who doesn't like gay people marrying doesn't have to sell a cake with two groom figurines on top. What neither can do is refuse to sell what they normally would to anyone else based on their (or their customers') religious views.

    Essentially what the people behind this stunt are doing is the same as trying to claim a kosher grocery store is being anti Christian because the store doesn't sell bacon. Of course though, these people will conflate negotiating details on one deal with "we don't serve your kind here."

  • 433. montezuma58  |  January 20, 2015 at 5:49 am

    What a lot of people seem to forget that most of the stuff dealing with the wedding business are typical retail transactions. The customer gives the merchant money. The merchant hands over an item or does some type of service. What either does before or after is of no practical legal relevance. Pre conditions and post conditions on such transactions are rare and difficult to enforce. If I bought a car and part of the purchase paperwork said I couldn't shop at Publix the car dealer would have an uphill battle trying to enforce that as it's really extraneous to the transaction at hand. Just the same if a baker didn't want his cakes used in same sex weddings and I purchased one from him without giving him any prior knowledge as to the nature of where the cake will be used, the baker would have no legal recourse against me. Once paid for the cake is mine to do with as I please.

  • 434. F_Young  |  January 20, 2015 at 5:51 am

    And now, on a related topic:

    Why Irish govt should send gay minister to NYC St. Patrick’s Day Parade
    http://www.irishcentral.com/opinion/niallodowd/Wh

  • 435. F_Young  |  January 20, 2015 at 7:18 am

    Berlin Story
    How the Germans invented gay rights—more than a century ago.

    This is a fascinating, extensive review of Robert Beachy’s “Gay Berlin: Birthplace of a Modern Identity.”
    http://www.newyorker.com/magazine/2015/01/26/berl

  • 436. Sagesse  |  January 20, 2015 at 7:27 am

    From South Carolina

    Upstate Lawmakers Introduce 4 Bills to Circumvent Gay Marriage
    http://www.wspa.com/story/27886341/upstate-lawmak

    Four bills to take up time and air and committee resources and media cycles… making it virtually impossible to mount an effort to pass anti-discrimination laws in the state. Perhaps that is what they had in mind. Please Darwin, that these laws never make it out of committee, let alone be brought to a vote or passed. <Sigh>.

    The Williams Institute is doing a series of reports by state on employment discrimination against LGBT people in states that don't have legislative protection.
    http://williamsinstitute.law.ucla.edu/research/wo

  • 437. JayJonson  |  January 20, 2015 at 7:56 am

    Raga, I think you posit a very interesting and plausible scenario for Roberts and Alito to dissent on one question and concur on the other. If they hinge their votes on federalism, it would at least be consistent for them to think that states could refuse to perform marriages but nevertheless be required to recognized the marriage performed in other states.

    I think, however, that their votes will make no difference, for it is likely that there will be a five-four majority ruling that bans on both performing and recognizing same-sex marriages violate the 14th amendment.

  • 438. JayJonson  |  January 20, 2015 at 8:25 am

    I agree, Wolf. I was thinking just this morning that the Court's caution in 2013, by ducking Hollingsworth while ruling in Windsor, set up the orderly progression to where we are now, with over 70% of the population living in states where marriage equality prevails. Extending equality to the fourteen remaining states will be far less dramatic and (in our opponents' view, traumatic) than it would have in 2013. At least 70% of the population know that the sky will not fall when SCOTUS does the right thing.

  • 439. JayJonson  |  January 20, 2015 at 8:35 am

    I agree with Wolf and VIRick generally, but SCOTUS does not always limit the scope of its decisions to the questions it asks the briefs to address. Moreover, it is conceivable that in its decision, it may address issues such as full, faith, & credit, especially insofar as equal protection and due process affect the public policy exception. So I understand the point being made by Ianbirmingham. Still, it is very clear that the decision itself will be focused on equal protection and due process.

  • 440. JayJonson  |  January 20, 2015 at 8:39 am

    cpnlsn88, I agree that Kennedy will do the right thing. We should not forget that he wanted to decide Hollingsworth in 2013. I think he was prepared then to declare that bans on same-sex marriage violate the 14th Amendment and are motivated by animus. Now, as you say, he is in an even better position to issue a landmark decision.

  • 441. JayJonson  |  January 20, 2015 at 8:45 am

    I cannot imagine Kennedy signing onto a decision that "splits the baby." By allowing states to refuse to recognize same-sex marriage, he would be allowing them to exhibit the very animus he has consistently denounced in his landmark gay-rights rulings. It is inconceivable that he would denounce the federal government's DOMA for being motivated by animus and then allow a state to practice the same kind of animus.

  • 442. JayJonson  |  January 20, 2015 at 8:49 am

    Yes, VIRick, Scalia's dissents have been crucial in clarifying and even extending the great decisions written by Kennedy. I like your distinctions. Kennedy writes "historic" decisions on gay rights; Scalia writes "histrionic" dissents on gay rights.

  • 443. JayJonson  |  January 20, 2015 at 8:55 am

    brandall, I think you give Scalia credit for too complex and interesting an inner life. He is not closeted or secretly gay and subconsciously revealing his wish he could have come out.

    The man is so bent on venting his homophobia, he doesn't realize that in his dissents he is pointing the way for lower courts to read the implications of the decisions by the majority in Lawrence and Windsor. This does not mean he is secretly gay; it means he is homophobic and not very smart. (In contrast, Roberts, whom I think is also homophobic, is smart enough to know that the best way to use dissents is to attempt to limit the scope of the majority ruling; hence he tried to pretend that Windsor was really just a federalism decision.)

    Scalia is at heart simply a Roman Catholic ideologue and a homophobe.

  • 444. FredDorner  |  January 20, 2015 at 11:44 am

    So far all these bills seem to run directly counter to the Romer v Evans precedent. These same confederate states tried to pull this nullification crap 50 years ago and always lost in the end.

    If anything it simply provides proof of the anti-gay animus and helps the court make a decision to use heightened scrutiny. I doubt the bigots will like the result.

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