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READ IT HERE: Opening brief filed in Puerto Rico marriage case in First Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

The opening brief in the Puerto Rico marriage case has been filed in the First Circuit Court of Appeals. The case was brought by Lambda Legal and private counsel.

The plaintiffs, same-sex couples, lost the case in federal district court when the judge dismissed it, citing Baker v. Nelson, the one-sentence summary dismissal of a marriage case by the Supreme Court in 1972.

You can read the opening brief, filed by the plaintiffs, here:

14-2184 Plaintiffs' Opening Brief by Equality Case Files

Thanks to Equality Case Files for these filings

58 Comments

  • 1. RobW303  |  January 27, 2015 at 10:30 am

    Has a further schedule for this case been set?

  • 2. davepCA  |  January 27, 2015 at 10:48 am

    That huge list of reference cases (nine pages!) right after the table of contents is looking pretty sweet. As well as the enormous footnote #2 starting on page 3.

    But it appears that page 18 is blank…..?

  • 3. Randolph_Finder  |  January 27, 2015 at 11:00 am

    Nope, Page 18 has "REASONS WHY ORAL ARGUMENT SHOULD BE HEARD" up at the top, and is only about 1/4 full…

  • 4. davepCA  |  January 27, 2015 at 11:13 am

    No, I was referring to the actual page numbering within the document (page 18 of the document is actually page 35 of 119 in the PDF numbering scheme). The entire page was blank earlier, and was definitely missing a big chunk of text, but it now appears fixed.

  • 5. guitaristbl  |  January 27, 2015 at 11:33 am

    I have totally forgotten about this cas recently. The 1st circuit is moving at a snail's pace and this case stands no chance of even being heard before SCOTUS rules either way.

  • 6. Zack12  |  January 27, 2015 at 12:44 pm

    If it was going to be heard, our side pretty much has this one in the bag as long as we get two Democrats which is likely given the 4-2 makeup of the court.

  • 7. RnL2008  |  January 27, 2015 at 1:17 pm

    Okay, sorry to be off-topic on such a great day, but here is Ben Carson thinking his joke is funny and it's not: http://instinctmagazine.com/post/gop-presidential

  • 8. Sagesse  |  January 27, 2015 at 1:22 pm

    I'm speechless… the LDS church carefully redefines the word 'balance'.

    In major move, Mormon leaders call for statewide LGBT protections [Salt Lake Tribune]
    http://www.sltrib.com/lifestyle/faith/2106982-155

  • 9. franklinsewell  |  January 27, 2015 at 1:22 pm

    From Equality Case Files: Arkansas defendants in federal case have not paid their docketing fees – https://www.scribd.com/doc/253804499/15-1022-Show

  • 10. franklinsewell  |  January 27, 2015 at 1:29 pm

    Also in Arkansas, and also from Equality Case Files – Appellees opposition to rehearing the casein the State Supreme Court: https://www.scribd.com/doc/253913912/CV-14-427-Op

  • 11. Rick55845  |  January 27, 2015 at 1:39 pm

    That was concise and well-written by the Appellees attorneys. Let's hope the Arkansas Supreme Court denies the State's motion for rehearing and issues a ruling by the original judges forthwith.

  • 12. RnL2008  |  January 27, 2015 at 2:31 pm

    What does that mean? Does it mean the State DIDN'T pay it's fees and if they don't their appeal will be dismissed?

  • 13. F_Young  |  January 27, 2015 at 2:41 pm

    LGBT: Moving Towards Equality
    http://www.hrw.org/news/2015/01/23/lgbt-moving-to

    This is an interview of Kenneth Roth, the Executive Director of Human Rights Watch, that gives his unique perspective on the progress of LGBT rights around the world, and the intensifying backlash against them.

  • 14. Mike_Baltimore  |  January 27, 2015 at 2:46 pm

    There's an article on NBC News on this. However, if you read the comments, you'll see how the LDS 'church' tried to 'carefully redefine' several other issues to favor the LDS, including Civil and religious rights for others. (In almost all cases, the redefinition was LDS = first class, everyone else = second class.)

  • 15. Zack12  |  January 27, 2015 at 2:48 pm

    Indeed, the only reason the state is asking for a new hearing is because they know two of the new judges are toadies of the Religious Reich.

  • 16. Dr. Z  |  January 27, 2015 at 2:55 pm

    The LDS church has a well documented history of lying when it's deemed necessary to protect its interests. There's even a name for the doctrine: "Milk before meat" and it's part of missionary training.

  • 17. F_Young  |  January 27, 2015 at 3:19 pm

    The Real Learning Channel: A Straight Spouse Of A Gay Husband Speaks Out
    http://www.huffingtonpost.com/emily-f-reese/the-r

    This straight wife shares helpful and unique insights on mixed orientation marriages, and disparages the pressure on gays to enter traditional marriages.

  • 18. DACiowan  |  January 27, 2015 at 3:46 pm

    Nebraska's request to stay its case until SCOTUS rules was denied, and the hearing was rescheduled for February 19: Scribed.

  • 19. DrBriCA  |  January 27, 2015 at 3:46 pm

    The new judges are really the only thing the state has going for it in a re-hearing.

    Otherwise, the plaintiffs can easily bring up that in just the two months since the original hearing, bans in Alabama and South Dakota were declared unconstitutional, and SCOTUS denied the stay extension for Florida, effectively making it the 36th state to have marriage equality. Oh yeah, and a federal judge has already ruled Arkansas's bans unconstitutional as well…. That minor detail would probably be brought up in court as well!

  • 20. DrBriCA  |  January 27, 2015 at 3:53 pm

    Well, I'm glad it's still on, and he provides good reasoning why the case should still be heard. Somewhat annoying though that he did reschedule nearly a month later after just detailing how vital and time-sensitive these proceedings are for several of the plaintiffs.

    He can make it up to us by ruling from the bench without a stay!

  • 21. VIRick  |  January 27, 2015 at 4:21 pm

    Rose, more than that. It means that since the state did NOT pay their docketing fee in the federal appeal, indicating a failure to prosecute, and that the deadline for doing so has now passed, the case WILL BE dismissed in another 13 days. There doesn't seem to be any provision for making a late payment.

    Since the case in question, "Jernigan v. Crane," has already overturned Arkansas' ban on same-sex couples marrying, once this appeal has been dismissed, marrige in Arkansas will be on.

    The state is presently in an awkward, defensive position, having allowed the deadline to pass, thus indicating, NO APPEAL. As I've mentioned in another post, "cluelessness" and "incompetance" will probably not pass muster as acceptable excuses. I have no idea what type of excuse might actually pass muster with the 8th Circuit Court, and have no intention of making any suggestions here (or in any public post on any forum), as I choose not to give any fresh ideas to the new anti-gay Arkansas AG.

  • 22. RnL2008  |  January 27, 2015 at 4:29 pm

    I thought that's what it might have meant, but didn't want to say that…….but hopefully the 8th Circuit WON'T allow them to give excuses and I agree…..no need giving ideas to idiots who fail to do their job…….being INCOMPETENT is a real pet peeve of mine!!!

  • 23. davepCA  |  January 27, 2015 at 4:43 pm

    Wow. This is a very interesting development. Very curious to see of the court does anything to try to cut the state some slack, or if this really means we just got a win in Arkansas…

  • 24. jcmeiners  |  January 27, 2015 at 4:46 pm

    I can't believe the incompetence at work in many AG offices. Yes, they often hire staff because of patronage or because someone worked on a campaign, but forgetting to pay the filing fees is remarkably dumb. I would be tempted to think that someone did that on purpose, but then, per Occam's razor, stupidity wins as the most likely explanation.

  • 25. VIRick  |  January 27, 2015 at 4:53 pm

    Time will tell, of course, but Arkansas appears to have just blown its appeal on a simple technicality. Since the 8th Circuit Court also probably doesn't want to rule on a case dealing with marriage equality, they will most likely be quite happy to dismiss this case on such a technicality, rather than accept some excuse (in judicial language, "show cause"). After all, they're the party who first noted the non-payment, and caught Arkansas on it.

  • 26. Randolph_Finder  |  January 27, 2015 at 5:06 pm

    I think the best way that this can be looked at is that their line in the sand has been drawn farther forward than before. The LDS will be one of the *last* religions on the planet to consecrate SSM, they've used Opposite Sex Marriage as a constructive building block to their doctrine in ways that Most of Christianity hasn't. I still assert the statement that the LDS church that concecrates SSM will be farther from today's church than today's church is from the Church under Joseph Smith in Nauvoo.

    The best that can be hoped for in the next 5-10 years is a different area of focus getting their attention and I'm really not sure what that is. Even the Alcohol/Tobacco issues aren't *nearly* as close to core beliefs as Opposite Marriage consecration.

  • 27. RnL2008  |  January 27, 2015 at 5:06 pm

    So basically Marriage Equality will come to Arkansas by default……..that's just to funny!!!

  • 28. VIRick  |  January 27, 2015 at 5:14 pm

    DrBri, all of this assumes that the Arkansas federal case on appeal hasn't already been dismissed for failure to prosecute, i.e., failure to pay docketing fees.

    Once the federal appeal has been dismissed by the 8th Circuit Court (and we can hope and assume with some degree of semi-certainty that it will be), then the pending proceedings before the Arkansas Supreme Court on the same issue will be rendered moot.

  • 29. Zack12  |  January 27, 2015 at 5:15 pm

    Reading up on what happened with Arkansas at the 8th Circuit, they very well could SOL at the federal level.
    The problem for the 8th Circuit is that if they let them get away with dropping the ball here, that will allow anyone in any case to do the same.

  • 30. ebohlman  |  January 27, 2015 at 5:18 pm

    Well Dustin McDaniel, who was AG at the time the fee should have been paid, said he personally supported marriage equality but was obligated by the AR constitution to defend its laws. The antis will likely make a big deal of this, though all they'll really be able to do is pull some Santai-Gaffney stunts.

  • 31. VIRick  |  January 27, 2015 at 5:28 pm

    "He can make it up to us by ruling from the bench without a stay!"

    There you go! I can almost hear his reasoning: "I've already ruled on this matter back in 2005 when I struck down the ban in "Bruning." No new argument has been advanced by the state. The ban was unconstitutional in 2005, and is still just as unconstitutional in 2015. The ban is struck. Ordered and Done. No stay. "

    Is that acceptable to you?

  • 32. RobW303  |  January 27, 2015 at 5:54 pm

    No idea?

    "But, your Honor, it's homosexuals!!"

    "In that case, motion granted, and the docketing fee is waived."

  • 33. VIRick  |  January 27, 2015 at 6:52 pm

    Dave, have you read the "Show Cause Order" from the 8th Circuit Court of Appeals, dated 26 January 2015? It made my eyeballs pop.

    The state of Arkansas has been reduced to the ridiculous position of having to "Show Cause" why its appeal in "Jernigan v. Crane," presently before the 8th Circuit Court, should not be dismissed for non-payment of docketing fees. They have 14 days (from 26 January 2015) to invent some sort of half-assed excuse or semi-plausible reason, which may or may not be accepted by the 8th Circuit Court.

    Given that the very stodgy 8th Circuit probably doesn't really want to be forced to rule on this matter, they may not be amenable to accepting any excuse, and will gladly use this breach of procedure to quickly dismiss, and could do so as early as 10 February 2015.

    The wording in the "Show Cause Order" favors dismissal.

  • 34. VIRick  |  January 27, 2015 at 7:47 pm

    Hey Rob, I read it the other way.

    "But, your honor, it's homosexuals!"

    "Yikes, we don't want those icky gays here in our courtroom. Glad you forgot to pay the fees. Appeal dismissed."

  • 35. VIRick  |  January 27, 2015 at 7:59 pm

    "…. "that will allow anyone in any case to do the same."

    Courts are normally quite picky about both sides, plaintiffs and defendants, following precise procedure. Missing a filing deadline, or in this instance, a payment deadline, generally destroys one's case, as it gives the Court grounds for dismissal. Most courts, if they can get away with ruling on a simple technicality like this, will gladly do so, as it frees up their case-load. Dismised. Ordered and Done. Next! See how easy that was?

  • 36. DrBriCA  |  January 27, 2015 at 9:08 pm

    Maybe that's why they scheduled Arkansas so quickly as compared to Missouri… They saw Arkansas as having an easy out whereas Missouri would have to go through the motions (even with the Gov/AG not really putting up a huge fight).

  • 37. DrBriCA  |  January 27, 2015 at 9:14 pm

    I've read that the new AG has paid the fee today after getting the notice. Now the question would be whether the 8th would still toss the appeal if affronted by the breach in protocol or if it takes the late payment and moves on.

  • 38. Zack12  |  January 27, 2015 at 9:21 pm

    They can move on but I also think they might tell Arkansas they are out of luck.
    Regardless of their political leanings, many judges are strict about the rules that have to be followed, something Arkansas Ag Office failed to do.

  • 39. Raga  |  January 27, 2015 at 9:27 pm

    I've heard from a lawyer friend that cases are rarely dismissed for first-time mistakes such as this. I highly doubt this appeal is going to get tossed out due to the late payment of fees.

  • 40. Raga  |  January 27, 2015 at 9:30 pm

    Unfortunately, it can't be as simple as that. His 2005 ruling was overruled by the Eighth Circuit, and is binding on him (i.e., Nebraska's ban survives rational basis review and sexual orientation is not a suspect/quasi-suspect class), so his rationale has to be different. I suspect he'll do the same thing the Missouri and Arkansas federal judges did, and rule that marriage is a fundamental right and Nebraska's laws don't withstand strict scrutiny. Also, though it is possible, no judge has yet ruled a ban unconstitutional from the bench, and I doubt he'll be the first to do so. Regarding a stay, the Eighth Circuit is again binding, and he will at least grant a temporary stay. The exception is if Alabama's request goes to SCOTUS and they deny a stay by then (SCOTUS's decisions override the Eighth Circuit's).

  • 41. VIRick  |  January 27, 2015 at 9:34 pm

    The breach in protocol/procedure is still a breach in protocol/procedure, and remains grounds for dismissal, whether the fee was paid late, or left unpaid.

    The "Order to Show Cause" did not ask for the money, and made no provision for late payment. Instead, it requested that the state show cause as to why the appeal should not be dismissed for non-payment of the docketing fees. The deadline came and went, and the state blew it. If I were sitting on the 8th Circuit Court, I'd dismiss this case forthwith (at the end of the 14 days), and lighten my case-load.

  • 42. Zack12  |  January 27, 2015 at 9:40 pm

    http://thegavoice.com/lambda-legal-agrees-with-mo
    It's look like the Georgia case will be stayed until SCOTUS weighs in and that is a good thin gIMO since the judge has made it clear he will rule against us.

  • 43. DrBriCA  |  January 27, 2015 at 9:48 pm

    I'd love for them to get a load off and release Alabama from its back & forth between the federal and state court systems!

    Of course, that then leaves the 8th with just Missouri and its half-hearted defense until SD finishes its appeal! (And hopefully Nebraska after next month!)

  • 44. scream4ever  |  January 27, 2015 at 10:15 pm

    Plus a likely positive ruling from the 11th Circuit will bring Georgia into our column.

  • 45. VIRick  |  January 27, 2015 at 10:56 pm

    "I'd love for them to get a load off and release …."

    Bri, did your cute, coy mind wander there because of some hot, tempting, outside distraction?? LOL I'm framing that response.

    Oh wait! I see what you're saying about Arkansas (not Alabama).

  • 46. Rick55845  |  January 28, 2015 at 5:40 am

    "Regarding a stay, the Eighth Circuit is again binding, and he will at least grant a temporary stay. The exception is if Alabama's request goes to SCOTUS and they deny a stay by then (SCOTUS's decisions override the Eighth Circuit's)."

    Alabama is in the 11th Circuit, so why would SCOTUS denial of a stay request by Alabama affect a decision by the 8th Circuit regarding a stay of a favorable ME ruling in Nebraska? Haven't we seen that requests for stays within each circuit play out without regard for what happens in the others? At least until it gets to SCOTUS.

  • 47. RQO  |  January 28, 2015 at 5:44 am

    Rose – there have been some articles on Politico site about the large number of potential Republican candidates for President, and the goings-on at Steve King's Iowa super-conservative meeting last weekend. Seems there is a BIG effort on the part of Evangelicals, etc. , to NOT let the party's anti-LGBT stance wither away and die no matter what happens with SCOTUS. This appears to be led by Huckabee. They intend to make anti-ME a litmus test for Republican candidates, so we are going to have to hear a unrelenting litany of anti-gay, "freedom to discriminate" hatred, dressed up just enough to be repeated in main-stream media, for years. I am just waiting to be called "uppity".

  • 48. RQO  |  January 28, 2015 at 5:56 am

    I like Ebohlman's comment. It also dawns on me that the whole justice versus politics charade with the Arkansas Supreme Court is going so poorly, and with a pro-ME SCOTUS decision looming within 6 months, that perhaps a lot of people in Arkansas' legal system had their aids and assistants discuss how to get rid of the issue in a way they could say it was just a mistake, made by the guy who just retired. Byzantine thought, but what does Zack think?

  • 49. StraightDave  |  January 28, 2015 at 6:10 am

    But didn't SCOTUS already deny a stay in FL? Isn't that enough to influence the 8th?

  • 50. Rick55845  |  January 28, 2015 at 6:29 am

    Yes to your first question, and perhaps to the second. The 8th may find it persuasive that SCOTUS denied the FL request for a stay, but they aren't bound by it.

  • 51. JayJonson  |  January 28, 2015 at 6:38 am

    Zack, if I recall correctly, the Georgia judge rejected many of the arguments put forward by the plaintiffs, but he kept alive the case at the time because he could not deny the merit in the equal protection argument. I agree that the judge would LIKE to be able to rule against us, but he may be professional enough to know that he would have to rule in our favor if he issues a ruling. That, imo, is why he so quickly stayed the case.

    He does not want to do what he knows he should do, so he is happy to duck the issue and let SCOTUS decide. In any case, I am happy enough to not have to read anything this man has to say even if it were a grudging ruling in our favor. Marriage equality will come to Georgia in just about 5 months from now.

  • 52. hopalongcassidy  |  January 28, 2015 at 6:56 am

    I'm surprised they didn't try the old "The check is in the mail!" excuse.
    😉

  • 53. jcmeiners  |  January 28, 2015 at 7:11 am

    LOL – Arkansas would totally deserve this. And it would make a great scene for the eventual movie on how ME was achieved.

  • 54. Raga  |  January 28, 2015 at 10:30 am

    Doesn't matter which circus Alabama is in. If SCOTUS denies them a stay, that decision can be used by the Nebraska judge as grounds for denying Nebraska a stay. He could use the Florida stay denial too, but to a much lesser extent, because the Eighth refused to lift the MO stay despite it, and the Eighth's interpretation of SCOTUS is binding on him.

  • 55. Raga  |  January 28, 2015 at 10:31 am

    Sadly it didn't. They still refused to lift the MO stay. Perhaps it will take one more stay denial from SCOTUS for the Eighth to get the message.

  • 56. scream4ever  |  January 28, 2015 at 10:48 am

    Or even sooner if the 11th issues a favorable ruling.

  • 57. StraightDave  |  January 28, 2015 at 11:25 am

    Raga- I'm sure "circus" was a major Freudian slip since it definitely fits the situation.

  • 58. Raga  |  January 28, 2015 at 11:28 am

    Ha ha… just noticed it… Apparently my phone is learning to make intelligent autocorrect mistakes :)

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