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Eighth Circuit to hear oral arguments in three marriage cases the week of May 11

LGBT Legal Cases Marriage equality Marriage Equality Trials

In a new text-only order, the Eighth Circuit Court of Appeals has fast-tracked an appeal from South Dakota challenging its same-sex marriage ban. The order also notes that the appeals court intends to set oral arguments in that case, along with cases from Arkansas and Missouri, for arguments on the week of May 11-15.

The order says a firm date and time will be announced once the May argument calendar is completed.

The briefing schedule in South Dakota’s appeal is as follows: “Appellant’s brief, addendum, and appendix due February 27, 2015; Appellees’ brief and addendum due March 19, 2015; Appellant’s reply brief due April 2, 2015.”

The only states within the Eighth Circuit without either marriage equality or an appeal are Nebraska and North Dakota. The Nebraska case is still proceeding in federal district court.

The North Dakota case is delayed. The plaintiffs filed their final briefs on the motion for summary judgment months ago.

The Supreme Court will hear arguments in four marriage cases in late April, and they’re expected to resolve the question by the end of June.

This post has been corrected


  • 1. OctaA  |  February 4, 2015 at 8:10 am

    North Dakota is also in the Eighth Circuit, without marriage equality or an appeal.

  • 2. RnL2008  |  February 4, 2015 at 8:35 am

    Wow and this is considered "FAST-TRACKING"? By the time the 8th hears oral arguments, SCOTUS will have already had oral arguments and we will be waiting for that ruling.

  • 3. hopalongcassidy  |  February 4, 2015 at 8:44 am

    More like "half-fast tracking"…

  • 4. Rick55845  |  February 4, 2015 at 8:50 am

    That could be a good thing if it is true, as many people on this site have reasoned, that the 8th is more likely to support the bans than to strike them down.

  • 5. RnL2008  |  February 4, 2015 at 8:56 am

    Well, just because the 8th ruled against Marriage Equality before in my opinion is NOT necessarily meaning they will again, though it is probably more than likely to do so……….just saying that if they consider what they are doing is "FAST-TRACKING", then they need to read the definition of the word.

  • 6. Steve27516  |  February 4, 2015 at 9:28 am

    Thought for the day:

    Of all the great lines written over the last year in court decisions regarding marriage equality, I think this is my favorite:

    “There is no asterisk next to the Fourteen Amendment that excludes gay persons from its protections.”

    – District Judge Barbara B. Crabb
    United States District Court for the Western District of Wisconsin
    June 6, 2014

  • 7. guitaristbl  |  February 4, 2015 at 10:13 am

    The more I think about it the more I am worried rather than optimistic. They could hand down a ruling against ME a month or less after oral arguments in hopes of influencing the Supreme Court. What is needed here is just one pro equality judge to drag the process…

  • 8. Decided_Voter  |  February 4, 2015 at 10:44 am

    Additional thought for the day:

    "So far the vast judicial record and developments in constitutional law regarding marriage have been unequivocally pro-equality. Even if all the remaining federal courts below The Supreme Court ruled against it – highly unlikely – that permanent historical fact would not change."

    – Decided_Voter
    Person Who Cares
    February 4, 2015

  • 9. PaulK_VT  |  February 4, 2015 at 10:52 am

    My favorite was from Posner:

    "You don't have any empirical or even conjectural basis for your law . . . funny."

  • 10. scream4ever  |  February 4, 2015 at 11:33 am

    Also from Posner; "Go figure."

  • 11. andrewofca  |  February 4, 2015 at 11:36 am

    Overall, Barbara Crabb's was probably my favorite ME ruling. Extremely well reasoned & well written with meticulous, numerous citations. And of course Judge Shelby's, but that's probably more emotionally attachment, since it was the first post-Windsor ruling.

  • 12. scream4ever  |  February 4, 2015 at 11:40 am

    Keep in mind too that this schedule also gives ample time for the Nebraska case to be consolidated in with the other three, assuming a ruling comes down before the end of the month.

  • 13. Zack12  |  February 4, 2015 at 11:46 am

    There is nothing that is going to come out of the 8th that the 6th didn't already cover.
    If there are already five votes for our side, they aren't going to change their minds because of the 8th.
    Quit worrying and try to be positive for once.

  • 14. flyerguy77  |  February 4, 2015 at 11:54 am

    Last time they DID NOT ruled its constitutional to ban "right to get married" I remember that they ruled its constitutional to vote or something like that.. I don't recall.. I remember some of you were screaming 5th will rule against us.. Right now, likely they willl rule in favor for ME.. RIGHT give 8th BENEFIT OF DOUBT……

  • 15. Dann3377  |  February 4, 2015 at 11:55 am


  • 16. flyerguy77  |  February 4, 2015 at 11:55 am


  • 17. flyerguy77  |  February 4, 2015 at 12:03 pm

    The Justices will vote on the case during the same week as they hear the oral arguments and CJ Roberts will assign the majority/ dissenting opinions to another justice.. most likely, based on their ACTIONS since October, they will reverse 6th………..It does not makes sense if they uphold 6th while they have been denying stays……… Florida???????? IF They deny a stay for Alabama ITS GAME OVER……. I'm seeing them to grant a stay for now…

  • 18. sfbob  |  February 4, 2015 at 12:22 pm

    Only slightly off-topic:

    Gov. Rick Snyder: State will not appeal court decision on 300 same-sex couples married in March

    LANSING, Mich. – Gov. Rick Snyder said today he will not appeal U.S. District Court Judge Mark Goldsmith’s ruling recognizing the validity of the approximately 300 same-sex couples married in four counties of Michigan on March 22, 2014 and issued the following statement:

    “The judge has determined that same-sex couples were legally married on that day, and we will follow the law and extend state marriage benefits to those couples.

    “I appreciate that the larger question will be addressed by the U.S. Supreme Court this year. This is an issue that has been divisive across our country. Our nation’s highest court will decide this issue. I know there are strong feelings on both sides of this issue, and it’s vitally important for an expedient resolution that will allow people in Michigan, as well as other states, to move forward together on the other challenges we face.”

    Source:,4668,7-277–3468… (by way of Equality Case Files on Facebook)

  • 19. guitaristbl  |  February 4, 2015 at 12:34 pm

    Being cautious and restrained and not overrun by overwhelming joy (to the point of counting days towards nationwide ME) is not being negative, it's called being prudent.
    It does surprise me that I am among the younger users here probably and I am among the few who does prepare for the next day if SCOTUS rules against ME.
    Excessive optimism can turn to paralyzing devestation if the result is not what we expect. On the other hand I will be mentally prepared for the fight which will be heading back to state legislatures and ballot boxes to ensure marriage equality.

    On whether a ruling from the 8th will influence SCOTUS, we don't know that they can't come up with something different from the 6th. It's not like Sutton delivered a "great" opinion, even for the standards of anti-equality opinions, anyway.

    I am positive, but I am also considerate. What are you going to say to a couple for example in Oklahoma who has been married and taken over by the overt optimism if SCOTUS rules against ME ? I know I will tell them that nothing was certain in first place. This is not a game, people's lives and rights are at stake.

  • 20. tigris26  |  February 4, 2015 at 12:36 pm

    Posner ranks #1 with the best quotes!!

    Of all the pro-marriage equality rulings we've had so far, Posner demonstrated the ultimate takedown of the anti-gay arguments. I still listen to the 7th CA oral arguments and they always bring light to my day! 😉

  • 21. Decided_Voter  |  February 4, 2015 at 12:47 pm

    Optimist, pessimist, realist or Debbie Downer. Give your hypothetical Oklahoma couple some credit. I bet many of them know how to rejoice and still follow the eventual outcome of this – at the same time.

    "Worrying" is just what the other side wants you to do. "Worrying" hasn't changed any court cases so far. The LGBT side has a great set of facts on their side and judges are seeing them. Enjoy it. That's reality.

  • 22. Eric  |  February 4, 2015 at 1:20 pm

    I would tell the Oklahoma couple to move to where they aren't persecuted by superstition.

  • 23. guitaristbl  |  February 4, 2015 at 1:21 pm

    That's also what bigots are telling them. If they don't like the laws to move to another state. Interesting..

  • 24. guitaristbl  |  February 4, 2015 at 1:23 pm

    "The LGBT side has a great set of facts on their side and judges are seeing them."

    And yet we are discussing on the basis of a borderline 5-4 ruling. You base your belief that judges, like common people, cannot be bigoted or blind to facts or too invested to "states rights".

    Worrying is the prudent thing to do. Nobody has ever won anything with arrogance. Be humble, be cautious and be ready for the next day. I know I will. Everyone has the right not to.

  • 25. Mike_Baltimore  |  February 4, 2015 at 1:25 pm

    A Hail Mary pass in football does not make sense.

    A constant lateral passing (in football) while running through the opponent's marching band does not make sense.

    A more than 1/2 court shot in basketball does not make sense.

    And yet, we still see those types of plays, even when they fail 99% of the time.

    The 8CA almost assuredly will not come up with any new arguments that won't be argued by the 6CA. But that does not mean they won't have new arguments, just that they almost assuredly will not.

    And as for "Justices vot[ing] on the case during the same week as they hear the oral arguments", the Justices vote on cases during conferences. The first conference after oral arguments is May 1, but that is only two days after the oral arguments. The next scheduled conference day is May 14. The first non-conference session is May 4, the Monday of the week following oral arguments.

    I think it is extremely unlikely that the Justices will vote on the case the same week as oral arguments are made. And the rules of SCOTUS don't say the court MUST announce the decision when they vote on it.

    I'm an optimist, but I am also a realist. I am of the opinion that SCOTUS will overturn the decision of the 6CA, but will announce the decision in late June, as SCOTUS rarely announces major decisions weeks or months before the end of the term. I am fairly certain you'd be hard pressed to find many who aren't of the opinion that the SCOTUS ruling will not be a major decision, no matter how SCOTUS rules.

  • 26. Decided_Voter  |  February 4, 2015 at 1:41 pm

    I base my beliefs on the facts (i.e. reality) of the dozens upon dozens of wins and the few losses and the legal arguments in them, but I understand that's difficult to see from a half-glass full perspective.

    I'm glad the LGBT lawyers don't "worry" as that wouldn't be prudent – they go by the facts and judicial history. I've been reading this site for a few years. In my observation, most people are humble and realistic. It's been great to see their posts evolve as the wins have been stacking up – after all, they're just reflecting reality. There are 1 or 2 that worry as it must be part of their DNA. Very few are arrogant.

  • 27. guitaristbl  |  February 4, 2015 at 1:49 pm

    And still SCOTUS has every right (and there is the possibility) to rule against ME and overturn these rulings. Still Kennedy's "states rights" side wins his internal battle and we get a 5-4 opinion against ME.

    Lawyers have to go to court and present their case. They have to answer Scalia's questions even though they could tell him "why answer your questions you will vote against anyway". They have to do the best they can and be proud of the job they did. Again that does not guarantee the result.

    Let me be the bad one that worries and gets the thumbs down then. And let me be the one who will be around here in the end of June to celebrate with everyone if the ruling is positive and cheer them up and get them more determined than ever to fight for marriage equality state by state if the ruling is negative. It does not hurt to have one of my type on the forum to keep the balances.

  • 28. Zack12  |  February 4, 2015 at 1:57 pm

    We all worried but that is far different from stating in every other post SCOTUS will rule against us.
    You present every worse case scenario and declare SCOTUS will follow suit.
    I fully expect the 8th circuit to rule against us but that doesn't mean Kennedy and the others will take anything out of that ruling seriously.
    Yes, SCOTUS could rule against us but everything Kennedy and the others have done suggests there are five votes.
    You be negative for the next four months, the rest of us will refrain from doing so and be better for it.

  • 29. Zack12  |  February 4, 2015 at 2:06 pm

    I'm not holding my breath for a positive ruling here.
    IMO, it is a chance for some of the bigots on there to audition for a SCOTUS seat and nothing more.

  • 30. guitaristbl  |  February 4, 2015 at 2:06 pm

    And on that last sentence of your comment, I remain skeptical, sorry, but I do.
    And I do not post it on every other post. I just provide my estimation on every event that's happening and what it could mean. When its positive, I react in a happy way, when its ambigious or negative I react accordingly and try to see the consequences.
    Everyone is free to disregard everything negative and focus on the positive ones.
    I prefer to believe that a balanced approach is preferable.

  • 31. RnL2008  |  February 4, 2015 at 2:09 pm

    I do understand…..and to be honest….I seriously doubt a ruling will come from the 8th before SCOTUS rules!

  • 32. Decided_Voter  |  February 4, 2015 at 2:27 pm

    I see the perspective you've chosen and will approach your posts accordingly keeping that in mind.

  • 33. RnL2008  |  February 4, 2015 at 2:27 pm

    Nailed it:-)

  • 34. RnL2008  |  February 4, 2015 at 2:29 pm

    If SCOTUS was going to rule against us, they would have granted cert back in October before all of these couples had gotten married……NOT after the fact, which would NOW created a chaotic mess!!!

  • 35. guitaristbl  |  February 4, 2015 at 2:31 pm

    Thank you for understanding my point of view.

  • 36. RQO  |  February 4, 2015 at 2:31 pm

    Yes. Her opinion was not, perhaps, stirring in style, and it also is a bit lost in the middle of the pack of 50+ decisions, BUT I would add "encyclopedic" and "thorough" to meticulous and numerous citations in description. Perhaps Posner could be almost breezy in his Appellate opinion because she had covered the ground so completely. If I could direct people like Alabama Justice Moore to read just two opinions for strict legal reasoning, it would be Crabb's and Friedman's Michigan trial record demolishing "expert testimony" of Regnerus, et al..

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

    That rules out about 35 states.

  • 38. flyerguy77  |  February 4, 2015 at 2:49 pm

    Actually, they vote on the cases after they hear the oral arguments during the same week
    Forming opinions
    The conference: assignment of opinions

    At the end of a week in which the Court has heard oral arguments, the Justices hold a conference to discuss the cases and vote on any new petitions of certiorari. The Justices discuss the points of law at issue in the cases. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate.[14] At this conference, each justice—in order from most to least senior—states the basis on which he or she would decide the case, and a preliminary vote is taken.

    Justice Scalia has professed frustration that there is little substantive discussion,[15] while former Chief Justice Rehnquist wrote that this makes the conference more efficient.[16] The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices; the most senior Justice voting in the majority (but always the Chief Justice if he is in the majority) makes the assignment, and can assign the responsibility to him or her self.

  • 39. brandall  |  February 4, 2015 at 2:51 pm

    Why didn't the 8th just schedule orals for 6/30/15? This way they could ask questions from the SCOTUS ruling that will be issued that day.

  • 40. VIRick  |  February 4, 2015 at 3:06 pm

    "I fully expect the 8th circuit to rule against us …."

    Zack, I don't. Here's why: Nebraska.

    Judge Bataillon will slam them with a ruling that will knock their socks off, and will time it in such a way that it will derail their present briefing/oral argument schedule.

    The 8th Circuit Court normally sits in St. Louis MO. Yet, they've already announced that oral arguments in the three appeals (Arkansas, Missouri, South Dakota) will be held in Omaha NE. Judge Bataillon sits in district court in Omaha. So, why are they coming to Omaha? It appears they're already planning for a fourth appeal. But their current schedule will be up-ended (and Judge Bataillon will see to that), and they simply won't have enough time to rule (other than to rule in accordance with the Supreme Court, once that decision is handed down).

  • 41. Zack12  |  February 4, 2015 at 3:28 pm

    Last post on this.
    You aren't giving a balanced approach, virtually every one of your posts is the worst case scenario about why SCOTUS will rule against us.

  • 42. Zack12  |  February 4, 2015 at 3:33 pm

    I'm hoping for that as well.
    Anything to delay them is good for us.

  • 43. DrBriCA  |  February 4, 2015 at 3:35 pm

    Still beats the "twice fast-tracked" Nevada or even Texas, which was heard 11 months after the district ruling!

  • 44. DrBriCA  |  February 4, 2015 at 3:50 pm

    Wouldn't that be fun?

    "Hang on, your Honors, we're getting a satellite call from Justice Scalia:"

    —"*&$&*#!!! @*!&@&#!!! Argle Bargle. F!!!!"—

    "I believe we have our answer!"

  • 45. wes228  |  February 4, 2015 at 3:51 pm

    If states' rights were truly his concern then Kennedy's opinion in Windsor would have been based on state rights/federalism claims, which it wasn't. He also didn't care about states' rights to outlaw sodomy or pass discrimination measures against gay people.

  • 46. DrBriCA  |  February 4, 2015 at 4:01 pm

    Exactly. Everyone wondered in 2013 if SCOTUS (namely Kennedy) might take the easy way out for Windsor and rule that it was a state rights case with the federal government unconstitutionally recognizing a state-recognized union. But Kennedy instead ruled based on the 5th Amendment and how there would be unequal protection for married same-sex families as compared with married opposite families.

    Anyway, back to the topic for guitaristbl, unless we have the 3 nastiest judges all on the panel, I highly doubt that the 8th circuit will rush out a decision before the end of June, especially one that most likely would be quickly overturned in light of the new national precedent that is about to arrive!

  • 47. VIRick  |  February 4, 2015 at 4:06 pm

    —"*&$&*#!!! @*!&@&#!!! Argle Bargle. F!!!!"—

    DrBri, you nailed that one,– a perfect Scalia quote!

  • 48. DrBriCA  |  February 4, 2015 at 4:10 pm

    I probably should've added in him saying the rosary at some point, too, but you know….

    Thanks, Rick! I always appreciate the compliments!

  • 49. David_Midvale_UT  |  February 4, 2015 at 4:19 pm

    Judge Shelby's ruling gets extra points for Karma (Mormon judge recommended by Mormon senators in the Mormon Theocratic Export-the-Animus "We want people to recognize our claim to be Christians, but we can't bring ourselves to follow the principle that Jesus called the Second Greatest Commandment" "Will no one think of the children?" State).

  • 50. tigris26  |  February 4, 2015 at 5:18 pm

    I understand your desire to be cautious. I agree that it is practical to weigh out all the possible outcomes. Perhaps that will intensify your excitement/celebration in June when the Supreme Court rules. 😉

    I usually take the cautious route as well. Nevertheless, I remain fairly optimistic about this because after taking into account ALL of the factors, legal experts' logic, etc. the odds are undeniably in our favor. That's not a guarantee, by any means. BUT a negative ruling just seems SO UNLIKELY.
    The result of a negative ruling would be so disastrous (what a HUGE MESS it would make!) that I can't fathom the Supreme Court (particularly Kennedy) wanting to cause that. Not to mention it would just eventually come back to the Court. Logically, they are better off making a nationwide ruling and settle it now. This is just ONE of the few logical reasons for a pro-marriage equality ruling.

    But again, I respect your desire to be cautious. I hope your worrying doesn't cause you too much stress.

  • 51. Eric  |  February 4, 2015 at 6:09 pm

    The difference being that the bigots are making those statements and currently losing.

  • 52. Eric  |  February 4, 2015 at 6:10 pm

    Kennedy is a libertarian, not a statist.

  • 53. Mike_Baltimore  |  February 4, 2015 at 11:37 pm

    "Worrying is the prudent thing to do."

    There is an old saying that the only thing worrying does is to cause ulcers. I don't think it goes that far, but worrying can definitely increase the probability of ulcers, and is a good indication that the person who constantly worries is most likely a pessimist.

    A person can be a realist, and still be an optimist. even if things don't go the way they wanted. Or a person can be a worrier and end up with the possibility of an ulcer, and make people around them upset to unhappy (or worse). Worrying never changed an outcome, but not worrying can help lessen the probability for an ulcer.

    One of my father's sisters was almost blind from birth (she had about 10% vision in her 'good' eye, none in her other eye). Then on VJ Day, she was in an accident (caused by a drunk) that drove her brother off the road. The only person injured was my aunt, and the only injury was glass in her 'good eye. There was so much glass in that eye the medical staff had to remove her eye, thus making her totally blind. Aunt Irene was a life-long teatotaller, and the drunk was the cause of the vast majority of her problems from that day forward. Yet aunt Irene was one of the most optimistic persons I've ever met.

    On the other hand, my mother formerly worried about everything, maybe because her first husband (my father) died of a heart attack less than five years after she married him, and her second husband (my first step-father) died of a heart attack less that five months after she married him. She eventually stopped worrying, so much that several of my cousins asked me why she was still concerned about things, but did not worry about them as she had in the past. I told them the answer to their question could only be answered by my mother.

    Now if only someone or something can change her opinion of instant coffee, and start drinking REAL coffee. I guess some people can't change everything.

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