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BREAKING: Supreme Court grants review of all four Sixth Circuit marriage cases

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Supreme Court has granted review in challenges to same-sex marriage bans from the Sixth Circuit Court of Appeals. Instead of picking one or two, the Court went ahead and granted all four.

In its order, the Court rewrote the questions that it has decided to take up, although the rewording didn’t change the scope of review significantly. They will still decide whether states can ban same-sex marriage and whether they can refuse to recognize those validly performed marriages from other states.

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?”

In addition to rewording the questions, the Court also set the briefing schedule, with reply briefs due April 17. The Court’s order states that parties to the case can only present arguments on the questions from their specific cases. This means for example, in the Ohio case, the couples can only argue the recognition question.

Here is that portion of the order: “A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.”

We will have more on this developing story…

UPDATE: SCOTUSBlot tweeted that arguments will likely be the week of April 27:

257 Comments

  • 1. mariothinks  |  January 16, 2015 at 12:44 pm

    They should take all the cases. They were all wrongfully decided. I guess the 90 mins means 45 minutes for each side and the one hour means 30 mins for each side?

  • 2. Sagesse  |  January 16, 2015 at 12:45 pm

    From the SCOTUSblog twitter:

    "Get in line now: SSM arguments at SCOTUS will be the week of April 27; very likely April 29."

  • 3. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 12:47 pm

    That was a big question of mine with the briefs being due so late into April… how long from the reply briefs until orals are held. Interesting that they are suggesting just a week between the two.

  • 4. SethInMaryland  |  January 16, 2015 at 12:48 pm

    now everthing freezes , it would be nice if we could have got that 5th ruling end in the last seconed

  • 5. Zack12  |  January 16, 2015 at 12:50 pm

    I do as well, it certainly would have helped us.

  • 6. guitaristbl  |  January 16, 2015 at 12:50 pm

    So the Ohio and Tennesse attorneys on either side will only be speaking on the 2nd half about recognition.
    The Michigan attorneys on either side will only be speaking during the 1st half about celebration.
    The Kentucky attorneys on either side will be arguing on botn questions.

    So the for the celebration question we have two cases (two sets of plaintiffs and state defendants) arguing for 90 minutes (45 minutes each ?) and for the recognition question we have three cases argued for an hour (20 minutes each ?).

    The celebration question gathers more interest obviously and that's to be expected.

  • 7. Zack12  |  January 16, 2015 at 12:50 pm

    I hope they don't split the baby on this.
    Settle this question once and for all and give us equality!

  • 8. cpnlsn88  |  January 16, 2015 at 12:52 pm

    This might seem a foolish question, but does the granting of a writ of certiorari by SCOTUS on marriage recognition cases mean that Baker (for want of a substantial federal question) has been nullified? The fact of granting cert surely means there is a substantial federal question.

  • 9. sab39  |  January 16, 2015 at 12:52 pm

    Is there any significance to the fact that the questions are specifically about the Fourteenth amendment? Does that rule out declaring SSM a constitutional right under any other part of the Constitution, or is the Fourteenth the only part of the Constitution that makes any sense for this topic?

  • 10. brandall  |  January 16, 2015 at 12:53 pm

    And a week should be just fine. These cases are the culmination of 100+ cases and a million hours of attorneys thoughts. Every argument known to man or woman has been put out there. Every response to each of those arguments has been dissected to minuscule pieces. It is now a matter finding the "best of the best" across all the cases.

  • 11. Raga  |  January 16, 2015 at 12:54 pm

    Did anyone notice that in rewording the questions, the Justices were careful not to use the phrase "same-sex marriage" but instead "marriage between two people of the same sex"? That tells me something…

  • 12. brandall  |  January 16, 2015 at 12:54 pm

    The only remaining one million dollar question…for the oral arguments….WHO will be in front of the court representing ME?

  • 13. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 12:55 pm

    And EXPLICITLY overturn Baker v. Nelson damnitall!

  • 14. pdheld98  |  January 16, 2015 at 12:56 pm

    That is my fear – they are looking for some half-step compromise. I can envision a narrow ruling that says states have to recognize, but don't have to permit marriages in the state.

    We need full equality and we need it now.

  • 15. SethInMaryland  |  January 16, 2015 at 12:56 pm

    i think the questions are ment just to do that

  • 16. Rick55845  |  January 16, 2015 at 12:57 pm

    I believe that due process and equal protection, which have been implicated in the arguments of almost every single ME case, apply to the states specifically because of the 14th amendment.

    So I would say yes.

  • 17. wes228  |  January 16, 2015 at 12:58 pm

    How would this case be captioned since they are consolidated? Is it Obergfell v. Hodges since that's the first one on the list? In other words, how will people refer to this decision (in the vein of "Roe v. Wade" and "Brown v. Board of Education")?

  • 18. Jen_in_MI  |  January 16, 2015 at 12:59 pm

    This is such awesome news!!! WOOHOO…and now we wait for the end of marriage inequality forever.

  • 19. sfbob  |  January 16, 2015 at 12:59 pm

    Per SCOTUSblog:

    "The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans. As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but under court challenge.

    Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans."

  • 20. DeadHead  |  January 16, 2015 at 12:59 pm

    This reworded question with the word “license” has me wondering if the Supremes are going to strike down state bans on SSM but with a caveat saying that states don’t have to “license” SSM.

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

  • 21. brandall  |  January 16, 2015 at 1:03 pm

    But, while we are waiting for that June decision, our ME attorneys sure better be appealing your marriage and the other "window" marriages to SCOTUS. There is no reason to wait for the SCOTUS ME decision since you have a valid marriage license.

  • 22. sfbob  |  January 16, 2015 at 1:04 pm

    The reality is that Baker was nullified some time ago, just not explicitly. The fact that federal courts have issued substantive rulings on marriage equality quite loudly says that the marriage equality indeed presents "a substantial federal question." Had it been otherwise, all or at least most of the courts would simply have dismissed the suits they instead ruled favorably on this past year.

    There's no way of knowing what the court is likely to say on Baker when it issues a decision but I would be very surprised if they did not feel compelled to comment on Baker. And there'd be no reason for them to do that unless they intended to bury Baker once and for all.

  • 23. Raga  |  January 16, 2015 at 1:07 pm

    Technically, no. Because they can reaffirm Baker if they uphold the Sixth Circuit. Highly unlikely, though.

  • 24. sfbob  |  January 16, 2015 at 1:07 pm

    An important question. There's one hell of a lot of legal power represented by the various teams. If they are wise they will work collaboratively. I assume there is some form of etiquette that determines the size of a legal team arguing before the Supreme Court but it seems to me that within those bounds they'd want to team to be as expansive as possible. I'm sure they'll figure it out.

  • 25. bdlucey  |  January 16, 2015 at 1:08 pm

    Do Olson/Boies represent any of these appellants? I'd sure feel a little better knowing they were in the courtroom.

  • 26. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 1:09 pm

    In my mind, the denial of cert in the 4CA / 7CA / 10CA cases back in October was the writing on the wall that Baker is dead. How can you have a be precedent when you explicitly let three circuit rulings stand by not taking them up that contradict it 100%?

    While I'd love to read it, I think as you say, but taking these cases (along with denying cert in those circuit courts), it's already nullified.

  • 27. brandall  |  January 16, 2015 at 1:09 pm

    I read this the opposite way. Specifically using the word "license" boxes the question in a state action and separates any ambiguity from religious organizations.

  • 28. SoCal_Dave  |  January 16, 2015 at 1:11 pm

    I hope it's telling you that they are going to look at "marriage," which is a fundamental right, and not at "same-sex marriage" which doesn't exist (hat tip to Rose).
    Do you have the original wording of the questions? What other differences are there?

  • 29. davepCA  |  January 16, 2015 at 1:11 pm

    When your'e talking about CIVIL marriage as opposed to something like a symbolic religious wedding ceremony, the 'licensing' by the state is exactly what the whole issue is, because that is what makes a couple legally recognized as legally married. It's not possible for that to be a 'caveat'.

  • 30. Rick55845  |  January 16, 2015 at 1:12 pm

    I asked a similar question in the previous thread.

    Are you questioning if they will rule that states can't ban same sex marriage, but don't have to license it? Isn't that just a cop out that allows a state to deny a fundamental right?

    My fear is that they might rule that a state that chooses to issue civil marriage licenses cannot deny them to same sex couples, but that a state doesn't have to issue civil marriage licenses at all. Sort of like what one Arkansas republican legislator (or was it Oklahoma) proposed, that the state stop issuing marriage licenses.

    I hope my thinking is just clouded out of a fear of something going wrong.

  • 31. weaverbear  |  January 16, 2015 at 1:12 pm

    Well AMEN. We finally are now approaching the end game for marriage equality in this country and not a moment too soon. I have been saying for a long time, God forbid this comes to the court after we lose Ginsberg, Breyer or Kennedy.

    With the court as it is currently constituted, I do not see how we cannot win our equal marital rights this year.

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

    YUP. It certainly has a nice 'ring' to it : )

  • 33. sfbob  |  January 16, 2015 at 1:13 pm

    Brown vs Board of Education was actually a consolidation of five different cases. It was captioned "Oliver Brown, et al. v. Board of Education of Topeka, et al."

  • 34. Raga  |  January 16, 2015 at 1:14 pm

    I'd have to look to be sure but since the cert petitions were filed by our side, I would guess they didn't use the term "same-sex marriage" either.

  • 35. Rick55845  |  January 16, 2015 at 1:14 pm

    I noticed that, and I thought it was carefully worded to avoid the implication that a new right was being sought. I view that as a positive for us.

  • 36. guitaristbl  |  January 16, 2015 at 1:14 pm

    Some people in certain bigoted states of the deep south are already sweating :
    http://www.scotusblog.com/2015/01/symposium-good-

    I mean, he must have had this one prepared some time before SCOTUS decided to grant cert.

  • 37. Tinmanic  |  January 16, 2015 at 1:15 pm

    No, they don't.

  • 38. sfbob  |  January 16, 2015 at 1:15 pm

    I would take the expression to mean "Do states have to issue a marriage license to a specific subset of couples?" Marriages require licenses, just as drivers do. I wouldn't read anything more into it than that.

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

    Yes, technically, but if they were going to do that, they could have just said 'Baker is binding and cert is denied' today. The fact that they didn't do that makes it even more unlikely that they would rule on the basis of 'Baker is binding'.

  • 40. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 1:17 pm

    So how quickly do we see motions in the 5CA and 11CA to put these cases in "abeyance" while SCOTUS now decides these consolidated cases? I imagine both AG Bondi and the AGs of TX/LA/MS would prefer to not see a ruling against them and just let this hash out at the SCOTUS level and let the 6CA take the heat!

  • 41. SoCal_Dave  |  January 16, 2015 at 1:20 pm

    Thanks, Raga. I misunderstood you to be saying that eliminating the phrase "same sex marriage" was part of the court's rewording, but now I see that you just meant that they took care not to introduce that phrase. Still good news.

  • 42. davepCA  |  January 16, 2015 at 1:22 pm

    It certainly is positive. It telegraphs that the Supreme Court already concedes that this decision is not about a 'new right to same sex marriage'.

  • 43. Steve27516  |  January 16, 2015 at 1:22 pm

    Dave, that pun is both atrocious and beautiful.
    :-)

  • 44. hopalongcassidy  |  January 16, 2015 at 1:23 pm

    But wouldn't that be logically/legally impossible given today's announcement? If Baker controlled, wouldn't they essentially have to refuse all the others? I don't get it…

  • 45. DeadHead  |  January 16, 2015 at 1:23 pm

    Marriage as a secular civil contract is better

  • 46. brandall  |  January 16, 2015 at 1:23 pm

    That doesn't matter. They could be asked in if the ME attorneys and groups behind these cases believe that one or both would be their best representative. There is a logic to this since research has shown that about the same 67 (out of thousands) attorneys control and win more than 40% of all SCOTUS cases.

  • 47. guitaristbl  |  January 16, 2015 at 1:24 pm

    A nice observation Raga..! Or we may be grasping at straws who knows 😛

  • 48. guitaristbl  |  January 16, 2015 at 1:26 pm

    I suppose the consolidated cases will receive an appropriate name before oral arguments for summary reference. Obergfell et al. v. Hodges et al. sounds a possible scenario.

  • 49. davepCA  |  January 16, 2015 at 1:28 pm

    No, Raga is right, technically the Supreme Court COULD grant cert and then announce 'Baker is Binding" in the ruling, rather than announcing 'Baker is binding' now, as a reason to deny cert in the first place. But the fact that they granted cert pretty much shows that they have no intention of making any such ruling.

  • 50. RnL2008  |  January 16, 2015 at 1:30 pm

    I am happy with the specific questions, but I would have liked to have seen a question regarding the Fundamental Right to marry regardless of Gender make-up!

    Here's my opinion regarding the two specific questions being addressed…….the answer is YES and I see SCOTUS ruling in our favor.

    I mean either a State is required to recognize ALL marriages performed in other States, or they DENY recognition of marriages for ALL couples who marry in other states.

    The same should be applied to Section 1 of the 14th Amendment…..just my take on the questions.

  • 51. Raga  |  January 16, 2015 at 1:31 pm

    You have a point, since they've explicitly asked for briefing and argument on two federa questions that Baker holds insubstantial. But, they could use these cases to perhaps clarify/revise the long standing principles of the effect of a summary disposition. They might clarify what doctrinal developments are and aren't. They might overrule Hicks on this question and invalidate the doctrinal developments doctrine. They might end up ruling after briefs and oral argument that these federal questions are still as unsubstantial as they were in 1972. They could do anything they want! But as I said above, it's highly unlikely.

  • 52. SethInMaryland  |  January 16, 2015 at 1:33 pm

    what about Mary Bonauto, i think she would be perfect to argue this case, she kinda was the first one who got the ball rolling ,maybie she's the perfect one to finnish it

  • 53. Raga  |  January 16, 2015 at 1:35 pm

    That's my fear too!

  • 54. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 1:36 pm

    How can they POSSIBLY have denied cert in 4th, 7th, 10th if Baker controlled?

  • 55. SethInMaryland  |  January 16, 2015 at 1:36 pm

    i want Mary Bonautot o do it , she's so good at argueing these cases

  • 56. RnL2008  |  January 16, 2015 at 1:37 pm

    It's about time folks stop using "SAME-SEX" in front of the word marriage because we AREN'T looking for a new right, just to be included in the existing right……and I believe SCOTUS is going to state that the answer to both questions is Yes, the 14th amendment requires the States to treat ALL Citizens the same with regard to marriage and recognizing marriages from other states!

  • 57. Rick55845  |  January 16, 2015 at 1:39 pm

    Rose, with respect to recognition, when you say all marriages and all couples, do you mean all marriages between persons of the same or opposite sex only, or would you include marriages that run afoul of consanguinity or age restrictions in some states also?

    SCOTUS limited it to marriages between persons of the same sex, so I'm guessing that is what you mean, but I just wanted to ask, because some people think that marriage laws in the US should be uniform across all the states. I think that would fly in the face of the principles of federalism though, and I'm sure this court would never go that far.

    The question is, where is the line? The line, I feel, is wherever the constitution draws it with respect to equal protection and due process, but I couldn't tell you exactly where that is. Even the Supremes seem to disagree on where it is.

  • 58. sfbob  |  January 16, 2015 at 1:40 pm

    I've always felt that Congress, in passing DOMA, CREATED a substantial federal question related to marriage equality even before the rulings in Windsor and in the 4th, 7th and 10th Circuits. And the 6th Circuit ruling GUARANTEED a substantial federal question.

  • 59. Raga  |  January 16, 2015 at 1:42 pm

    Technically, denial of cert is not a decision affirming the lower courts.

  • 60. guitaristbl  |  January 16, 2015 at 1:42 pm

    And another one :
    http://www.scotusblog.com/2015/01/symposium-cert-

    This one is essentially saying that "Sutton's ruling is such a great ruling and such a breath of fresh juducial air that the court was waiting for such a decision to affirm".

  • 61. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 1:44 pm

    The cases on the Order List published today are in numerical order of their docket number, not in any preferential treatment with regards to the case otherwise.

    14-556 ) OBERGEFELL, JAMES, ET AL. V. HODGES, RICHARD, ET AL.
    14-562 ) TANCO, VALERIA, ET AL. V. HASLAM, GOV. OF TN, ET AL.
    14-571 ) DeBOER, APRIL, ET AL. V. SNYDER, GOV. OF MI, ET AL.
    14-574 ) BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

    I don't know consolidation practices, to know if they just take the case with the earliest docket number and use that as the primary. If so, then yes, this will be known as Obergefell vs. Hodges.

  • 62. RnL2008  |  January 16, 2015 at 1:44 pm

    Yes, I am including marriages between opposite-couples……..because why should a State be able to recognize the legal marriage of an opposite-sex couple, but be allowed to not recognize the legal marriage of a Same-Sex Couple…….I mean a married couple is a married couple regardless of gender make-up, right?

  • 63. Raga  |  January 16, 2015 at 1:44 pm

    The DeBoer petition asks "Whether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry."

    The Obergefell petition asks "Whether a state violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution by depriving same-sex couples of the fundamental right to marry"

    So it would seem the rephrasing is a neutral middle-ground between the "right to marry" and the "right to same-sex marriage".

    Perhaps it is also a sign pointing in the other direction – that the Court is not inclined to take the fundamental rights / strict scrutiny route and instead take the equal protection sexual orientation discrimination route. So the rewording now allows them to not be limited to considering just the fundamental right question, i.e., if the Court answers "no" to both the original questions above, it still leaves the equal protection route unresolved.

  • 64. Rick55845  |  January 16, 2015 at 1:52 pm

    Yes, I agree that the sex of the couples is irrelevant, and that is the central issue. I was asking if you were lumping consanguinity restrictions (e.g., first cousin marriages) and age restrictions on marriage into the same boat. Or for that matter, the number of people in the marriage (poly-amorous marriages). But I'm guessing now that you were not including those. Thanks.

  • 65. flyerguy77  |  January 16, 2015 at 1:53 pm

    omg without reading it, the author is anti gay– They don't get it!!!!!!!!!!! If he thinks SCOTUS was waiting for the "prefect case" Sutton why didn't they hold on the cases from 4th, 7th and 10th Circuits and kept denying stays since then?

  • 66. DeadHead  |  January 16, 2015 at 1:54 pm

    SCOTUSBlog, the final frontier for the bigoted wanna be heard maybe the Supremes will see my last gasps of breath and be swayed….I bet there will be a few more

  • 67. VIRick  |  January 16, 2015 at 1:55 pm

    Correct. "Baker" can not be binding, or the Court would not have granted certiorari today.

    The "problem" with "Baker" is this: The opposition has nothing else to rely upon to support their argument. So, they will keep dredging up "Baker' ad nauseum, and dutifully wrap their circular reasoning around it. They have to hang it on something, and "Baker" is all they can find.

  • 68. guitaristbl  |  January 16, 2015 at 1:56 pm

    To write the piece I linked above, you need to make such huge logical jumps, you lose any touch with reality.

  • 69. Zack12  |  January 16, 2015 at 1:57 pm

    The bigot in question is Austin Nimocks, a bigot from the ADF who argued (and lost) before the 4th circuit on VA's gay marriage ban.
    He has been fighting against us for a long time so it's no surprise to see him rooting for the only circuit to go against us.

  • 70. sfbob  |  January 16, 2015 at 1:57 pm

    It's a guest opinion…

    "Austin Nimocks is Senior Counsel at Alliance Defending Freedom."

    I'm not going to read it as reflecting the views of SCOTUSblog.

  • 71. Zack12  |  January 16, 2015 at 1:57 pm

    Exactly, the 10th,4th and 7th ALL had cases dealing with the issues the 6th ruled against us, why did they not take it up then and put holds on the Florida cases?

  • 72. Rick55845  |  January 16, 2015 at 1:58 pm

    Thank you. I was wondering what their motivation could be to rephrase the questions from the perspective of denying or depriving couples of a fundamental right, to one of whether or not states are constitutionally obligated to issue and recognize.

    I don't recall any of the ME cases phrasing the question the way SCOTUS did.

  • 73. hopalongcassidy  |  January 16, 2015 at 1:58 pm

    Marriage is like a 3 ring circus: The engagement ring, the wedding ring and the suffering.

    (shamelessly stolen from elsewhere, I will ship a bottle of single malt scotch to the first one to get it!)

    😀

  • 74. sfbob  |  January 16, 2015 at 1:59 pm

    See my response above. The author is senior counsel at Alliance Defending Freedom (pardon me while I roll my eyes here). OF COURSE he's anti-gay; it's his job.

  • 75. VIRick  |  January 16, 2015 at 1:59 pm

    But Hop, you do get it. It is logically/legally impossible for "Baker" to be controlling, given today's announcement. There IS a substantial federal question. The Court just said so by granting certiorari.

  • 76. RnL2008  |  January 16, 2015 at 2:00 pm

    Afternoon Dave…….it's about damn time that the "SAME-SEX" in front of marriage has been dropped…….nothing on my marriage license stated "SAME-SEX" nor has those words been stated on any other marriage license issued to Same-Sex couples and when the ruling comes down. I believe we will have a ruling in our favor:-)

  • 77. SoCal_Dave  |  January 16, 2015 at 2:04 pm

    Thanks, Raga. Not to belabor this, but do you see any significance in how they turned the negative wording to positive? The petitioners asked if states can "deny" or "deprive",. To me that sounds like the state is limiting a right. But now the court is asking if the state is "required" to marry. That sounds a little different. As Rick asked in the earlier thread, is a state *required* to marry *anybody"?
    Also too bad about the dropping of "fundamental right" from Obergefell wording.
    Don't want to rain on this grand parade but seems like every word matters.

  • 78. VIRick  |  January 16, 2015 at 2:06 pm

    And I'm in agreement.

    Given that the Court re-worded the questions before them for us, any/all argument presented to the Court by both sides, whether in the form of written briefs or at oral argument itself, need to address themselves to the 14th Amendment, and only the 14th Amendment.

    At this stage, any other grounds is extraneous.

  • 79. Sagesse  |  January 16, 2015 at 2:07 pm

    SCOTUSblog does these symposia all the time… they did them for Perry and Windsor too. They invite legal authorities with different points of view to write an essay. Publishing the essays does not express SCOTUSblog's agreement or disagreement with an author's position.

  • 80. guitaristbl  |  January 16, 2015 at 2:08 pm

    I did not say it does, its part of the Symposium. But they are worth reading, especially this one, for the logical fallacies and omissions they fall into.

  • 81. RnL2008  |  January 16, 2015 at 2:11 pm

    I was including every legal marriage with the exception of polygamy or polyandry, as neither is legal under current marriage requirements.

    Now, in the future……polygamy or polyandry may become an issue, but at this time, we only need to deal with marriages between 2 consenting adults.

  • 82. VIRick  |  January 16, 2015 at 2:11 pm

    "…. the Justices were careful not to use the phrase "same-sex marriage" but instead "marriage between two people of the same sex"? That tells me something… "

    Actually, Raga, that tells me everything we need to know; namely, that they intend to rule in our favor. Only the handful of ass-hats who ruled against us, like Feldman in Louisiana, or Sutton at the 6th Circuit, turned it around and used the opposing phrase.

    And Guitar, that's not grasping at straws. Raga's keen eyes spotted a very substantive point.

  • 83. sfbob  |  January 16, 2015 at 2:11 pm

    You'll get no argument from me there. One of Mary Bonauto's colleagues at GLAD is a friend of mine; he was one of the founding members of the organization and is now semi-retired. He is absolutely in awe of her.

    I agree she'd be an asset. I assume that others, particularly people like Roberta Kaplan, will participate in oral arguments as well and that some of the local counsel would be given some time before the Justices, simply in the interest of collegiality. It's possible as well that other counsel might be added who seem to have particular skills or experience arguing before the Supreme Court. If I understand correctly additional counsel can be invited in.

  • 84. sfbob  |  January 16, 2015 at 2:13 pm

    Just curious: does she have prior experience arguing cases before the Supreme Court?

  • 85. DeadHead  |  January 16, 2015 at 2:15 pm

    It was just tongue-in-cheek towards the bigots on my part, I wasn't implying SCOTUSBlog to be biased

  • 86. JamesInCA  |  January 16, 2015 at 2:17 pm

    Marriage as a religious sacrament, distinct from the issue of the civil contract, is outside the Court's purview. It's the marriage opponents who are confused about that distinction.

  • 87. JamesInCA  |  January 16, 2015 at 2:18 pm

    I'd feel better about that if Olson/Boies had won a marriage argument at the Supreme Court before.

  • 88. Zack12  |  January 16, 2015 at 2:19 pm

    One more thing…. this is where we need to count our blessings when it comes to a couple of the judges that never got on SCOTUS.
    1) Robert Bork – this vile man made it plain and clear that he loathed our community and that we belonged in prison.
    The gains we've made would have NEVER been possible if he had made it onto SCOTUS.
    At least for once, Democrats showed a spine and kept a right wing hack off the bench.
    2) Johnnie Rawlinson – Someone who was going to strongly be considered for SCOTUS under Obama. Her joining that dissent in the 9th last week tells you all you need to know about how she would have ruled on DOMA and the upcoming bans.

  • 89. David_Midvale_UT  |  January 16, 2015 at 2:20 pm

    The farce is strong with this one.

  • 90. ianbirmingham  |  January 16, 2015 at 2:23 pm

    The legal theory for polyamory (see http://lovemore.com) has already been developed; click here:

    http://www.reddit.com/r/polyamory/comments/292o7u

    Regarding consanguinity, click here: http://marriage-equality.blogspot.com/

    and also here: http://cousincouples.com/

  • 91. Sagesse  |  January 16, 2015 at 2:25 pm

    If you've got Austin Nimocks and John Eastman, that's probably the brain trust of the anti-ME bar. Intellectual giants, both.

  • 92. Rick55845  |  January 16, 2015 at 2:25 pm

    Agree. But I would point out that states do not license or otherwise care about the vast majority of purely private civil contracts. I can think of no fundamental reason why a state would have to license marriages either. They could be purely private contractual arrangements. I'm not saying I think that would be preferable, only that I don't see that states have an obligation to license marriages at all. Yet that is the question the SCOTUS seems to have posed.

  • 93. Sagesse  |  January 16, 2015 at 2:30 pm

    Attorney General Holder Statement on Supreme Court Decision to Hear Same-Sex Marriage Cases
    http://www.justice.gov/opa/pr/attorney-general-ho

  • 94. guitaristbl  |  January 16, 2015 at 2:33 pm

    YES they will file amicus brief in favour of marriage equality ! I was expecting it but good to read it directly from the justice department !

  • 95. Rick55845  |  January 16, 2015 at 2:36 pm

    What, someone doesn't like the fact that I asked Rose a clarifying question? Who have I offended by asking a question that makes no assertion of its own?

  • 96. andrewofca  |  January 16, 2015 at 2:40 pm

    Raga, by that logic (i.e. explicitly asking for briefing/argument), wouldn't granting cert to the Prop 8 case in 2013 have nullified Baker? Thoughts?

  • 97. ebohlman  |  January 16, 2015 at 2:40 pm

    I believe that both sides in the TX case have specifically asked the 5CA not to stay proceedings, though of course the court can stay them sua sponte. It will probably depend on what the parties in LA and MS want to do.

  • 98. Eric  |  January 16, 2015 at 2:46 pm

    Baker only dealt with issuance, not recognition.

  • 99. VIRick  |  January 16, 2015 at 2:47 pm

    "WHO will be in front of the court representing ME?"

    That is, indeed, the million dollar question.

    I can only add, "Been there, done that." Of course, I did my ME presentation before the Court in July of 2013, during the Court's summer recess, so that the 9 seats facing me across the room were empty. Still, it was intimidating as all holy hell to stand there at the plaintiff's podium and address the 9 empty seats, no microphone, no sound amplification (and none in return, either), just you alone before the Court. It is absolutely vital for any/all attorneys addressing the Court to really speak up, loudly and forcefully. In order to retain my sanity, I kept thinking: RBG is right behind the closed double-door at the back of the room, behind the 9 empty seats, listening. That instinctively forced me to speak up in the loudest tones possible. In other words, it's not an intimate setting, quite unlike the way many other courtrooms are arranged. The layout of the Supreme Court's chambers in ungodly forbidding, starting with the fact that it's necessary to project all the way across the room.

  • 100. hopalongcassidy  |  January 16, 2015 at 2:47 pm

    Thankya. I'm a little crazy but I'm not THAT crazy. But… https://www.youtube.com/watch?v=0WmbbFD_XhQ

  • 101. Eric  |  January 16, 2015 at 2:53 pm

    The 14th Amendment is what applies substantive due process (fundamental rights) and equal protection to the states.

  • 102. Eric  |  January 16, 2015 at 2:56 pm

    If marriage is a fundamental right, then the state is required to issue and recognize it, subject to constitutional exceptions.

  • 103. GregInTN  |  January 16, 2015 at 2:56 pm

    And in Brian Brown's world:

    "We are confident that the Supreme Court has chosen the 6th Circuit case in order to affirm the finding of the Appeals court"
    http://www.nomblog.com/39913/

  • 104. Mike_Baltimore  |  January 16, 2015 at 2:57 pm

    In my opinion, the decision in Baker applied to a single case, not every case that is somewhat similar to the case in Baker.

    It's like the cases about the PPACA (aka ACA or Obamacare). If the ruling in 2012 (which dealt ONLY with whether states are required to set up a web site to allow people to sign up for health insurance) applied to ALL PPACA cases, then why did SCOTUS agree to accept a case for the current term dealing (again) with the PPACA?

    So why would a decision about a single case from 1972 affect totally separate cases up to 42 years later, especially when the subject matter in many cases is almost totally different?

  • 105. Eric  |  January 16, 2015 at 2:59 pm

    Liberty v. Superstition would be my preferred caption.

  • 106. DACiowan  |  January 16, 2015 at 3:02 pm

    "They picked the only one that agreed with us! So we'll win!"

  • 107. RLFraz  |  January 16, 2015 at 3:02 pm

    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?

    Just for some information regarding the wording of this question… States do recognize all LICENSED marriages, including those from other states and countries. States can/do decide whether or not to recognize "common-law" and religious only marriages. I have a friend that determines benefits for the VA and they have to go by which marriages the states recognize. She says it can be very difficult to determine marriages when they are common-law.

    I saw that people were questioning the consanguinity and age requirements, but states will accept LICENSED marriages regardless of whether it comports with the new states requirements.

    Licensed means having an actual marriage certificate issued from the state or country of celebration.

  • 108. guitaristbl  |  January 16, 2015 at 3:03 pm

    It's essentially the same thing the guy from ADF said in the symposium of SCOTUSblog. I am sure not even Brown believes that that much anymore.

  • 109. jdw_karasu  |  January 16, 2015 at 3:06 pm

    [youtube CtGxusvUT3k http://www.youtube.com/watch?v=CtGxusvUT3k youtube]

  • 110. brandall  |  January 16, 2015 at 3:07 pm

    Ted Olson on Fox this Sunday

    Ted Olson is going back on Fox again this Sunday to debate ME. Unfortunately, it is a rematch with Tony Perkins. The linked article incorrectly states they were on together in 2012. It was actually October, 2014. Olson did a great job then and I believe he has even more to say now. FYI, this was scheduled earlier in the week in anticipation of the SCOTUS certs.
    http://mediamatters.org/blog/2015/01/15/fox-news-

    Airtime in local TV markets on Sunday:
    http://www.foxnews.com/on-air/fox-news-sunday/blo

  • 111. VIRick  |  January 16, 2015 at 3:09 pm

    Yes, states are required to issue marriage licenses to all qualified applicants who pay the requisite fee. If the states wish to provide any further service, such as officiating at a follow-up civil wedding ceremony, they have that optional choice to do so. That's why between 14-19 counties in the northern part of Florida suddenly suspended offering the optional service of providing for courthouse civil weddings for ALL applicants so as to avoid "discriminating."

  • 112. RLFraz  |  January 16, 2015 at 3:13 pm

    States currently recognize all Licensed ((ie., have a certificate of marriage), not common-law) marriages. It does not matter if a 14yr female with parental permission marries her 22 yr old male cousin in LA in front of a JP. Any state in the union will accept that marriage. They won't accept it if it is common-law.

  • 113. VIRick  |  January 16, 2015 at 3:14 pm

    Rick55845, don't over-think the question, as it's not a trick question.

  • 114. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 3:20 pm

    While I don't disagree there on the technicality, how does one skip binding precedent and deny cert to cases that contradict it?

    The amazing thing STILL to me, is that with the four votes against ME on SCOTUS, that one of the four of them opted not to grant cert in the 4th/7th/10th cases.

  • 115. Mike_Baltimore  |  January 16, 2015 at 3:20 pm

    Some indication of how the naming might eventually shake out might be how Circuit Courts name cases – I know for sure that in the 4th Circuit, the case from Virginia was a combination of cases, and the same with the case from Indiana (originally at least 3 cases consolidated into a single case. I'm sure others can come up wtih additional examples.

    I don't know anything about how SCOTUS cases are named, and being SCOTUS, they might have a much different method than the Circuit Courts.

  • 116. Raga  |  January 16, 2015 at 3:22 pm

    Oh yeah, now that you point it out. The "requirement for the state to marry" is of course subject to other restrictions that apply to heterosexuals as well, so I don't read too much into that.

  • 117. Raga  |  January 16, 2015 at 3:26 pm

    Yeah, that too! Granting cert doesn't automatically mean the questions presented or accepted for review are substantial federal questions.

  • 118. guitaristbl  |  January 16, 2015 at 3:27 pm

    The next addition to the SCOTUSblog symposium is a great one :
    http://www.scotusblog.com/2015/01/symposium-lets-

    It has convinced me that the animus argument should be pushed ahead, supported by legislative history, campaign history etc. These things should be submitted to the court and taken under consideration.

  • 119. SoCal_Dave  |  January 16, 2015 at 3:30 pm

    Thanks, Eric and Raga. I'll try to stop worrying and start celebrating, and I hope everyone else does as well.

  • 120. ebohlman  |  January 16, 2015 at 3:31 pm

    In practice, probably two out of the four, since there appears to be a custom that if three Justices want to grant cert, another will join them as a courtesy.

  • 121. Raga  |  January 16, 2015 at 3:35 pm

    Ah, I understand – Justice Kennedy used the phrase "same-sex marriage" eighteen times in his Windsor majority opinion. So I thought it striking that that phrase wasn't used in today's order.

  • 122. SoCal_Dave  |  January 16, 2015 at 3:35 pm

    I love how you put it, Rose, thanks. Best to your and your wife. :-)

  • 123. guitaristbl  |  January 16, 2015 at 3:35 pm

    The other thing is that we now have 3 practically dead months judicially. I think this will be a period where the "religious freedom" bills will start creeping in the legislatures (but not signed before the SCOTUS decision) but other than that there will be little to report honestly…

  • 124. sfbob  |  January 16, 2015 at 3:40 pm

    Ah dear Brian Brown. Let us put it to him this way:

    The Fourth, Seventh and Tenth Circuits upheld lower court decisions striking down marriage equality bans.The Supreme Court, had they been concerned with the rulings in the former circuits, could have granted cert on one or more of those rulings. They did not do so. Nor, when stays of pro-equality rulings were lifted in other jurisdictions, did the Supreme Court decide to extend those stays. Instead they let the lower court stays expire and they let gay and lesbian couples commence to get married.

    The Sixth Circuit on the other hand overturned lower court decisions upholding lower court decisions striking down marriage equality bans. And yet THIS is the decision which the Supreme Court has decided to consider. This choice of the Court's–I do not think it means what Brian thinks it means.

  • 125. Rik_SD  |  January 16, 2015 at 3:43 pm

    What other part would they be able to rule on here? 5th deals with federal govt not the states. There may be legitimate arguments under FFC and the 1st, but those were not at issue in any of the 6th circuit cases unless I am mistaken

  • 126. RnL2008  |  January 16, 2015 at 3:44 pm

    Thanks Dave, it's been a rough day for us……but this news today, means that just a little after my birthday in June, we will be partying in the Streets all over the Country and folks like Brian Brown heads will be exploding like party favorite……lol!!!

  • 127. F_Young  |  January 16, 2015 at 3:50 pm

    guitaristbl: "The other thing is that we now have 3 practically dead months judicially"

    OMG, I hadn't thought about that!

    You're right; almost all the cases will be put on hold until July. The Wiki map will freeze. There will be nothing for EoT to report, apart from the pleadings and oral arguments for just one consolidated case.

    How will I survive?

    Maybe I should spend more time at the gym. Yes, that's it.

  • 128. sfbob  |  January 16, 2015 at 3:50 pm

    As it stands now, fourteen states recognize MOST licensed marriages from other states and countries. However there is currently within those states a very broad (as opposed to case-by-case) exception: those states DO NOT recognize licensed marriages from other states and countries if both members of the married couple happen to be of the same gender. This is precisely the import of question number 2: States can currently decline to recognize marriages legally performed elsewhere. The question is whether they are permitted to do so solely on the basis that both persons in the marriage are of the same gender?

    While states can occasionally refuse to recognize marriages licensed and solemnized elsewhere, that generally happens when there are questions regarding age of consent or consanguinity. A number of states permit, under certain conditions, marriages where one or both partners are below the legal age of marital consent. I don't know specifically what states refuse to recognize such marriages if the couples happen to move away from the state where the marriage is permitted.

    Of those states which do not permit first-cousin marriages, a minority but at least several will refuse to recognize first-cousin marriages legally performed elsewhere. To the extent these public policy objections have been challenged in federal court it appears they have always been upheld. While we may find some disquiet in that area, my suspicion is that the court will inevitably have to consider the question of gender in application of the public policy exception and will conclude that because gender is a quasi-protected class, such an exception, based only on the gender of the individuals involved, would not withstand heightened scrutiny.

  • 129. RobW303  |  January 16, 2015 at 3:56 pm

    In short, he understands how Scalia and Thomas think.

  • 130. jdw_karasu  |  January 16, 2015 at 3:59 pm

    Given how promising the Fifth Circuit hearing went, you almost wish they went at Ponder Speed and issued something this week. The stay would have then been on the en banc process with another big "win" for our side. :)

  • 131. RnL2008  |  January 16, 2015 at 4:00 pm

    So, according to Andrew Basher, he feels that SCOTUS should take into consideration what the 6th wrote and let basically the people vote on one's right to marry……but here is my problem with letting the Democratic Process play out……..folks, people are stupid, all one has to do is look at the elections from November to realize that. The last Congress had the ALL time worst approval rating, but got reelected anyways…..how does that show that the people are capable of making sound decisions? Secondly, why should the people ONLY get to vote on the right to marry for Gays and Lesbians? I mean, shouldn't we get to vote on their right to marry, if they get to vote on our right to marry? If marriage is going to be voted on, then it should be voted on for EVERYONE, not just against those who want to marry someone of the same gender…….and if Marriage is in fact a FUNDAMENTAL right, why is it being voted on by ANYONE? People are scary in reality and though we are in the 21st century, the Electoral College remains in place because people really AREN'T as smart about the political process as some should be at this point in life. Hell, my grandchild understand the political process more than some folks from certain parts of this Country and that's obvious by who got elected and who continues to think they have a true shot at being the President.

  • 132. jasonut29  |  January 16, 2015 at 4:02 pm

    Wrongfully decided – seriously? Equal protection under the law doesn't just mean if you like the law! Its long overdue and will finalize a religious argument that has made no sense

  • 133. Brad_1  |  January 16, 2015 at 4:03 pm

    Ah, the life of Brian. Always look on the bright side of life.

  • 134. ianbirmingham  |  January 16, 2015 at 4:03 pm

    The legal theory for polyamory (see http://lovemore.com) has already been developed; click here:

    http://www.reddit.com/r/polyamory/comments/292o7u

    Regarding consanguinity, click here: http://marriage-equality.blogspot.com/

    and also here: http://cousincouples.com/

  • 135. sfbob  |  January 16, 2015 at 4:05 pm

    I'm sorry but that simply is not correct. All states don't recognize all licensed marriages. Fourteen states don't recognize licensed marriages performed elsewhere if both members of the couple are of the same gender. In fact in Kansas, despite a court ruling requiring the state to license and recognize the marriages of same-sex couples not all counties are issuing such licenses and the state continues to refuse to recognize even those marriages licensed and solemnized within its own borders.

    The recognition question is one of the issues which the court will hear.

  • 136. Mike_Baltimore  |  January 16, 2015 at 4:05 pm

    A major reason for 'religious freedom' bills to start gaining footholds in legislatures between now and late April (when SCOTUS is now scheduled to hold oral arguments on ME) is because now, not later, is when legislatures are meeting. In Indiana, the General Assembly began session on January 6, and continues until April 15; in Maryland, the General Assembly began session on January 14. and continues until April 13.

    Less than 1/2 the states have legislatures that meet beyond June 30, and even fewer have 'full time' legislatures. And almost all, just like the US Congress, do not allow the carrying over of a bill introduced in one session to be 'alive' in another session (the major exception would be the 'second' time a state constitutional amendment might need to be passed by the state legislature).

    So it's not surprising that 'religious freedom' bills are being now (or soon will be) discussed in many state legislatures, as now is the time those legislatures are meeting.

  • 137. RnL2008  |  January 16, 2015 at 4:05 pm

    Exactly……read my comment about Brian Browns head exploding after the ruling comes down against him and his fellow haters!!!

  • 138. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 4:08 pm

    If you look at the 6CA opinion (which still pisses me off, but happy that it's put us where we are now to get a final ruling from SCOTUS), it lists all of the cases, again, but docket number. In this instance as well, DeBoer v. Snyder is the earliest docket number, and with that, it is the named used across the rest of the document.

    I'm a betting man, and if I were to wager here, this consolidated case will take the earliest docket number from SCOTUS and go with it. So this historical ruling will henceforth be known as "OBERGEFELL vs. HODGES" for marriage equality.

  • 139. RLFraz  |  January 16, 2015 at 4:10 pm

    The 6th Circuit ruled that states can ban marriage between 2 people of the same gender. It was wrongfully decided. The original rulings were correct, IMHO, but the 6th Circuits overturning the rulings is incorrect.

  • 140. VIRick  |  January 16, 2015 at 4:11 pm

    Actually, it's tough to top "Loving v. Virginia," as even first-year law students are quick to see the double double-entendre inherent in the case name.

    This round, since we had "Love v. Pence" from Indiana, and still have "Love v. Beshear" from Kentucky, it's unfortunate that one of those two governors didn't carry the surname, Hate.

  • 141. Brad_1  |  January 16, 2015 at 4:11 pm

    Too bad. I would love this case to go down for all history as DeBoer v. Snyder, cementing Snyder's legacy as a bigot.

  • 142. Ryan K (a.k.a. KELL)  |  January 16, 2015 at 4:11 pm

    Hope for some state level rulings like in Arkansas?

    Gym for me, too!

  • 143. RLFraz  |  January 16, 2015 at 4:13 pm

    Your are correct, I was meaning that all states currently recognizes all licensed marriages between opposite sex couples. So to correct that…

    States currently recognize all Licensed ((ie., have a certificate of marriage), not common-law)opposite sex marriages. It does not matter if a 14yr female with parental permission marries her 22 yr old male cousin in LA in front of a JP. Any state in the union will accept that opposite sex marriage. They won't accept it if it is common-law.

  • 144. jdw_karasu  |  January 16, 2015 at 4:18 pm

    I don't think Rawlinson was as seriously considered as people thought at the time.

    It always felt like she got mentioned in the media in the (i) "he's going to pick a woman", and (ii) "he's black and will pick someone" mentality. The first was actually correct, and a lot of us had a pretty strong sense that would be the case. The second… frankly… was bullshit.

    On the flip side, most of the times that I saw Rawlinson name mentioned in pieces that actually took a substantive look at the records of the roughly 20 names being tossed around, her already brutal opinions were being pointed to. She tended to get dismissed as someone who would potentially bleed Democratic votes rather than sail through.

  • 145. RnL2008  |  January 16, 2015 at 4:18 pm

    Funny how the 6th got it RIGHT and the 4th, 7th, 9th and 10th got it ALL wrong…….both of these articles or essays clearly show why we SHOULDN'T be allowed to vote on people's right, like marriage, children or abortion or other highly personal decisions……..people who believe that Judge Sutton got it right is why they are so wrong…..and nothing you say will make them see ANYTHING differently!!

  • 146. Nyx  |  January 16, 2015 at 4:19 pm

    https://www.youtube.com/watch?v=4MISfS0m0KI

  • 147. RLFraz  |  January 16, 2015 at 4:19 pm

    Clarification…

    Just for some information regarding the wording of this question… States do recognize all LICENSED OPPOSITE SEX marriages, including those from other states and countries. States can/do decide whether or not to recognize "common-law" and religious only marriages. I have a friend that determines benefits for the VA and they have to go by which marriages the states recognize. She says it can be very difficult to determine marriages when they are common-law.

    I saw that people were questioning the consanguinity and age requirements, but states will accept LICENSED OPPOSITE SEX marriages regardless of whether it comports with the new states requirements.

    Licensed means having an actual marriage certificate issued from the state or country of celebration.

  • 148. F_Young  |  January 16, 2015 at 4:24 pm

    Ryan K: "Hope for some state level rulings like in Arkansas? "

    Good point. Yes, I guess we will be obsessing more about state court cases for a while.

  • 149. bayareajohn  |  January 16, 2015 at 4:29 pm

    And they got it from vaudeville.

  • 150. jdw_karasu  |  January 16, 2015 at 4:31 pm

    Agreed.

    It's actually a positive that this nonsense gets published in the "mainstream" where we have a nice record of it. It's so much nice that all this stuff happened in the internet era where a lot of it is easier to research. You know hard it is to research similar stuff on anti-miscegenation laws and cases?

    In contrast, people like Austin have exposed themselves nice for the world to see and generations to easily find and read. 😉

  • 151. Rick55845  |  January 16, 2015 at 4:37 pm

    You are mistaken, RLFraz.

    See this chart on cousin marriages by state on wikipedia. There are a number of states that void out-of-state marriages between first cousins:
    http://en.wikipedia.org/wiki/Cousin_marriage_law_

    I believe the same is true in some states regarding recognition of marriages entered into out-of-state where one or both parties are below the minimum age of consent in the state that the couple moves to. But I can't find a specific reference at the moment. If I find one, I'll post back.

  • 152. Jen_in_MI  |  January 16, 2015 at 4:39 pm

    I agree, my friend. No more waiting around!

  • 153. Rick55845  |  January 16, 2015 at 4:42 pm

    Brian is always looking for ways to keep the donations rolling in.

  • 154. Rick55845  |  January 16, 2015 at 4:46 pm

    RLFraz, I am not a legal scholar or historian, but sources such as wikipedia (admittedly not a definitive reference) say otherwise.
    http://en.wikipedia.org/wiki/Cousin_marriage_law_

  • 155. DEV_ally  |  January 16, 2015 at 4:47 pm

    Do we get our choice of single malt? I'm partial to Glen Morangie. :-)

  • 156. VIRick  |  January 16, 2015 at 4:48 pm

    "Some people in certain bigoted states of the Deep South are already sweating."

    Guitar, some people in certain bigoted states of the Deep South have been sweating this very issue for a long, long time. I know. I lived in Jacksonville FL for a while, and spent a lot of my free time aggravating them, so as to assist in helping them sweat even more.

    Now, seriously. I have no intention of reading this missive, as I can't get past the opening line:

    "Andrew Brasher is the Solicitor General of Alabama."

    If you're unfamiliar with the geography of the USA, reading this will merely confirm why many of us commonly refer to Florida's panhandle as South Alabama.

    To phrase it mildly, the entire court system in Alabama is atrocious. The Solicitor-General is the one who argues the state's defense in court. So, whatever he has to say will not be new news. And it won't be pretty, either.

  • 157. Rik_SD  |  January 16, 2015 at 4:54 pm

    totally unrelated- is that profile pic really you? holy hell.

  • 158. VIRick  |  January 16, 2015 at 4:58 pm

    "…. people are stupid …. "

    Rose, you just brilliantly summarized THE basic, most fundamental flaw inherent in the so-called "democratic process."

    I love your style of being so blunt about it.

  • 159. Rick55845  |  January 16, 2015 at 4:58 pm

    Ha! I think you're right. I'm having some wine now, and in a much more relaxed state of mind. Just celebrating being a few months away from victory, you know.

  • 160. StraightDave  |  January 16, 2015 at 5:04 pm

    I always thought they were going after the Prop 8 standing issues from the get go, since that was a very weak leg to stand on. That was most definitely a substantial federal question.

  • 161. VIRick  |  January 16, 2015 at 5:06 pm

    Hey Zack, someone has to scratch Sutton's hemorrhoids for him when he gets that insatiable itch. It may as well be Austin Nimocks.

  • 162. Zack12  |  January 16, 2015 at 5:07 pm

    I did look it up and it does appear you are right.
    Goes to show you how thin our bench was though that she was ever considered.

  • 163. StraightDave  |  January 16, 2015 at 5:09 pm

    The 4 RATS probably correctly sensed that Kennedy was lost to them and they didn't want to have this thing come to a vote on the merits any earlier than absolutely necessary. Those earlier denials were intended just to stall.

  • 164. RnL2008  |  January 16, 2015 at 5:10 pm

    Well, thank you…….but it does appear to be a true assessment……I mean, people complained about certain issues NOT being handled, then turned around in 2010, and gave control to the Republicans, in 2012, Dems kept the White House, even with all that the Republicans tried to do to help Romney get elected……now in 2014, we see that Republicans got reelected 90%, even though they had an approval rating of less than 12% and failed to do their jobs…..and then someone like Judge Sutton claims we should allow these same folks to make my personal decisions or choices for me…….not only NO, but HELL no!!!

  • 165. RLFraz  |  January 16, 2015 at 5:22 pm

    Traditionally, every state honored a marriage legally contracted in any other state.
    https://www.google.com/url?sa=t&rct=j&q=&… and http://law.jrank.org/pages/7048/Full-Faith-Credit

  • 166. StraightDave  |  January 16, 2015 at 5:35 pm

    Boy, that 'Bama dude really hit the nail on the head. He does know what he's talking about. Must have been looking in the mirror.

    "It is another thing entirely for a court to hold that a state policy is so wrongheaded as to be beyond reason, even though it infringes no fundamental right and affects no suspect class… [This] kind of ruling indicts the state’s decision-making process itself as dysfunctional at best and, perhaps, malicious."

  • 167. Rick55845  |  January 16, 2015 at 5:53 pm

    Except that there are some actual court cases over the past 65 years that prove otherwise.
    http://en.wikipedia.org/wiki/Cousin_marriage_cour

  • 168. RLFraz  |  January 16, 2015 at 6:06 pm

    Rick55845, you are wrong. That link does not say anything about recognition of out of state marriages. It just tells what states allow cousins to get married in that state. Even the the map says "1Some states recognize marriages performed elsewhere, especially when the spouses were not residents of the state when married.clarification needed" as a footnote.

  • 169. scream4ever  |  January 16, 2015 at 6:18 pm

    Not necessarily. Both sides for Texas in the 5th Circuit cases have asked for them to rule even if cert was granted by the Supreme Court.

  • 170. SethInMaryland  |  January 16, 2015 at 6:34 pm

    no , however Mary Bonuto has argued the case in Massachusetts that led to marriage equality, also in Connecticut to marriage, she argued the vermont case which ruled that state must chose either legalize marriage or civil unions, and she also argued turner vs gill the federal challenge to doma in Massachusetts , she's has pretty good win rate when it comes to marriage equality cases

  • 171. flyerguy77  |  January 16, 2015 at 6:44 pm

    I just watched Rachel Maddow on MSNBC and she kept saying there is a chance that SCOTUS might uphold 6th COA's decision. Personally, I'm not seeing that at all because they refused to hear appeals from 4th, 7th, and 10th, and denied stays in other cases relates to marriage equality, not relisted them or put them on a hold when they had a different decision like 6th COA. I have a question has SCOTUS ruled/ uphold a lower court's decision when the decision was a split decision within other circuits and effected a civil right of other people?? The questions that SCOTUS will be addressing is a good sign because some of justices realize that it's not new right, just extending civil rights to other people like marriage..

  • 172. flyerguy77  |  January 16, 2015 at 6:44 pm

    is that true?

  • 173. franklinsewell  |  January 16, 2015 at 6:55 pm

    There is always a chance, but I think it very unlikely.

  • 174. franklinsewell  |  January 16, 2015 at 7:04 pm

    SCOTUSBlog allowed the Alliance Defending Freedom to write a piece for the mini-symposium on SSM. Here's what I wrote to the SCOTUSBlog editor:

    —-

    I have been a faithful reader of SCOTUSBlog lo these last many months, but I must express a bit of frustration.

    2 out of 3 articles in your mini-symposium thus far today came from those arguing that bans on same-sex marriage are constitutional.

    I hope this trend does not continue. I find you allowing the Alliance Defending Freedom to spew their radical religious-right claptrap on your blog most disturbing.

    If I do not see at least equal coverage of both sides, I will immediately cease viewing SCOTUSBlog forever.

  • 175. weshlovrcm  |  January 16, 2015 at 7:31 pm

    This is the same false prophet who said (paraphrasing) that pro-equality Americans would be forever sorry for the day they took the Prop. 8 challenge to the Supreme Court. Low hanging fruit anyone?

  • 176. Tony MinasTirith  |  January 16, 2015 at 7:47 pm

    I noticed the re-wording immediately. The re-wording really made me concerned about a final victory. What I noticed is that they didn't ask or infer a question of a fundamental right to marry for same sex couples. Instead the questions ask if the constitution compels the states to do something. It almost seems to me that it would be easier for Kennedy (who's all about states rights) to answer in the negative that a state is compelled by the constitution to do something, than it would be for him to say NO, homosexuals do NOT have the same fundamental rights as heterosexuals. Perhaps, I'm just reading too much into the questions, and perhaps in order to grant cert this term, the liberal wing agreed to these questions that seem more about states rights that were posited by the conservative wing. It's almost as if the right wing wants to force Kennedy to say HE interprets the constitution to compel states do do something against their public policy if he wants to allow nationwide marriage equality. It sounds like the right wing of the court wants to force the left wing into a corner position of "forcing" states to do what they'd rather not, in order to then turn around and criticize a majority who says "yes" states must do, such and such….they'll say it's the end of democracy and a usurpation by the unelected Supreme Court to impose and make law from the bench…or judicial Tyranny. I really hope I'm wrong. I think I would have rather seen the question: "Are same sex couples entitled to equal protection and due process under the 14th amendment, and do the states bans violate a persons rights to liberty, privacy and personal choice

    I do not like these questions as the court framed them: they're framed around states rights instead of an individuals rights to equal protection, due process and liberty interests. I hope I'm 100% wrong and that Kennedy and Ginsburg have good reasons to frame these constitutional questions as is and will answer in the affirmative to both. It will be interesting to see how the split comes down. If it's 5 or more that say NO to both questions, we're SOL for another 25-50 years and will probably see all but a dozen states reverse course.

    As for splitting the baby, it could only happen one way…No on question 1 and Yes on 2. It would be pointless and illogical to say Yes on 1, and No on 2 because Yes on 1 would mean states must issue marriage licences and SS couples married elsewhere would just have to go and get a new license in their home state (and pay another $20 to $100). Not ideal, but who's going to complain that much as long as they're able to be married in their home state.

  • 177. bythesea66  |  January 16, 2015 at 7:55 pm

    There is some possibility that they might say no to 1 and yes on 2, but there are many reasons I think that unlikely and that it seems likely to be a yes to both. However I think there is almost no plausible likelyhood of a no on both simply based on previous chosen behavior of the court.

  • 178. DEV_ally  |  January 16, 2015 at 7:59 pm

    There's a chart below the map that breaks thing down as to whether a state permits first-cousin marriage, recognizes out of state first-cousin marriages, sterilization requirements, etc.

  • 179. Tony MinasTirith  |  January 16, 2015 at 8:00 pm

    I kind of hope Robbie Kaplan will be one of the attorney's arguing. I listened to all the attorney's at the 5th last week and to the arguments on Prop 8 and and Windsor. Kaplan seemed stronger to me than Olsen did. When Scalia asked Olsen, exactly when did SSM become a fundamenal right, Olsen flubbed, and didn't and couldn't answer the question. When Robbie was asked tough questions, she answered with alacrity, on point and never seemed flummoxed, or surprised. She had an immediate, concise clear and succinct answer for anything the judges threw at her. While I appreciate all the work of Boise and Olsen and winning ME for CA, Olsen's big argument was about the government building an impermissible "fence" around same sex couples. I just don't think that's the strongest argument out there. She also won the Landmark Windsor Case as well.

    At this point, whomever goes in front of the SCOTUS on these two questions, I hope they don't concentrate on their own arguments, but instead look at what the judges in favor of ME on the panels of the 4th, 7th (especially Posner), 10th and 9th, (and maybe/hopefully the 5th), said. These justices really had some great arguments in favor of ME, as did the district court judges. I especially liked Posner, and Hinkle's argument that marriage is NOT a zero sum game.

  • 180. Tony MinasTirith  |  January 16, 2015 at 8:09 pm

    I agree 100%. Based on the denials of cert in October, and the subsequent denials of stay, I can't see how they'd now affirm a state has the right to ban marriages. I just don't like how the questions were framed that yes on those questions says that state MUST do this or that. That just gives too much for the desenting justices to grab on to.

  • 181. Zack12  |  January 16, 2015 at 8:17 pm

    Kaplan has more experience in arguing these cases, since she's been doing this since 06 and has learned from her loss when she argued for gay marriage in NY.

  • 182. VIRick  |  January 16, 2015 at 9:16 pm

    sfbob, actually, it's only 13 states which do not recognize pre-exisiting legal marriages between couples of the same-sex, performed in other jurisdictions. Remember, Missouri does recognize such out-of-state marriages, even if there's still a lingering question there regarding state-wide in-state performance.

  • 183. davepCA  |  January 16, 2015 at 9:20 pm

    Think nothing of it. We sometimes have some lurking anti-gay folk who do nothing but vote down comments.

  • 184. davepCA  |  January 16, 2015 at 9:26 pm

    Yes, it seemed clear that in the Prop 8 case, SCOTUS was not eager to answer the question about constitutional compliance of laws banning marriage for same sex couples and set a nation-wide ruling (and obviously, they didn't do that). They granted cert in the Prop 8 case so they could make it very clear that defendant intervenors did not have standing to appeal when they lose in the lower courts.

  • 185. davepCA  |  January 16, 2015 at 9:32 pm

    There ya go, that's the spirit!

  • 186. davepCA  |  January 16, 2015 at 9:41 pm

    Yes.

  • 187. sfbob  |  January 16, 2015 at 9:51 pm

    You're right; I'd forgotten about Missouri.

  • 188. sfbob  |  January 16, 2015 at 9:56 pm

    Traditionally yes (for the most part; three states do not recognize first cousin marriages legally contracted out-of-state and a somewhat larger refuse to recognize such marriages if one partner was an in-state resident when the marriage took place). But then WE came along and suddenly states were beside themselves putting up barriers to recognizing a certain class of marriage. The animus was particularly obvious where a statute or constitutional amendment had the effect of amending a prior statute that specifically mandated that their state would recognize any out-of-state marriage even if such a marriage could not legally be performed in-state. That happened in Oklahoma at the very least and, if I remember correctly, in several other states as well. And that particular piece of information was cited widely here and at other pro-equality sites.

  • 189. Wolf of Raging Fires  |  January 16, 2015 at 10:14 pm

    I had the same concern, Dave.

  • 190. Wolf of Raging Fires  |  January 16, 2015 at 10:18 pm

    WIGGLE

  • 191. Zack12  |  January 16, 2015 at 11:27 pm

    Judge Black, who ruled for us in Ohio noted the fact that while Ohio forbids certain types of marriages, if they are perfomed else well they are recognized with the exception of one group and one group alone.
    The LGBT community and as the judge noted, there is no other reason to do that then animus.

  • 192. ianbirmingham  |  January 17, 2015 at 12:00 am

    It's just a few states though – Arizona, Utah, New Hampshire and Maine. These are outliers and they will probably be forced to get back in line after the Supreme Court issues its ruling. All the others recognize out-of-state marriages between people who are cousins.

  • 193. ianbirmingham  |  January 17, 2015 at 12:17 am

    If I recall correctly, they have actually said exactly that already in previous marriage-related cases. States don't have to have a system of marriage licensing, but if they do have one then they can't unconstitutionally discriminate against applicants.

    Marriage is a fundamental right, and regulating marriage is primarily a state responsibility. In theory they might just decide not to lift a finger (in other words, make no attempt to regulate). But as a practical matter, such a decision would instantly produce chaos and the pressure to regulate and thereby restore order would be irresistable. So de facto the states do have to issue marriage licenses, and they have to do that within the constitutional limits of due process and equal protection, etc.

  • 194. VIRick  |  January 17, 2015 at 1:05 am

    "…. This] kind of ruling indicts the state’s decision-making process itself as dysfunctional at best and, perhaps, malicious."

    Dave, my only quibble with that statement is that the word, "perhaps," ought to be removed from it. There's no "perhaps" to state-sanctioned maliciousness in Alabama.

  • 195. NorthernAspect  |  January 17, 2015 at 5:35 am

    Maybe the second question regarding recognition of other state marriages is so that the Conservative members of the Court can save face and not go down in history as a bigot.

  • 196. ianbirmingham  |  January 17, 2015 at 5:52 am

    For question 2 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/

  • 197. wes228  |  January 17, 2015 at 6:13 am

    The public policy exception is only for the Full Faith and Credit Clause, which is not a component of this case.

  • 198. RQO  |  January 17, 2015 at 6:40 am

    "Every argument known" – apparently you are correct. I was very nervous several months ago that some brilliant, high powered appeals lawyer would find a better anti-ME argument, but that didn't happen. They're still stuck on variants of Regnerus, and just plain animus. So glad Friedman's De Boer trial record and ruling is part of the mix.

  • 199. sfbob  |  January 17, 2015 at 7:00 am

    The Court can do whatever it wants to do of course (see Citizens United as an example of them answering questions not posed) but it seems unlikely to me, based on the two questions they presented, that they would rule on the constitutionality of first cousin marriages or on age of consent laws or the like. There are, one would think, other, independent reasons for states to refuse recognition to such marriages and those reasons would have to be addressed.

  • 200. sfbob  |  January 17, 2015 at 7:16 am

    Now there is a fourth piece in the symposium, this one also favoring marriage equality.
    http://www.scotusblog.com/2015/01/symposium-unvei

    The piece seems to address many of the concerns we've expressed above.

  • 201. ianbirmingham  |  January 17, 2015 at 7:50 am

    They won't rule on those questions directly, agreed. But these are closely related questions that will be affected by legal developments in this case. If the much-criticized "Public Policy Exception" to the Full Faith and Credit Clause is declared unconstitutional, then that would enable slam-dunk civil suits against these outliers which would force them to immediately recognize cousin marriages that have been legally celebrated elsewhere.

  • 202. RLFraz  |  January 17, 2015 at 7:55 am

    I have a question regarding precedent. Seeing as Romer and Lawerence and Windsor have all established that LGBT is innate and LGBTs have a right of association, right to engage in "immoral" (I don't believe it to be immoral) behavior/relations, the right of privacy and the fundemental right to marriage, don't the judges have to follow precedent?

  • 203. guitaristbl  |  January 17, 2015 at 8:13 am

    Of course there is a chance, that's why I said let's be prepared for everything. This is such a hero or zero situation, it's pretty scary. We either go to 50 or, worst case scenario, back to 17 with thousands of marriages on the air and huge legal and emotional turmoil. Is it very likely for judges to do that after allowing marriages to go on essentially in a total of 36 states ? No, not very likely. But they point is not if they will but that they can. It will be irresponsible and will highly damage the dignity of the Roberts court but yes they can do. Rachel is correct to point out that possibility always. Schuette is a Kennedy decision from a year ago and its wording is still very dangerous for our case.

  • 204. ianbirmingham  |  January 17, 2015 at 8:45 am

    You are wrong about that. Question 2 involves the application of the Full Faith and Credit Clause to the states, via the 14th Amendment which applies the entire Constitution to the states (in addition to the federal government).

  • 205. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 8:47 am

    I know there is a "chance" per se, but as you note, the cruelty of this court would be astounding to allow the various circuits to move forward with their decisions, and especially in Florida by which they gave the approval to proceed.

    I think it would have been more likely to have SCTOUS summarily reverse the 6CA and overrule them reinstating the rulings from the district court than to uphold the 6CA in this granting of cert. But even more likely (and what will happen) is the SCTOUS having oral arguments and reversing the 6CA via a divided 5-4 opinion written by Justice Kenndedy (which a very, very, very slight chance of 6-3).

  • 206. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 8:49 am

    I'd be happy to WIGGLE more on your behalf for you (I'd just need a have a few gin and tonics to get warmed up for me).

  • 207. Zack12  |  January 17, 2015 at 8:49 am

    Indeed, I think Florida was the big tip off on how they will rule.
    And I also don't think there will be a spliting of the baby.
    We are well beyond that point, it will be all or nothing.

  • 208. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 8:53 am

    While I'd love the SCOTUS to abide by stare decisis in looking at the precedent of Romer / Lawrence / Windsor, I fundamentally believe that the RATS will simply see this as a holistically different question being presented and ignore those cases. If anything,Matheus probably look at Baker and use the practice of stare decisis saying that controls as precedent!

  • 209. ianbirmingham  |  January 17, 2015 at 8:57 am

    Odds of a 6-3 on Question 1 are pretty good. On Question 2, 5-4 is more likely.

  • 210. F_Young  |  January 17, 2015 at 9:14 am

    RLFraz: "…don't the judges have to follow precedent?"

    IANAL, but the short answer is, no, SCOTUS is not bound by precedent. For example, in Lawrence v Texas, it explicitly overturned Bowers v Hardwick.

    Take note that if a single moderate conservative Justice were to be replaced a single hard core conservative, SCOTUS could wipe out huge areas of its own case law, including most LGBT rights.

  • 211. Fledge01  |  January 17, 2015 at 9:17 am

    The Court knows that you cant have a no on 1 and a yes on 2. Any answer yes on 2 means that everybody can get married (at least by traveling out of state) and when in their home state, that marriage will be recognized. Its either yes on both or no on both. I don't see any way for the court to rule no on 2 the way people travel and move so much these days. Perhaps we still traveled by horse and never moved out of our little towns, perhaps, but not in todays modern world.

  • 212. ianbirmingham  |  January 17, 2015 at 9:32 am

    Those relate to the much-criticized and ill-defined "Public Policy Exception" to the Full Faith and Credit Clause, which is at issue in Question 2 of this case and will most likely be held unconstitutional in this case. Afterward, cousin couples can file slam-dunk civil suits against the small number of states that don't recognize legally valid cousin marriages from elsewhere.

  • 213. andrewofca  |  January 17, 2015 at 9:50 am

    The Supremes can overturn their rulings. A great example of this is Bowers. Had they not overturned Bowers in Lawrence, we wouldn't have come this far today.

    Of course, I'm hoping they follow precedent, and expect they will, in particular given that it is the same 9 judges from Windsor.

  • 214. Wolf of Raging Fires  |  January 17, 2015 at 9:56 am

    Lol. Well, I already wiggled plenty before and no one saw it. So I guess I have to do it again, LOL.

  • 215. 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!!!!!!

  • 216. Zack12  |  January 17, 2015 at 10:00 am

    Indeed… that is my biggest fear going foward.

  • 217. Wolf of Raging Fires  |  January 17, 2015 at 10:00 am

    Matheus???

  • 218. ianbirmingham  |  January 17, 2015 at 10:08 am

    Besides gerrymandering, another major cause is the lack of voter turnout: Lowest turnout since WW2…turnout in these [2014] midterms was the lowest overall in 70 years. Turnout of the voting-eligible population was just 36.4 percent…
    http://www.pbs.org/newshour/updates/2014-midterm-

    Republicans know that most people oppose their fellate-the-wealthy policies, and that's why they do everything possible to reduce voter turnout with negative advertising, voter ID laws, and so on. If the US had the voter turnout of France (71.2%), Iceland (68.9%), Finland (67.5%), Mexico (64.6%) or South Korea (64.2%), the Republican party would be pulverized.

    http://qz.com/24186/58-countries-with-better-vote

  • 219. Rick55845  |  January 17, 2015 at 10:09 am

    I agree that a "no" on question 2 isn't going to happen, and isn't even possible. But tell me how the answer to question #1 can possibly be yes. The answer to #1 is no, unless some aspect of the 14th amendment ties it to some other part of the constitution that mandates than a state must license and regulate marriage. I'm aware of no such thing.

    But then, I'm not a constitutional scholar or a Justice. The Justices somehow manage to pull unexpected rabbits out of their robes from time to time, applying reasoning that ties together nebulously related elements of the constitution in ways that yield results I'd never have expected.

    So I hope I'm wrong about the answer to #1 after all, and that it is somehow a yes. :)

  • 220. Zack12  |  January 17, 2015 at 10:29 am

    The sad part is if our base had turned out in NC,CO,AK etc we would have kept those seats.

  • 221. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 10:37 am

    Wow, spell check turned "the RATS" into Matheus.

  • 222. Lymis  |  January 17, 2015 at 12:07 pm

    Seems to me that the focus on the 14th actually forces them to declare it one way or the other. The 14th specifically requires the states to grant the same benefits to all of their citizens.

    If same-sex marriage is "marriage" and is just a question of whether a state can deny it to some citizens but not others, then the 14th Amendment forces them to do so.

    If same-sex marriage is an entirely different thing, a new thing that's just been invented a decade or so ago, then the fact that a state allows all its citizens to marry, but not to same-sex marry doesn't violate the 14th – nobody is being denied a right that anyone else is being given. (Though interstate recognition of a validly contracted marriage might be a different matter).

    So I don't see how they can decide this without declaring whether marriage is marriage or whether gay couples are doing something entirely different.

  • 223. Tony MinasTirith  |  January 17, 2015 at 12:20 pm

    The answer to both questions is No. The 14th amendment does not require a state to issue marriage licences or to recognize marriages from other states… for same sex OR opposite sex couples. However the 14th amendment does require that states treat its citizens, including same sex and opposite sex couples, equally and it also affords both same sex and opposite sex couples the same due process b4 a right, fundamental or otherwise, is rescinded. The 14th amendment was not written, nor can it be construed to protect only heterosexuals. So when the state chooses to issue marriage licences or legislate marriage regulations, the 14th amendment says it must do so on an equal basis to all citizens. The 14th amendment does NOT allow a state to discriminate on the basis of sex or sexual orientation, race or religion. Remember, All men (and likely women) are created equal and are endowed with certain inalienable rights…not just heterosexual men, not just white men and not just heterosexual white landowner men. The 14th amendment does not allow for a majority to give itself a right that it would deny to a minority just by virtue of a vote of the majority. That is the definition of an unjust law. The United States is a Constitutional Republic not a Mob Democracy in case some have forgotten their civics 101. So, where does this leave us? When a state chooses to issue marriage licences and then regulate marriages within it's borders, the 14th amendment of the US constitution, the highest law in the land, compels states to issue those licences to all eligible couples, hetero or homo , or non sexual, on an equal basis and must also recognize marriages legally entered in other jurisdictions with no regard to the couples sex, sexual orientation, (or proclivities, or lack there of). Just as the 14th Amendment would not tolerate a state law enacted by a majority that licences a heterosexual to drive, but bans a homosexual from obtaining a drivers licence, so it does not allow for this invidious discrimination in marriage. The judgement of the sixth circuit is VACATED.

    Thus, SCOTUS has not changed any definitions, and it has not declared any "new" rights. The Court does not even impinge on a state's right to regulate domestic relations. The court does remind the states however that they are NOT above the Constitution and are enjoined from enacting legislation that denies a US Citizen's right to equal protection and due process, in other words, passing Unconstitutional laws. They also remind the state to do what they should know they should do; to treat it's citizen with respect and to treat all men and women equally in all regards as per the 14th amendment to the US Constitution. And remember, it is the SOLE purview of the Supreme Court to determine what is and what is not constitutional, not a legislature and NOT a temporal majority.

    Oh, and BTW, Baker is now and forever overruled by virtue of the TWO SUBSTANTIAL Federal questions in these proceedings.

  • 224. ianbirmingham  |  January 17, 2015 at 12:44 pm

    You are mistaken. The Bourke case, whose questions presented on appeal most closely resemble the SCOTUS questions, appeals a 6th Circuit decision that relied heavily on FF&C regarding Question 2.

  • 225. ianbirmingham  |  January 17, 2015 at 12:46 pm

    That isn't how it works. Full Faith and Credit is necessarily intertwined with the 14th Amendment in Question 2. Moreover, the Court is free to consider any grounds it wants to, sua sponte.

  • 226. Wolf of Raging Fires  |  January 17, 2015 at 1:03 pm

    Hahaha!

  • 227. Wolf of Raging Fires  |  January 17, 2015 at 1:04 pm

    Oh, stop. You don't know what you're talking about.

  • 228. flyerguy77  |  January 17, 2015 at 1:15 pm

    Since yesterday morning when US Supreme Court announced that they will be hearing all of cases from 6th Circuit of Appeals decisions, where they SAID ITS constitutional to ban same-sex couples to get married, I have been thinking what it means in the long run..
    When the court announced their decision they want to answer these questions..

    Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
    And
    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?
    There are a lot of opinions are flying all over the place now because of it. In my honest opinion, they already made their future decisions public before the final briefs are filed and oral arguments because of the last few months.. In October they rejected appeals from Utah, Indiana, Wisconsin, Oklahoma and Virginia where the Circuit of Appeals already upheld the lower court’s decisions– It was unconstitutional for the states to ban same-sex couples to get married. After the rejected appeals there are series of decisions from 9th Circuit of appeals and lower federal courts’ decision where they said its unconstitutional to ban “same-sex marriages” under US constitution. These cases were not stayed after US Supreme Court denied a stay from the states and same sex couples were allowed to get married. In December the Supreme Court denied a stay for Florida where a federal court judge ruled it was unconstitutional to ban same sex marriages in August. His stay expired on Jan 5th, and 11th Circuit of Appeals denied a stay for Florida. That’s an eye opener for everybody because most of people thought the Supreme Court would have granted a stay throughout the appeal process. That’s the huge tipping point and everybody said/ thought the court is giving the lower court and public signals this decisions are correct. Taking 6th COA case decision signals the Supreme Court thinks 6th Circuit got it wrong. That’s my opinion..
    For the questions the simple question is No the fourteenth Amendment does not says a state must be required “license a marriage” between two people of the same-sex. There is nothing in 14th Amendment about licenses for marriages.. including opposite sex married couples its SAME thing for 2nd question NO, however, All of lawful opposite sex marriages are recognized when the marriages were lawfully licensed and performed out- of-state.
    The questions were written in a way that other side, who is fighting the marriage equality battle, can’t scream and tell the Supreme Court that the lower courts are creating new rights for same-sex marriages.. That’s my opinion of course.. There are 14 Supreme Court decisions state that getting married is a fundamental right under 14th Amendment for everybody who are lawful able to including people who are on death rows, people who are in prison for life, disabled, and etc. Will that includes same-sex couples?
    THIS IS MY OPINION
    As now, there is a 80% chance they will be reversing the 6th Circuit’s, 10% chance they will uphold the decision, and other 10% throw back to 6th Circuit. I might change my mind after the oral arguments..

  • 229. Tony MinasTirith  |  January 17, 2015 at 1:21 pm

    I think your 80% chance is the correct OPINION. That's my OPINION

  • 230. jjcpelayojr  |  January 17, 2015 at 1:25 pm

    I wish one of those questions specifically addressed Section 2 of DOMA since I can only assume that anti-marriage equality opponents will likely use and justify Section 2 of DOMA as part of their argument as to why states should be allowed to not recognize marriages of the same sex performed outside the state.

    Jesse

  • 231. HongKongGuy  |  January 17, 2015 at 3:36 pm

    Hello everyone. This is my very first comment here! I have been a silent follower of this site for the past 2 years. Before saying anything it is polite to introduce myself. My name is Peter and I am a 54 year-old British guy who has been living and working in Hong Kong for the past 7 years. I work for my own company as a consultant and also work in the local media here. I live with my partner Wayne and we have been together for the past 19 years.
    So here is my observation: I am delighted that the Supreme Court will finally take up the issue of marriage equality and will hopefully decide the issue in your favour once and for all. But like some other commentators here I am also intrigued by the way that the Supreme Court has reframed the issue away from being about an individual's right to marriage to one of state rights instead i.e. is the state obliged to issue a licence to same-sex couples rather than do same-sex couples have the right to marry. Clearly the question has been carefully crafted this way for a reason. I have seen several explanations for this particular framing of the issue but I have a slightly different suggestion as to why this has happened. We know that one of the (ludicrous) arguments made by the opposing states has been that if gays are allowed to marry why not polygamous marriages, marriages between brothers and sisters, people marrying their pets etc. Framing the question this way is the same as asking are their limits and proscriptions that states may put on marriage. The answer is clearly yes and states do have the right to reasonably restrict who they issue marriage licences to. However, denying marriage licenses on the basis of sexual orientation is not one of them. A state can perfectly reasonably deny a marriage license or driving license to a child but not to a gay couple. Framing the question this way leaves states authority intact and doesn't go around one of the holdings in Windsor whilst at the same time a positive ruling for gay couples doesn't open the door to all the other "parade of horribles". This framing of the issue seems to have Chief Justice Roberts fingerprints on it and I wonder if this is the compromise required whereby he jumps on board and you get a 6-3 ruling instead of a narrower 5-4 one? I seem to remember the Chief Justice raising this concern over where do you draw the line before in one of his dissents. So my prediction (and hope) is you get a 6-3 or possibly even 7-2 vote in favour on both questions.

  • 232. Ryan K (a.k.a. KELL)  |  January 17, 2015 at 4:04 pm

    First off, welcome to EoT as a contributor – we are glad to have you here!

    Agree on your statement regarding some states not recognizing first-cousin marriages where it is legal in the state where it was celebrated. That's the interesting thing about the two questions, as if they rule #1 is a fundamental right given the 14th amendment, #2 has to hold as well because why would you not recognize a marriage from another state when you allow that type of marriage to be performed in your own state? In my mind, Q#2 really is only applicable if somehow Q#1 is not decided in our favor.

  • 233. ReadLearn  |  January 17, 2015 at 4:12 pm

    I agree with you Rick. I am glad to see that this has already been brought up. I was wondering how the cousin marriages would affect this, because you are absolutely correct, that some states do not recognize legal cousin marriages performed in other states. This is going to be interesting.

  • 234. ReadLearn  |  January 17, 2015 at 4:13 pm

    This has already been tried, unsuccessfully, as Rick points out.

  • 235. ReadLearn  |  January 17, 2015 at 4:14 pm

    No, not 1st cousin marriages – Those were not/ are not being honored in some states, even if they were performed legally in other states. Rick is correct. Click on his link.

  • 236. ReadLearn  |  January 17, 2015 at 4:16 pm

    I'm not sure if it will freeze. The 5th may proceed with the ruling.

  • 237. ReadLearn  |  January 17, 2015 at 4:21 pm

    That could happen in theory, but no state will stop issuing marriage licenses. They want weddings to happen in their state, for many reasons.

  • 238. FredDorner  |  January 17, 2015 at 4:26 pm

    Brian Brown has 5 more months of income. What's his next job going to be?

  • 239. ianbirmingham  |  January 17, 2015 at 4:50 pm

    "Village Idiot", of course!

  • 240. ianbirmingham  |  January 17, 2015 at 4:54 pm

    And we would have kept the Senate, and Obama could have appointed 2 more years' worth of better quality federal judges. Big, big penalty for staying home on election day.

  • 241. F_Young  |  January 17, 2015 at 5:21 pm

    Congratulations on posting here for the first time, HongKongGuy, and thanks for the little bio you gave.

    I don't like the questions, but I tend to agree that they may have been posed this way so as to gather support from Justices that favor state rights.

    However, I really hope that Ginsburg and other marriage equality supporters don't let the case get highjacked by opponents of marriage equality who seek to keep the decision as narrow and inconsequential as possible.

    If need be, I hope Ginsburg and any allies publish a strongly worded and argued separate opinion that concurs in the result (provided it is yes to both questions)

  • 242. ChrysT17  |  January 17, 2015 at 6:24 pm

    Does anyone here have an idea as to the likelihood of the 5th going ahead with a ruling?

  • 243. VIRick  |  January 18, 2015 at 12:01 am

    "Oh, stop. You don't know what you're talking about."

    Hey Wolf, I'll drink to that. The Supreme Court just presented the two questions to which they want both sides to answer. If they had wanted any other questions answered, they would have said so, right here and now, in the granting of certiorari. So, presenting any argument on different grounds will not satisfy the Court. It's a vain, useless exercize, and wastes everyone's time.

    If one were an attorney answering questions before the Court which weren't asked, one would surely lose the case, no matter how brilliant one thought one's responses might be.

  • 244. VIRick  |  January 18, 2015 at 12:09 am

    Ian, the 6th Circuit's decision is a piece of shit. Stop focussing on it. The Supreme Court has already overturned Sutton by limiting argument to the 14th Amendment.

  • 245. flyerguy77  |  January 18, 2015 at 12:21 am

    Awesome I agree!!!!!

  • 246. flyerguy77  |  January 18, 2015 at 12:26 am

    Maybe after the decision, I have a really good feeling about it, Brian Brown will come out of the closet. we know he is gay!!!!!!!!!!!! lol

  • 247. RnL2008  |  January 18, 2015 at 12:41 am

    Oh I think Brian Brown, Tony Perkins and the other anti-gay bigots will be popping their brains because SCOTUS ruled against them……..I've already read a couple of articles on SCOTUS.blog that these idiots believe the 6th got it RIGHT and the 4th, 7th, 9th and 10th OVER reached their judicial authority and became ACTIVIST Judges…….lol!!!

  • 248. flyerguy77  |  January 18, 2015 at 12:46 am

    I totally agree with you that they will be going NUTS after the decision.. That'd be awesome to see,.. They are dreaming lol If 6th got it right why F^^^%&^ SCOTUS didn't stop lower court decisions….. lol

  • 249. RLFraz  |  January 18, 2015 at 5:22 am

    IANAL, but I think they have to address the second question, as it was brought up in a couple of the cases.

  • 250. wes228  |  January 18, 2015 at 6:44 am

    What is it with your Full Faith and Credit Clause fetish?

  • 251. wes228  |  January 18, 2015 at 6:47 am

    The 14th Amendment does not apply the entire Constitution to the states (it does not, for instance, apply the 7th Amendment to them). The FFC Clause is not applied to the states via the 14th Amendment. It exists as a standalone clause that says what must be recognized between states and on what terms (determined by Congress).

  • 252. Wolf of Raging Fires  |  January 18, 2015 at 7:03 am

    Thumbs downs cannot stop my wiggles!!!

    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!!!!!!!!!!!!!!

  • 253. andrewofca  |  January 18, 2015 at 8:56 am

    Indeed indeed. Wouldn't even have to be a hardcore conservative, just someone who sees gay issues differently.

    Take Kennedy for example. While I love him for his record on protecting LGBT citizens, his record on women's and other minority rights is less than stellar. Over 20 years he has actively voted to hollow out affirmative action and pro-choice rulings.

  • 254. ianbirmingham  |  January 18, 2015 at 1:23 pm

    http://youtu.be/QEPekZlm4sw

  • 255. Wolf of Raging Fires  |  January 18, 2015 at 2:56 pm

    Thank you. I'll take that drink anytime, sir!

  • 256. AndresM11  |  January 19, 2015 at 7:04 am

    Hi guys!

    I was just passing by to CONGRATULATE each and every one of us for being one step closer towards full marriage equality! God knows it's been quite a long legal fight but right now we're just a step away of achieving the dream of millions of LGBT people that have come before us!

    It's been amazing to share this process with all of you and I'm really looking forward to this following months!

    By the way, I was in Florida on Jan. 6 when Judge Hinkle's injunction went into effect! It was a great vacation in Miami and Orlando :) and being able to watch that in the TV was the icing of the cake :) (or "the cherry in the ice cream" as we say here hehe). I live in probably one of the most bigoted countries in South America so being able to watch same-sex couples declaring their love and sharing that unbelievably happy moment was priceless!

    Anyway, congratulations for that historic Cert. grant last friday! We're soooo close to reaching our goal :)

    PD: Wiggle! 😀

  • 257. Equality On TrialLawyers &hellip  |  March 17, 2015 at 12:27 pm

    […] that the Court, in its order granting review in the cases, allowed for 90 minutes of argument time on the question of whether states must issue […]

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