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READ IT HERE: Alabama officials file reply in Eleventh Circuit in support of their request for a stay of same-sex marriages

LGBT Legal Cases Marriage equality Marriage Equality Trials

In both the Searcy and Strawser cases, Alabama officials filed their replies in support of a stay in the Eleventh Circuit Court of Appeals.

The district court’s temporary stay is set to expire next Monday, February 9. At that time, same-sex couples in Alabama will be able to get married, and same-sex couples living in Alabama who had been legally married outside of the state will have their marriages recognized.

A decision by the appeals court on the stay is expected well before next Monday. If they were to deny the request, as they did in the Florida marriage case, the state would then ask the Supreme Court to issue a stay.

That request would first go to Justice Clarence Thomas in his capacity as Circuit Justice for the Eleventh Circuit. He could grant or deny the stay on his own, or refer it to the full Court.

You can read the replies in the Eleventh Circuit here:

15-10295 – Reply in support of stay (Searcy) by Equality Case Files

15-10313 – Reply in support of stay (Strawser) by Equality Case Files

Thanks to Equality Case Files for these filings

116 Comments

  • 1. sfbob  |  February 2, 2015 at 10:34 am

    That's about the stupidest and most insulting brief I have ever read. The worst of it is suggesting that the plaintiffs will "only" be harmed in "intangible" ways like "stigma." "And they ignored our expert's testimony" (read Regnerus here).

    Also too, Baker vs Nelson. In other words they really have nothing but insults and discredited research results left.

  • 2. hopalongcassidy  |  February 2, 2015 at 10:43 am

    They really are reaching:

    "As Justice Kennedy noted in Windsor , “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”
    ——————————————————————————————————————-

    As if that is any sort of logical, reasonable, or appropriate, much less legal argument.
    What a bunch of holes.

  • 3. RnL2008  |  February 2, 2015 at 10:43 am

    I just started to read the brief from the AG and the first thing I see is he believes he will win on the merits…….how did he come to that conclusion? So, he's referring to Baker as to why he should win on the merits even though Baker is basically the same as beating a dead horse……and how does preventing Gays and Lesbians from marrying have ANY affect on opposite-sex couples staying together and raising their children?

    Never mind, it's the same BS all of these idiots try, but at the end of the day….they will lose and to invoke what the 6th did as a means of it happening in their favor is just wishful thinking on their part…….they need to pay attention to what the 11th and SCOTUS did regarding the Stay request from Florida……that should tell them what they can expect!!!

  • 4. yyyAllenyyy  |  February 2, 2015 at 10:52 am

    I'm pretty confident in the 11th but I am nervous about SCOTUS. They may extend the stay since they took up cases from the 6th. If SCOTUS lets the stay expire, my confidence will go through the roof for June.

  • 5. RnL2008  |  February 2, 2015 at 10:56 am

    I'm cautiously optimistic with SCOTUS ruling in our favor come June……..regardless of whether they grant a stay for the State of Alabama……but my guess is they might not grant a stay because they already know what they are doing……it's the waiting that I can't stand!!!

  • 6. hopalongcassidy  |  February 2, 2015 at 11:13 am

    I agree wrt the 11th but it would not surprise me one bit if old Clarence Uncle Tom were to extend the stay on his own. After, of course, consulting with his clerks on how to go about it.

  • 7. davepCA  |  February 2, 2015 at 11:36 am

    I notice their ridiculous and transparent attempt to argue about how all of the 'confusion and conflict' in these cases is a reason to justify extending the stay, when it is obvious to everyone that all of that 'confusion and conflict' has been manufactured by, and prolonged by, the losing state defendants themselves.

    A standard goofy brief that deserves a standard goofy sound effect:
    http://www.sadtrombone.com/?play=true

  • 8. A_Jayne  |  February 2, 2015 at 12:11 pm

    By attempting to make this point:

    "Most importantly, the plaintiffs ignore the fact that, in every other Circuit, every district court decision on this issue has been stayed until the legal question could be resolved by a higher court in a way that would be binding on all district court judges and state officials."

    The AL AG ignores the fact that in the most recent decision in the 11th Circuit, the stay was not extended by either the Circuit or the SCOTUS. How can he imagine that fact is not pertinent to this case?

  • 9. guitaristbl  |  February 2, 2015 at 12:55 pm

    This is pointless IMO. Even if the 11th refuses to extend the stay, SCOTUS will grant it most probably now that it has the hot potato right in its hands.

  • 10. jcmeiners  |  February 2, 2015 at 12:58 pm

    Unrelated, but still good news: The 6th Circuit has just upheld most of the verdict against the virulently anti-gay former Michigan Assistant Attorney General Andrew Shirvell for stalking and defaming UM student-concil president Chris Armstrong. The ruling is quite a read: http://www.ca6.uscourts.gov/opinions.pdf/15a0099n

  • 11. VIRick  |  February 2, 2015 at 1:03 pm

    "The AL AG ignores the fact that in the most recent decision in the 11th Circuit, the stay was not extended by either the Circuit or the SCOTUS. How can he imagine that fact is not pertinent to this case?"

    If he were to admit to that highly inconvenient fact, he would destroy his own argument (such as it is).

  • 12. Rick55845  |  February 2, 2015 at 1:05 pm

    I don't understand your train of thought, guitarist. It doesn't seem logical to me that SCOTUS would grant a stay now when it has ultimately denied every ME stay request that has come before it since the denials of cert on 6 October. What would a stay at this point accomplish? What would be the point?

  • 13. Mike_Baltimore  |  February 2, 2015 at 1:11 pm

    In some ways, I hope he does. Then the other side can appeal to someone who will not extend the stay, then the other side can appeal to someone who will extend the stay, etc., etc. Eventually we'll get to 5 Justices who will or will not extend the stay, or SCOTUS will say 'ENOUGH' and the court as a whole will speak. I suspect it will be a 5-4 ruling (even if only a couple of justices issue written dissents), and we'll pretty definitively know what the court says by that vote what the decision will be at the end of June. And whatever that ruling is, there is almost no probabity it won't affect the states in the 8CA.

  • 14. bythesea66  |  February 2, 2015 at 1:23 pm

    I suspect even he would refer it to the full court, or if he granted the stay it would be appealed to another justice who would then refer it to the full court avoiding a circus (one way or another).

  • 15. bythesea66  |  February 2, 2015 at 1:25 pm

    Very good to hear. Shirvell is a (likely closeted) stalky creep.

  • 16. RQO  |  February 2, 2015 at 1:44 pm

    As to ignoring "experts' testimony", what can we say in light of Judge Friedman's opinion in the the Michigan DeBoer TRIAL RECORD case? Either news travels slowly to Alabama, or they belive if you stomp on it hard enough, the world will become flat again.

  • 17. franklinsewell  |  February 2, 2015 at 1:54 pm

    He referred the Florida request for stay to the whole court, then issued the denial.

  • 18. hopalongcassidy  |  February 2, 2015 at 2:06 pm

    Did I offend someone with my description of old Clarence Uncle Tom? I just wonder because that was the nicest thing I could think of to say about the crazy old sonofabitch.

  • 19. VIRick  |  February 2, 2015 at 2:29 pm

    "…. old Clarence Uncle Tom"

    Hop, I presume you're speaking about Clarabel, scaly Scalia's mute side-kick, correct?

  • 20. Mike_Baltimore  |  February 2, 2015 at 2:45 pm

    "Facts? What facts? I'm talking out of my nether regions, so there can be no facts."

  • 21. sfbob  |  February 2, 2015 at 3:10 pm

    I'd stick with "stalky creep" and leave out the "closeted" part. Do we really want him to be one of ours? I tend to think the idea that those who seem to hate us the most are really actually gay themselves is just a bit over the top. Some of them most certainly but probably not most of them. For the majority they simply like feeling superior to someone, plus they view sexuality as something to be caged up and controlled. Especially if it's someone's sexuality other than their own.

  • 22. Tony MinasTirith  |  February 2, 2015 at 3:20 pm

    So far, every justice except Alito has referred stay requests to the full court. And in Alito's case, he denied it on his own (as we all know). Thomas will refer Alabama's request to the full court. With SCOTUS accepting cert from the 6th, the game has changed a bit. SCOTUS may decide to grant a continued stay, not because they're going to uphold the 6th, but only as to not show the hand they'll throw down in June… a poker move. I'd give this move a 50% chance. If however, they deny Alabama's stay request, it's game over, and we'll just need to wait to find out which play they'll use to make nationwide ME a reality.

    The court knows it would be the cause of a nationwide mess, allowing same gender marriages in the reddest of red states only to effectively re-ban them a few months later. The responsible thing, if Kennedy was going to side with Scalia and Alito, would have been to continue allowing the stays till final adjudication by SCOTUS. It would be the most irresponsible thing the Robert's court has done since Citizen's United to allow over 20 state's constitutions to be up rooted and then replanted when they knew they had 5 votes (or even likelihood of 5 votes) to reverse the cascade of lower courts in the 4th, 7th, 9th and 10th circuits.

    It's my guess that SCOTUS will rule 6-3 to overturn the 6th CA. Justice Roberts will join the majority so he can limit the scope by writing the opinion. He won't use heightened scrutiny. He won't use due process. He'll overturn the 6th on rational basis and equal protection following Posner's lead. He may even say that the citizenry will always have the last word by having the power to write the Federal Constitution, and in a back handed way endorse the now defunct FMA. In other words daring republicans to amend the constitution to rally together and to re-ban same gender marriage. A rallying cry, so to speak. If he doesn't Scalia will, among the rest of his raving dissent.

    If I'm wrong, and the vote is 5-4. Kennedy will overrule the 6th on searching scrutiny (careful consideration) on due process and equal protection grounds, but not mention a fundamental right to marriage between two people of the same sex. He may mention impermissible animus again. Perhaps in a concurrence by RGB or another justice will Baker be specifically over-ruled.

  • 23. montezuma58  |  February 2, 2015 at 3:43 pm

    I'm leaning heavily towards the Supreme Court not allowing a stay in the AL cases. If they were worried about tipping their hand they would not have allowed the district court ruling in FL to go into effect. The granting of cert was certain at that time. I don't believe the formal granting of cert corresponds to a change in heart of how any justice will ultimately rule or handle any interceding motions.

  • 24. Tony MinasTirith  |  February 2, 2015 at 3:47 pm

    The 6th CA could also be overturned in a surprise wild card move with votes to vacate it's holdings coming from Scalia, Kagan, Kennedy, Sotomayor, and Breyer, with dissents from Ginsburg, Roberts, Thomas and Alito.

    Scalia would then take the opinion away from Kennedy, slapping up the 6th saying it was wrong to abdicate it's duty based on the obviously defunct baker, and overturning the 6th on Stare decisis logic of Brown v Board of Education, Griswold, Romer, Lawrence, and Windsor. Roberts and Alito, dissent on 10h amendment and federalism grounds. RGB, the issue is not ripe yet and should continue percolating in public debate and Thomas still sees no right to privacy in the constitution.

    It could happen 😀 Discuss amongst yourselves.

  • 25. scream4ever  |  February 2, 2015 at 3:56 pm

    I can see Roberts joining in a concurring opinion but not authoring the majority opinion. Kennedy's legacy is gay rights as evidenced in his previous three majority opinions, and I doubt he'll back down now.

  • 26. Tony MinasTirith  |  February 2, 2015 at 3:59 pm

    While you're right about Kennedy's legacy, as the senior justice on the majority, Roberts has the authority to assign the opinion to anyone in the majority including himself. I wouldn't count on him being deferential to Kennedy's gay rights championship.

  • 27. scream4ever  |  February 2, 2015 at 4:01 pm

    If there were not a full 5 votes on the court for a nationwide ruling I'd say it's possibly, with a similar situation being the ruling handed down in Hollingsworth v Brown. However, the Supreme Court hasn't been denying cert and refusing stays for nothing. I believe it's to deliberately help "prepare" the nation for a sweeping ruling, so as it wouldn't be so drastic in striking down bans in 30 states as opposed to now only a handful or two.

  • 28. scream4ever  |  February 2, 2015 at 4:04 pm

    True, but it the other 5 hold their ground and say we want a more sweeping opinion, he could then write a more mild concurring opinion for the dissent instead.

  • 29. Tony MinasTirith  |  February 2, 2015 at 4:05 pm

    I hope you're right. As I implied, I do think there is a 50% chance of this happening. I still think that a majority of the court may, now that cert has been granted, not want to show their hand to give the illusion that the decision isn't a done deal. If they show their hand this early, it may give the impression that they've made their decision before the parties had a chance to argue their position. This would seem an intolerable usurpation of justice.

  • 30. Tony MinasTirith  |  February 2, 2015 at 4:07 pm

    I've never heard of Hollingsworth v. Brown. Tell me about it.

  • 31. hopalongcassidy  |  February 2, 2015 at 4:10 pm

    The Klown with the horn on his belt? I do believe he was Howdy Doody's kick…the one Buffalo Bob had to keep his eye on.

  • 32. davepCA  |  February 2, 2015 at 4:11 pm

    Based on the idiotic 'reasoning' given in the 6th Circuit decision, which in large part was just the appeals court abdicating its responsibility to answer the actual question before the court (does this marriage ban violate the federal Constitution or not?) and amounts to the court declaring that they shouldn't have to answer it, it should be up to the gays to go 'change the hearts and minds' of the people who enacted the discrimination, it seems to me that it would be conceivable for SCOTUS to remand the case back to the 6th Circuit and tell them 'the question was not who should decide this. It's your job to decide it, so do your job'.

    Of course, given what we know about the 6th, that appeals court would then just rule against us using other wording, and we'd be right where we are now once again, which would just waste some time and drag this out a bit longer.

  • 33. Tony MinasTirith  |  February 2, 2015 at 4:11 pm

    So you're saying Roberts would join the majority, hand the opinion to Kennedy to write, then also join the minority and writing a mild dissent to the majority which in effect has no precedent and essentially no effect?

  • 34. Tony MinasTirith  |  February 2, 2015 at 4:15 pm

    Brown was not a part of the decision that was struck down. As governor, he bowed out, and was not part of the litigation at SCOTUS. That's why the case at the Supreme Court was called Hollingsworth v. Perry.

    If the Governor had been part of the case, it would have likely been able to be heard on the merits. The governor would have obviously had standing and had he been in position, there would have been a case and controversy for SCOTUS to adjudicate. So I still know of any Hollingsworth v. Brown before SCOTUS.

  • 35. Tony MinasTirith  |  February 2, 2015 at 4:18 pm

    Jerry Brown was not a party in the Hollingsworth v. Perry case before SCOTUS. And that's specifically why Hollingsworth v. Perry was dismissed for lack of standing.

  • 36. davepCA  |  February 2, 2015 at 4:19 pm

    Yes, the earlier version with "Brown" n the case name was "Perry v. Brown", not 'Hollingsworth V. Brown'.

  • 37. Tony MinasTirith  |  February 2, 2015 at 4:28 pm

    We're talking cases that were brought before SCOTUS. Brown had bowed out way before Perry V. Hollingsworth got to SCOTUS. Had SCOTUS actually had a case called Hollingsworth v. Brown before it, then it could have not dismissed the case on a lack of standing. History would be different in a Hollingsworth v. Brown before SCOTUS case. Had Jerry Brown stayed in the case and defended the law, SCOTUS may have very well ruled on the merits. Had he remained a defendant but sided with the plaintiffs, SCOTUS would have probably thrown it out for lack of controversy. So I still submit there was NEVER a case before SCOTUS called Hollingsworth v. Brown. Hollingsworth never had a beef or filed a suit against Gov or AG Brown. Hollingsworth beef was with Perry,not brown. So there has never been a Hollingsworth against the AG Brown. The orignal suit in CA was Perry v. Brown. Why would senator Dennis Hollingsworth file a suit against the AG Jerry Brown? Brown had not allowed SSM on his own.

    Don't tell me.

  • 38. davepCA  |  February 2, 2015 at 4:32 pm

    Yes, I know. I was pointing out that you were correct, and that there was no case called 'Hollingsworth v. Brown'.

  • 39. Tony MinasTirith  |  February 2, 2015 at 4:34 pm

    Thank you.

    Even if Brown had stayed in the case and defended the law, the case before SCOTUS would have been Brown v. Perry not Hollingsworth v. Brown. Senator Hollingsworth wouldn't have been a defenant or plantiff had Brown defended the law.

  • 40. davepCA  |  February 2, 2015 at 4:37 pm

    yup. A case called 'Hollingsworth v. Brown' would have no plaintiff (Perry et al, the couples bringing suit to challenge Prop 8). It would consist of a state defendant (Brown) and a defendant intervenor (Hollingsworth).

  • 41. Tony MinasTirith  |  February 2, 2015 at 4:44 pm

    Exactly DAVE!

    And this why there never was, never will be and never could be a case called Hollingsworth v. Brown, at SCOTUS or in the Courts below.

    A Hollingsworth v. Brown case would be equivalent of a BLAG v. J. Boehner case.

  • 42. scream4ever  |  February 2, 2015 at 4:45 pm

    Right, I meant Hollingsworth v Perry. My mistake.

  • 43. VIRick  |  February 2, 2015 at 4:46 pm

    "This would seem an intolerable usurpation of justice."

    Tony, you have such admirably high standards, a quality which I feel you carry over into your personal life, as well.

    However, not to shock you too much, but my standards don't quite reach to the same pinnacle of perfection. Nor do those of the notorious RBG. If I read her (and the rest of the liberal wing) correctly, she wants as many states as humanly possible to have marriage equality BEFORE the Supreme Court finally rules. Just as they did with the Florida situation, if they can tip one or two more into the basket of marriage equality, and can do it now, they will. Thus, when the Supreme Court does finally rule, the trauma for the die-hards will have been lessened as much as it possibly can be. Plus, given its miserable Civil Rights history, Alabama now presents itself to them as the perfect nut to crack.

    I mean, carefully look at a map and note that the majority of the remaining states without marriage equality are stretching across the Deep South in a fairly broad band,– Georgia, Alabama, Tennessee, Mississippi, Arkansas, Louisiana, and Texas,– and that's 7 of the 13 without.

  • 44. Tony MinasTirith  |  February 2, 2015 at 4:49 pm

    Oooops

  • 45. Tony MinasTirith  |  February 2, 2015 at 4:57 pm

    It would take A LOT to shock me Rick. A LOT.

    I actually agree with you and I completely understand that "The Court" would prefer to overturn as few bans as possible. And I beleive that there has been a plan in place by SCOTUS to get to that goal. The plan started with Romer, carried on with Lawrence and the final act of the plan was laid in place by Windsor. As I said before, I really REALLY hope that SCOTUS denies an extended stay request to Alabama. But that said, I wouldn't be surprised if they granted the extended stay, just for appearances sake. Had Alabama been struck down last september, I'd have NO doubt that their stay request would have also been denied without commment along with the other 7 states request last october. I'm just sayin that as the game moves along, sometimes strategy is often adjusted by skilled players. I'm no pollyanna. As I've been saying all along regarding an extended stay for Alabama and SCOTUS. Either they will or they won't….decisions decisions.

  • 46. hopalongcassidy  |  February 2, 2015 at 4:59 pm

    Let that be a warning. Do not ever make even a small mistake on this here forum, the most anal perfectionists will rend you asunder and worse will mock and ridicule you and call you names followed by neener neener insults.

  • 47. Tony MinasTirith  |  February 2, 2015 at 5:07 pm

    In the scenario above, there are still 5 votes for a nationwide ruling. Just a different 5 than is expected…or probable. It's just a wild card scenario, still with 5 votes for ME, just a different 5 than expected.

  • 48. davepCA  |  February 2, 2015 at 5:21 pm

    I hope my comments in this thread were only perceived as providing information. I didn't intend to say anything derogatory towards any other participants.

  • 49. Tony MinasTirith  |  February 2, 2015 at 5:29 pm

    If SCOTUS was going to grant vacate and remand, they'd have done it instead of agreeing to hear the case. It wouldn't make sense to slap the sixth for abdicating their duty and then doing the same thing themselves….basically saying go back to GO, do not collect $200 and start all over again.

    SCOTUS will rule on the merrits and in favor of ME, unless the Pro ME lawyers really screw up and pull a [SeaHawks Coach] Pete Carroll. That's why I hope Robbie Kaplan is one of the lawyers arguing this case. The states cases to uphold their bans are wholly and on their face irrational and fail even the lowest rational basis scruitny. The only case the state lawyers could possibly make is "the people have the right to vote" and set public policy and the judiciary does not have the right to create a right to SSM out of thin air. I think we'll be able to tell a lot in oral arguments when we see which attorneys Justice Kennedy appears to aid vis-à-vis his questions. Of course he could hide his hand if he asks questions aiding both sides equally.

  • 50. guitaristbl  |  February 2, 2015 at 5:38 pm

    It's very simple, SCOTUS has granted cert since the last time it refused a stay. A stay at this point would simply avoid showing that the court is tipping its hand in a case it hasn't heard yet. If they deny it here, they would just enhance speculation. There are very delicate balances here that SCOTUS needs to keep. It's a totally different legal landscape before granting cert and after that.

  • 51. davepCA  |  February 2, 2015 at 5:39 pm

    Ah, of course! I had been concerned about that possibility before SCOTUS decided to hear the case, and didn't put two and two together and realize that this is now off the table. Good. One less thing for me to worry about.

  • 52. Decided_Voter  |  February 2, 2015 at 5:40 pm

    Kennedy could write the majority opinion which could include Ginsburg, Breyer, Kagan, and Sotomayor for a total of 5 votes. That would be the law of the land. Roberts could write a concurring, less sweeping opinion for a 6th vote for example. This would be similar to O'Connor's 6th vote in Lawrence; she provided a 6th vote but her reasoning on equal protection didn't carry the weight of the ruling. Due process, the reason of the other 5 justices, did carry the weight of the opinion of which Kennedy wrote.

  • 53. Zack12  |  February 2, 2015 at 5:43 pm

    They already tipped their hand when they didn't grant a stay in Florida.

  • 54. Tony MinasTirith  |  February 2, 2015 at 5:46 pm

    True. That could happen, but only IF Roberts wanted to be generous and allow Kennedy to write and control the opinion. As the senior justice in the [probable] majority, Roberts holds the keys to the car. Would Roberts want to take the drivers seat, or be content to sit in the back seat, handing the keys to the station wagon to Kennedy? We shall see.

  • 55. Zack12  |  February 2, 2015 at 5:49 pm

    I agree 100% with you.
    Yes there are some self-loathing closet cases (and we've seen them over the years) but not every man and woman who is fighting against us is a closet case.
    Many of them are simply bigots and in this case, I would say mentally ill.
    Stalkers have fixated on people they don't know for all sorts of reasons.
    I truly hope his victim is taking measures to protect himself, a ruling like this might just push him over the edge.

  • 56. StraightDave  |  February 2, 2015 at 5:51 pm

    He may not have much other choice. The way I understand it (not that I really know anything for real, I mostly just argue what I think probably ought to be right), the vote isn't over until it's over. If Roberts purports to write for a tentative majority of 6, but he doesn't get 5 votes for what he puts in writing, he's either going to have to strengthen it or bail, leaving someone else to write for 5. Just because he's senior of the 6 doesn't give him carte blance to write whatever he wants. Isn't there a vote on the final wording?

  • 57. DrBriCA  |  February 2, 2015 at 5:54 pm

    SCOTUS has been unpredictable for months now, since they haven't given any reasons for upholding or denying stay requests. But many cases since the cert denials of Oct 6 have been ever-increasing testing grounds with SCOTUS showing their hands….

    – after a brief two-day stay, they denied Idaho a stay pending appeal en banc (despite just a couple months prior continuing a stay on the 4th circuit decision pending appeal)
    – they denied Alaska's request for a stay of the district level decision, which was a first, and led to most other states in the affected districts to make rulings with near immediate effects
    – they denied Kansas & South Dakota's requests for stays despite the new split caused by the 6th circuit (although here Scalia and Thomas finally noted dissent).
    – and glorious Florida, where they declined to continue the stay on a district level decision before the circuit had even weighed in on the merits.

    So, it's been building (no stay for circuit rulings, no stay for districts within said circuits, no stay for districts OUTSIDE said circuits). Alabama will definitely be another big step toward revealing a foregone conclusion if SCOTUS denies the stay!

    (And as I've said on other pages, if Alabama is denied a stay, the final big step in the path toward the decision would be SCOTUS overruling the 8th's decision to continue stays for their various states, should those stays be appealed!)

  • 58. Tony MinasTirith  |  February 2, 2015 at 5:57 pm

    The vote on the Majority opinion is by the concurrence or dissents attached to that opinion.

  • 59. Decided_Voter  |  February 2, 2015 at 5:58 pm

    I'm thinking it's more what StraightDave said below. The majority writer, even if the Chief Justice, still needs to get 4 others to sign off on what he writes. If he's championing something they don't agree with or want to champion, 5 others can write their own opinion. At least, that's my understanding.

  • 60. Zack12  |  February 2, 2015 at 5:58 pm

    Let's put it this way, if they deny a stay in Alabama, that is the ball game as they say.

  • 61. Zack12  |  February 2, 2015 at 6:01 pm

    It will be a waste of time to go back to the 6th.
    There are simply too many George W Federalist Society judges for us to win there.

  • 62. bythesea66  |  February 2, 2015 at 6:01 pm

    I certainly don't want him on the team. I agree with you in general, but in this particular instance I refuse to pretend I do not see the obvious. However, the tendency to label all bigots as closeted gays is way overplayed and I concur with your general point.

  • 63. bythesea66  |  February 2, 2015 at 6:05 pm

    Can he prevent the other five from concurring opinion together and wouldn't that concurrence still have majority weight (5 of 9)?

  • 64. VIRick  |  February 2, 2015 at 6:06 pm

    "Isn't there a vote on the final wording?"

    Yes, there is, and he needs to have 4 other votes (besides his own) before his opinion can be considered the majority opinion. So, if he writes a watered-down, namby-pamby, twiddle-twat of an opinion, the liberal 5 can (and will) bolt from him, and write the actual majority opinion, leaving him with his watered-down, namby-pamby, twiddle-twat at a concurring opinion, to make it a 6-vote majority. But his opinion won't be controlling,– it will simply be a concurring opinion with the majority.

  • 65. StraightDave  |  February 2, 2015 at 6:07 pm

    And anyway, the whole thing is messed up. For the short time Brown was a party, he was, legally-speaking, on the same side as Hollingsworth, being sued by Perry. Morally they might have been on opposite ends, but not legally. Hollingsworth took over Brown's appellant role when Brown declined. Theoretically, the appeal could have been "Brown & Hollingsworth v Perry".

  • 66. Tony MinasTirith  |  February 2, 2015 at 6:08 pm

    It may be moot, if the bulk of the prognosticators are correct that the ruling will be 5-4 and that Roberts will join the minority and write a dissent for posterity's sake only.

  • 67. Decided_Voter  |  February 2, 2015 at 6:12 pm

    Beautifully stated. Thanks.

  • 68. VIRick  |  February 2, 2015 at 6:13 pm

    "…. they denied Kansas & South Dakota's requests for stays …."

    DrBri, you have such high standards, as well. That was a near-perfect recitation of the sequence of SCOTUS' stay denials except for one tiny factual error:

    "They denied Kansas' and South Carolina's requests for stays."

    But I love you just the same because perfect perfection might make the entire enterprise somewhat scary. Still, once we're past Alabama, SCOTUS' tackling of the stays in the 8th Circuit, once requested, would be the next step, just as you've stated.

  • 69. Tony MinasTirith  |  February 2, 2015 at 6:15 pm

    If the other 5 concurred on one opinion and dissented from Justice Roberts, that would be the opinion of the majority. Justice Roberts couldn't be a majority of one. His lone opinion would then be a concurrence on the final outcome and a dissent on the opinion of the majority of 5.

  • 70. Tony MinasTirith  |  February 2, 2015 at 6:16 pm

    I concur.

  • 71. bayareajohn  |  February 2, 2015 at 6:24 pm

    "Save the families" is code for "They're Gay, we should be burning them alive". When they found out that saying the burning thing actually showed animus and worked against them, they cooked up the code phrase.

  • 72. Tony MinasTirith  |  February 2, 2015 at 6:32 pm

    I didn't see anyone mock scream4ever or say "neener neener", only correcting a mistake by providing facts. And scream4ever graciously acknowledged his mistake. Someone else continued on after the attempt to gently correct without correcting I've never heard of that case, tell me about it. Perhaps He had knowledge of something we didn't. Neener Neener? Hardly.

    Saying anyone here has been rendered asunder [into parts] is just a bit of drama and hyperbole isn't it really? On occasion it's necessary to forcefully relay the facts because some tend to be obstinate or argumentative. If one can't take some good natured ribbing, perhaps the game's too rough?

  • 73. bayareajohn  |  February 2, 2015 at 6:35 pm

    No, he didn't reply in this chain at all.

  • 74. VIRick  |  February 2, 2015 at 6:35 pm

    "His lone opinion would then be a concurrence on the final outcome and a dissent on the opinion of the majority of 5."

    Tony, Yes, but don't use the word, "dissent," in this context. His lone opinion would then be a concurrence with the majority of 5.

    Save "dissent" for whatever argle-bargle Scalia spews forth.

  • 75. VIRick  |  February 2, 2015 at 6:38 pm

    And I concur with your concurrance.

    Oh wait! Since no reasoning was stated, so that we could then come to the same conclusion using a different rationale (which is what a concurrance is all about), we simply have to agree with Zack, while we all watch in ecstacy and jubilation as the fat lady rises from her seat to begin singing.

  • 76. Tony MinasTirith  |  February 2, 2015 at 6:40 pm

    But as there was no beef with Hollingsworth in the beginning, only Brown, I wouldn't see that Perry would have "versed" or Sued the senator. It seems to me Hollingsworth would have stayed on the sidelines (not being one who enforces state laws on marriage) had Brown defended Prop 8. But it's all moot because Hollingsworth v. Perry concluded in Judge Vaughn Walker's Court with Brown supporting Walker's decision in Perry.

  • 77. Tony MinasTirith  |  February 2, 2015 at 6:46 pm

    "…perfect perfection might make the entire enterprise somewhat scary…"

    Rick, no one's perfect. You correctly, correct me constantly ;D

    I don't mind being corrected… when I'm wrong:D
    Don't correct me when I'm correct though! 😀

  • 78. Mike_Baltimore  |  February 2, 2015 at 6:51 pm

    Off topic (and I haven't seen any discussion of this specific topic. If so, please excuse).

    NBC News is reporting that "Obama's Budget Includes Social Security Benefits for LGBT Couples"
    ( http://www.nbcnews.com/news/us-news/obamas-budget… )

  • 79. VIRick  |  February 2, 2015 at 6:52 pm

    "Don't correct me when I'm correct though! :D"

    Tony, where did this happen? I just concurred with your concurrance, and then corrected us both!!! LOL

  • 80. Tony MinasTirith  |  February 2, 2015 at 6:58 pm

    Rick,

    You always correct me when I get a little over excited and cross my circuits or mix up my judges. You know…saying Hinkle when I meant Shelby or when I say 8th when what I really meant was "11th". And sometimes it's just a sign of "oldtimers" setting in ;).

    My fingers have a mind of their own sometimes and do what they want…and OFTEN when I'm typing on my 4" iphone SIRI "auto-corrects" me and makes me say things I did't intend to say.

  • 81. Tony MinasTirith  |  February 2, 2015 at 7:09 pm

    Sir! Yessir… sir.

  • 82. VIRick  |  February 2, 2015 at 7:10 pm

    Tony, Let's kiss and make up. People often tell me I'm too "pushy," but that's not the intention, even if it might sometimes be the perception. And any perceived nit-picking is definitely NOT something I want anyone to take personally. We all make mistakes. My "mistake" is simply being too "pushy."

    However, I apparently have this anally-motivated desire to "keep the record straight." Oh wait a sec! Let me re-phrase that. I have this anally-motivated desire to keep the record properly gay.

    Whatever we write here is widely-read, copied, and then repeated,– mistakes and all. We must remember the broader audience well beyond EoT. To my way of thinking, a mistake, if spotted, ought to be immediately corrected, lest it be copied and repeated.

    In your enthusiasm, you write a lot. So, once in a while there's a small factual error. I'm not picking on you whenever I offer a correction. I do it all the time, and I do it to everyone. Everyone has an equal opportunity of being hit. Just watch me back, and hit on me whenever I fluff out a mistake. I've been caught twice now, so far, with my pants down around my ankles. See if you can make it a third time.

  • 83. Tony MinasTirith  |  February 2, 2015 at 7:22 pm

    "…if spotted, ought to be immediately corrected, lest it be copied and repeated…"

    I whole hardheadedly concur with what you just said Rick. I've been tricked with mis-information on here before and would have gone on believing the incorrect information if some helpful people hadn't have pointed out the mis-information or sometimes "dis"-information. DrDave is good about that.

    But I'm not sure what there is to kiss and make up for. I want you to correct me when I'm wrong. As far as I know, between you and me, there is no case or controversy. 😀
    I'd hold it against you if I found out later you allowed me to continue making dumb mistakes, when you could have stopped me.

    Isn't this place called "Intense Debate"? If you can't present the facts without being accused of putting others "asunder" (into pieces), then they should call this place, "Mild Disagreement" no?

    But as for me… I NEVER need a reason to kiss! Just sayin…

  • 84. Tony MinasTirith  |  February 2, 2015 at 7:31 pm

    President Obama has and continues to do more for the progress of the GLBT community than all the other 43 previous POTUS' combined.

    Not to be outdone by Anthony Kennedy.

  • 85. DrBriCA  |  February 2, 2015 at 7:39 pm

    Whoops! Thanks for the catch, VIRick. I did mean to say SC and was thinking SC, but I guess SD slipped into my mind based on the other post today about both sides asking to expedite the appeal alongside Missouri & Arkansas. Or maybe it's because I was on call last night….

    Thanks for appreciating my flaws along with my talents!

  • 86. VIRick  |  February 2, 2015 at 7:41 pm

    Mike, there could be an unmentioned timing issue involved in that the proposed budget will carry on past the point in time when the anticipated Supreme Court ruling is handed down. The proposed budget needs to make provision for that eventuality.

  • 87. DrBriCA  |  February 2, 2015 at 7:46 pm

    Sort of like how the 9th Circuit ruling in Latta was unanimous, but Berzon wrote a concurrence to discuss how sex discrimination applied (but clearly this position was not taken up by the other two, otherwise it would've been in the controlling decision).

    In fact, correct me if I'm wrong, but wasn't this the circuit where the author Reinhardt, himself wrote his own concurrence to throw in his extra two cents?

  • 88. VIRick  |  February 2, 2015 at 7:52 pm

    "…. the most anal perfectionists will rend you asunder …."

    Hop, I stayed out of this one entirely. I swear, I stayed out. You can even inspect the anal groove to be certain.

  • 89. Mike_Baltimore  |  February 2, 2015 at 8:06 pm

    There is a mention of the 'end of session' SCOTUS decision, but there is little detail about it in the article. In fact, the only indication in the article that this might annul part of the budget seems to be:

    "Thirty-six states plus the District of Columbia allow gays and lesbians to wed. The U.S. Supreme Court is set to answer the question of where same-sex marriage must be allowed nationwide by the end of its term this summer." (I think the author was attempting to 'stay neutral' on ME.)

    One has to carefully read between the lines of that paragraph, though, and understand several issues, to understand that the ruling from SCOTUS might have an effect on the President's proposed budget.

  • 90. Raga  |  February 2, 2015 at 8:07 pm

    Must watch (if you haven't seen this Daily Show segment before):
    http://thedailyshow.cc.com/videos/6eyy59/look-who
    And his CNN interview too:
    http://www.youtube.com/watch?v=NLEyMKbSA2k
    Both of the above are referenced in the Sixth Circuit opinion.

  • 91. VIRick  |  February 2, 2015 at 8:09 pm

    DrBri, you're too charmingly sweet!

    I knew exactly what you meant, and realized that South Dakota is in today's news, while the correct state, South Carolina, is not. But otherwise, your recounting of the stay denials, and the ever-decreasing diminuation in the threshold level for said stay denials, was perfection personified, particularly with regard to this latter portion of your analysis. The bar has dropped quite considerably, so in due course, as soon as Alabama is settled, the plaintiffs in both the Arkansas and Missouri appeals do need to go for it, with South Dakota in the wings, following thereafter.

  • 92. VIRick  |  February 2, 2015 at 8:15 pm

    "Thanks for appreciating my flaws along with my talents!"

    DrBri, charm and sweetness are not flaws, but rather, are precious assets which must be tenderly guarded and generously nourished.

  • 93. Rick55845  |  February 2, 2015 at 8:22 pm

    Thank you for explaining your thought process, guitarist.

    I believe that the majority that (we expect) will rule in favor of ME has tipped its hand already, numerous times, by denying cert on 6 October to seven petitions from five states where ME bans had been overturned at the Federal district court level, all of which were subsequently affirmed by three different Courts of Appeal.

    There is no reason for the justices who have controlled those outcomes so far to suddenly change their strategy. Naturally, they won't discuss the upcoming cases in advance or signal how they will rule, but there's no reason to think they will suddenly wish to be coy.

  • 94. Decided_Voter  |  February 2, 2015 at 8:54 pm

    I believe they've done that with some executions allowing them to proceed or delaying them before they hear a case at the end of the term (I think there's one coming up this term). Seems they've tipped their hand there too.

  • 95. VIRick  |  February 2, 2015 at 9:57 pm

    http://joemygod.blogspot.com/2015/02/puerto-rico-

    An anti-gay, "ex-gay" pastor in Puerto Rico named Jose Santiago has just been outed as one of Kristen Bjorn's hotties who went by the porn name of Gustavo Arrango. If you visit the link, he's the versatile, athletic bottom, upside-down, spread-eagle, getting his ass eaten, giving new meaning to the word, "rectory." Apparently, the other guy must be speaking to him in tongues.

  • 96. Tony MinasTirith  |  February 2, 2015 at 10:25 pm

    "Hop, I stayed out of this one entirely. I swear, I stayed out. You can even inspect the anal groove to be certain."

    He, Rick, really did [stay out {of it}]! I can attest to that! Rick was uncharacteristically un-involved and seemingly uninterested in the inconsequential kerfuffle. "The anal groove" not withstanding. Rick's hands and anal groove are clean…to be sure. Rick doesn't get involved in making mountains out of molehills, do you Rick…

    Rick is INNOCENT I tell you! INNOCENT!

  • 97. VIRick  |  February 2, 2015 at 10:36 pm

    Yes, correct. There were 3 opinions written, all in unanimous agreement that the bans were unconstitutional, but each offered a slightly different reasoning and rationale for reaching that conclusion.

  • 98. Tony MinasTirith  |  February 2, 2015 at 10:45 pm

    "…Apparently, the other guy must be speaking to him in tongues."

    Hilarious Rick .But I'm awful for I-Da-Ho[ans] might want to consider a more responsible name? Rick Rick Ricky Rickster….

  • 99. Tony MinasTirith  |  February 2, 2015 at 10:55 pm

    Just clicked your [definitely NSFW] link. Whoa! Makes me re-think about joining the Catholic church!

  • 100. VIRick  |  February 2, 2015 at 11:25 pm

    Tony, the porn star is not a Catholic priest. He's the pastor of something called Casa de Oración de Monte Santo (House of Prayer of the Holy Mountain), which from its peculiar name, strikes me as being one of those emotional, revivalist, pentacostal, holy-roller, saved-soul, lost-soul varieties.

    Somewhere down the way, in the comments section, there's also a reference to his fisting video, "The Hand of God."

  • 101. Tony MinasTirith  |  February 2, 2015 at 11:34 pm

    Thanks for clearing that up! I knew I didn't remember Catholic Priests being smokin' hot. So, as a pastor, he could officiate a wedding [between TWO people of the same sex]?

    And speaking of marriage between TWO people of the same sex, 147 days till June 30th! Tomorrow is Wednesday, the 11th circuit is running out of time. The clock is ticking. tick tick tick tick.

  • 102. VIRick  |  February 2, 2015 at 11:42 pm

    "So, as a pastor, he could officiate a wedding [between TWO people of the same sex]?"

    Tony, yes, he could, but I wouldn't count on him to officiate anything. Remember the opening few words of my earlier post (and the reason he's been outed): He's become an anti-gay, "ex-gay" pastor who is now in total denial.

  • 103. Tony MinasTirith  |  February 2, 2015 at 11:50 pm

    Details Details.

  • 104. F_Young  |  February 3, 2015 at 12:18 am

    Tony Minas Trith: "Roberts holds the keys to the car. Would Roberts want to take the drivers seat, or be content to sit in the back seat, handing the keys to the station wagon to Kennedy?"

    The problem with your metaphor is that every Justice has their own car. Yes, Roberts holds the keys to his own car, but he can't force the other justices to ride with him even if he is the Chief Justice.

    If four other justices would rather ride in Kennedy's car, that will be the majority opinion and there's nothing Roberts can really do to stop them, and it's doubtful he could even limit the precedential impact of the Kennedy majority.

  • 105. Tony MinasTirith  |  February 3, 2015 at 12:57 am

    All their cars except one are out of gas. My metaphor was only in reference to Roberts joining the majority and having the authority to decide who writes the majority's opinion. All I asked is will he keep the opinion for himself (driver's seat), or just hand it over to Kennedy to let Kennedy do as he will (back seat)? I never said or implied that Roberts could force the other justices into joining his opinion. As high as Roberts is, he has no authority to twist the other justice's arms. IF he can get a majority to join him in not using due process or heightened scrutiny, and that's a big IF, he will. It may have already been bartered that he will join the majority if they take the Posner route – Equal protection, no due process review necessary, and bans don't pass even rational basis, no need to go to a higher form of scrutiny. Or he joins Scalia, Alito, and Thomas on the wrong side of History, to be known as the Plessy v. Fergusson of the 21st century. It's his call. But I completely agree, he won't be forcing the other justices into his car or anything else. If he did, he'd be arrested for felony car jacking.

    F_ Young. The bottom line is that 5 or 6 (in whatever combo) come to the correct judgement that the 6th circuit's ruling must be vacated and reversed. If Roberts can avoid announcing a found fundamental right to same sex marriage (due process) or attributing strict scrutiny in this case he'll attempt to do it. How successful he'd be, I can not say. Kennedy has carefully avoided pro gay rulings using strict scrutiny in all his historic opinions. Will he do a 180? Perhaps. And perhaps Nationwide ME will be good enough to close his legacy and he'll leave strict scrutiny for another day, another court.

  • 106. montezuma58  |  February 3, 2015 at 2:17 am

    A question for the experts on court procedures and rules. In Hard v. Bentley the state is arguing that the state can disregard the provisions in a will of an out of a same sex couple wed in another state. Provisions that would automatically be provided to the couple if their marriage were recognized by the state. In Searcy the state is claiming that a will can be used by a same sex couple to get the same legal protection that is automatic with marriage.

    Are there not rules against parties in different cases dealing with the same issue from using contradictory arguments in the different cases? Regardless, it shows gross hypocrisy on the state's part.

  • 107. guitaristbl  |  February 3, 2015 at 3:51 am

    Kind of off topic but given that ND is soon going to be the only state with zero progress on marriage equality litigition I think it's appropriate :
    http://www.vice.com/read/gay-oil-field-workers-no

    It's always interesting to read about the lives of gay people in such isolated places nobody talks about. (Sadly the above article reminds me a lot of the attitudes where I live which is a quite rural area..)

  • 108. guitaristbl  |  February 3, 2015 at 3:53 am

    Which was before granting cert so we come to what I said think.

  • 109. guitaristbl  |  February 3, 2015 at 4:00 am

    It was about time the 6th did SOMETHING right.

  • 110. Wolf of Raging Fires  |  February 3, 2015 at 5:35 am

    Searcy reply: DER.

    Strawser reply: *photocopies Searcy reply*, DER.

  • 111. Wolf of Raging Fires  |  February 3, 2015 at 5:38 am

    I always want to pronounce his name, "shrivel" or "shrillville." Lol.

  • 112. Wolf of Raging Fires  |  February 3, 2015 at 5:43 am

    This is what I've been saying all along. SCOTUS is allowing states to legalize ahead of it to "soften the blow." This has been their strategy.

  • 113. Wolf of Raging Fires  |  February 3, 2015 at 5:46 am

    Priceless.

  • 114. wes228  |  February 3, 2015 at 6:29 am

    If he thinks the majority opinion goes too far, then Roberts' opinion would be a "concurrence in part, and a dissent in part."

  • 115. tigris26  |  February 3, 2015 at 6:45 am

    Off-topic…But I found the audio recording of a NPR segment I listened to on the radio a little over a week about same-sex marriage being back at the Supreme Court. Tom Ashbrook, the host of ON POINT, interviewed a long-time observer of the Supreme Court for the Los Angeles Times (David Savage), along with two people on opposite sides of the ME issue.

    I particularly enjoyed David Savage’s insight on the Supreme Court – Justice Kennedy especially – and his logic around why the Court will rule in favor of marriage equality. Savage brings up a little bit of personal history surrounding Justice Kennedy that I was unaware of:

    At the 8:00 minute mark: “Kennedy is a conservative and a Catholic…but he’s also a California Republican. I’ve covered him for a long time, and he’s always been very different from say Justice Scalia. He grew up in Sacramento. He practiced law on the Court for years in San Francisco. He knew gays…and gay couples from many, many years ago. He never had the sense that discrimination against [gays] was the right thing. He always thought that the decisions…even going back to the 1980s that upheld the sodomy laws, he thought they were wrong. He’s written opinions that state the government cannot demean loving gay couples – they deserve dignity and respect. So, even though Justice Kennedy is conservative on a whole lot of issues, he’s always seen as much more likely to side with the liberal justices on this issue.”

    David Savage also points out later in the segment how Justice Kennedy’s view of equal rights differs from the views of Justice Scalia. Scalia has always argued that the definition of equal rights has not changed since the law was added to the Constitution. However, Kennedy views the definition to be ever-changing, and that our perspective on “equality” is very relative to how we see things today.

    In case any of you want to listen to the whole NPR segment, here's the link: https://onpoint.wbur.org/2015/01/22/scotus-same-s

  • 116. Decided_Voter  |  February 3, 2015 at 8:05 am

    Kennedy may've not used heightened scrutiny in previous cases as it could be clearly justified to use for marriage equality in all 50 states in a future case – now that justification will go away and the majority would be free to use it. We've already seen that with his "searching" scrutiny in Windsor, etc. As we know using it could help with some of the right to discriminate legislation. Or his reasoning not to use it could be part of his judicial philosophy. It will be interesting to see.

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