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Nebraska same-sex marriage ban ruled unconstitutional

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A federal judge has just struck down Nebraska’s ban on same-sex marriage.

Judge Joseph F. Bataillon is the same federal judge who struck down Nebraska’s ban in 2006 in Citizens for Equal Protection v. Bruning. The Eighth Circuit Court of Appeals reversed his decision, upholding the ban. That case didn’t involve a direct challenge to the ban, rather it involved a challenge to the political process for LGBT people in Nebraska.

The court writes, “For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner. The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender. It is time to bring this unequal provision to an end.”

The injunction has been temporarily stayed until 8AM, March 9, 2015. The injunction is here.

UPDATE: The state has filed a notice that it will appeal the decision.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  March 2, 2015 at 7:17 am

    Love it! Better yet, only a 7-day stay! This completes all pending Federal district cases for states with marriage bans. The remaining 2 states (GA and ND) won't issue opinions pending SCOTUS.

  • 2. guitaristbl  |  March 2, 2015 at 7:19 am

    That took longer than expected. Thank you again judge Bataillon. The 8th will grant the temporary stay but the good thing is that may slow things down if they decide to hear it along with the other cases.

    Congrats Nebraska ! Down to 2 states without a ruling striking down their ban !

  • 3. Zack12  |  March 2, 2015 at 7:35 am

    The bigots have already filed their appeal.
    Will of the voters blah blah, children need mother and father blah blah, it's nothing we haven't seen before.

  • 4. Raga  |  March 2, 2015 at 7:43 am

    SCOTUS has released the orders list. Cert denied to on the Prop 8 petition. No action taken on the Idaho petitions. I guess they are holding on to them as per usual procedure.

  • 5. brandall  |  March 2, 2015 at 7:50 am has just appealed their case to God. No word yet on whether He will grant cert from the Supremest Court. I can't find His URL. Does anybody have a link?

  • 6. Sagesse  |  March 2, 2015 at 8:00 am

    Schadenfreude is always sweet.

  • 7. brandall  |  March 2, 2015 at 8:00 am

    Off topic: The political platform of the (guess which state) Republican Party states: “We oppose any special rights based on sexual or behavioral rights” and defines “marriage as being between one man and one woman.” In case the message isn't clear, the platform also affirms: “We believe public policy and education should not be exploited to present or teach homosexuality as an acceptable 'alternative' lifestyle. We oppose same-sex partner benefits, child custody, and adoption.”

    This is part of platform voted last weekend in ….. California. No wonder there are no CA GOP elected state level officials.

  • 8. DJSNOLA  |  March 2, 2015 at 8:11 am

    Its amazing how that party still allows itself to be held hostage by these guys. I was listening to POTUS channel on Sirius Xm the other day and they had Mike Huckabee on. The host was grilling him about Gay Marriage and how the fights all but over and Huckabee said its just beginning. LOL I could hear in the hosts voice how flabbergasted he was by him and his serious denial of the current situation. Kind of pathetic really.

  • 9. Zack12  |  March 2, 2015 at 8:15 am

    The CA GOP used the bigotry card against Latinos to help get Pete Wilson reelected governor of California in 1994.
    It worked but that forever turned off most of the state's growing latino population from voting Republican, which is why they are now virtually wiped out in that state.

  • 10. guitaristbl  |  March 2, 2015 at 8:18 am

    Ok read the whole thing. It's an interesting ruling full of citations, judge Bataillon obviously appreciates precedence and judicial history in general. He makes a convincing case when it comes to gender-based discrimination (basically quoting judge Berzon throughout) and adds the harm to children argument that Kennedy will love (I suppose the SCOTUS justices will bother to pay some attention to all those opinions issued since December 2013). My favourite part though has to be on page 30 :

    "To the extent the State's position is that it has an interest in promoting family stability only for those children who are being raised by both of their biological parents, the notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational—it is constitutionally repugnant."

    Reminds me a bit of Reinhardt's sharp words when he said that the constitution simply cannot tolerate such discrimination.

    And after that paragraph a note quoting the famous "Go figure" paragraph by Posner.

    All in all another very good ruling.

  • 11. A_Jayne  |  March 2, 2015 at 8:24 am

    We all like to think of the coming SCOTUS decision as our "Loving v Virginia" because of the obvious comparisons.

    Christianist Dominionists (Mike Huckabee, et al) think of the coming SCOTUS decision as the Civil Rights Act of 1964 and plan to keep trying over the next 50 years to hold us back in as many ways as they can possibly imagine.

  • 12. DJSNOLA  |  March 2, 2015 at 8:32 am

    Republicans seem to love Pyrrhic victories.

  • 13. DJSNOLA  |  March 2, 2015 at 8:34 am

    At least the California GOP finally voted to recognize Log Cabin Republicans. Baby steps it seems is all the GOP can muster.

  • 14. Wolf of Raging Fires  |  March 2, 2015 at 8:36 am


  • 15. Silvershrimp0  |  March 2, 2015 at 8:40 am

    Based on the average time between arguments and decisions from the 5th circuit, we should be hearing something soon. Fingers crossed for good news this week.

  • 16. Decided_Voter  |  March 2, 2015 at 8:49 am

    Interesting article on the state of the GOP in CA. Always important to focus on local elections regardless of party. Politicians have to start out somewhere.

  • 17. Zack12  |  March 2, 2015 at 8:49 am

    The ruling will either be this week or next.
    Let's hope it's a good one.

  • 18. DJSNOLA  |  March 2, 2015 at 8:51 am

    I am curious to see what they do here if anything. We sort of lucked out with the judges but even if we get a positive ruling they can petition for en banc. Do most Circuits lift stays during the period leading up to En Banc? Seems more than likely the Supreme Court will rule on this by then. Just trying to go through potential scenarios here.

  • 19. 1grod  |  March 2, 2015 at 8:53 am

    "An unabashedly gender-specific infringement of the equal rights of its citizens"
    In recently reviewing the four opening briefs to the Supremes, I commented that the personal stories of the 15 couples with 18 children and a dependent adult powerfully brought to life the day to day reality of this Injustice. Judge Bataillon appears to be touched by the lives of the 7 couples with 5 kids before him, in particular Sally Waters. His statement regarding Jason's circumstances jump out at me from the page "He has no legal relationship to the child who knows him as "Daddy." p 31 He and the counsel of record in the Kentucky opening brief parroted one another in the following: To the extent the State's position is that it has an interest in promoting family stability only for those children who are being raised by both of their biological parents, the notion that some children should receive fewer legal protections than others based on the circumstances of their birth [conception] is not only irrational,it is constitutionally repugnant [p 30]. Kentucky went on to say: 'penalizing the child is an ineffectual as well as an unjust way of deterring [his or her] parent.” …It's all the more unjust and ineffectual to punish the child in order to influence not the child’s parents, but someone else’s parents.

  • 20. Zack12  |  March 2, 2015 at 8:58 am

    They don't but SCOTUS can overrule them on that.

  • 21. DJSNOLA  |  March 2, 2015 at 9:01 am

    Ok so the plaintiffs can petition to have the stay lifted to the Supreme Court? Assuming there was a favorable ruling its possible marriage could come to the fifth circuit before June? An unfavorable ruling would mean marriage waits til June at the earliest, when I think most of us believe the Supremes will rule in our favor.

  • 22. Eric  |  March 2, 2015 at 9:31 am

    "Special rights based on sexual or behavioral rights," but isn't that the whole basis of the procreation argument?

  • 23. Eric  |  March 2, 2015 at 9:39 am

    It's a long running Christian meme, punishing third-parties for the actions of others. It began with their original sin mythology.

  • 24. VIRick  |  March 2, 2015 at 9:59 am

    Brandall, sometimes I wonder about you,– but in a good way! LOL

  • 25. jdw_karasu  |  March 2, 2015 at 9:59 am

    He consulted with Jesus, or Himself, depending on how one views the relation between Himself and Jesus. He wonder what Jesus thought about the gays, and all this marriage equality stuff that has His people all in an uproar.

    Jesus said there's a reason that he didn't bother talking about the gays in The Gospels: he loves gay people just like he loves all the children of God, all in the manner God made them regardless of the color, sex and sexuality that God gave them. Jesus then said it's best not to say anything bad about people, so he'd just keep this thoughts to himself about the jackasses invoking His name to attack gay people just like they did and do people of color and women.

    God tried to keep a straight face.

    Then He denied the petition of ProtectMarriage and hoped they would crawl under a rock and stop invoking His name before He got pissed and gave them a one way ticket to Hell.


  • 26. brandall  |  March 2, 2015 at 10:04 am

    "God tried to keep a straight face."

    As opposed to His gay face? I know, really bad. Couldn't resist.

    I'm very happy about this ruling because it also stops NOM from their related types of court actions for withholding contributors names. As these organizations try to now push more blatant orientation discrimination laws, they will find their fund-raising efforts greatly curtailed.

  • 27. SoCal_Dave  |  March 2, 2015 at 10:06 am

    Good, I'm glad they are not going to teach that homosexuality is an "alternative lifestyle". Homosexuality is not "a lifestyle", it's a plain fact of life. And it's not alternative for those of us who happen to be gay.

    [of course I'm sure that's not what they meant, but still…]

  • 28. Tony MinasTirith  |  March 2, 2015 at 10:11 am

    Yeah… what's up with that?! Punishing posterity hundreds of generations later for something they had nothing to do with.

  • 29. jdw_karasu  |  March 2, 2015 at 10:12 am

    Need to make sure to include the last sentence of the paragraph:

    "The State's emphasis on a biological connection creates a further discriminatory classification – drawing a distinction between biological and adopted children."

  • 30. sfbob  |  March 2, 2015 at 10:19 am

    One positive feature of this and another recent ruling (or perhaps it was one of the briefs to SCOTUS on the current Sixth Circuit appeal; tough at this point to keep track) is, specifically on page 29 of Judge Batallion's ruling:

    "The State's supposed purpose in channeling children into stable relationships is not served by a same-sex marriage ban. It is both underinclusive in that it allows heterosexual people to have and rear children in unstable or abusive situations and at the same time prevents committed and stable same-sex couples from adopting and providing loving homes to children."

    Active alcoholics and drug addicts as well as convicted sex offenders are able to marry and to reproduce without the interference of the state, provided of course that they are heterosexual. While it's inevitable that eventually we're going to see bad behavior in gay or lesbian marriages and bad parenting by gay and lesbian couples (because although we really want to believe otherwise we're neither better nor worse than the general population…nor do we have to be) the states' arguments imply that all of us are poor models and that all heterosexuals are good. And of course no state includes questions about the applicants' civic virtues or parenting abilities or lack thereof on their applications for marriage licenses.

    Bataillon also notes that the state's proffered rationale of favoring biological connection attacks both adopted children and those conceived by IVF. It's a wonder to me that states even include this sort of argument anymore given how obvious the (presumably unintended) implications are.

    The best part of Bataillon's decision though is his final statement:

    "The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender. It is time to bring this unequal provision to an end."

  • 31. Tony MinasTirith  |  March 2, 2015 at 10:25 am

    We know now that SCOTUS does not have the votes to grant a state's request for a stay of an injunction to their SSM bans. I wonder if SCOTUS has the votes to overturn stays if granted by the 5th and 8th circuits. If SCOTUS overturns stays by the circuits… the fat lady has sung (as if she hasnt already). Y'all can start planning your June n July weddings.

    120 Days till Narionwide ME presuming a June 30th announcement by SCOTUS. Still hoping they'll rule from the bench in April 😀

    Great way to start a new Month! Another ban bites the dust!

  • 32. Raga  |  March 2, 2015 at 10:33 am

    Sorry, but SCOTUS is not going to rule from the bench! This Nebraska ruling actually forces the Eighth Circuit to act quickly on an emergency stay request for Nebraska. Which means they will also have to address the pending motion to lift the Missouri stay, which they are currently simply sitting on without ruling. Hopefully the Missouri plaintiffs will then appeal to SCOTUS if/when the Eighth denies their second motion to lift stay.

  • 33. Eric  |  March 2, 2015 at 10:39 am

    The states also ignore that legitimacy is subject to heightened scrutiny.

  • 34. davepCA  |  March 2, 2015 at 10:42 am

    Yup. Not only does the state never apply any inquiry regarding parenting efficacy before granting a couple a civil marriage, denying a civil marriage is a completely illogical response to any couple whom the state may, correctly or not, consider to be 'sub-optimal' at parenting. Because regardless of how great or how lousy a couple (ANY couple, same or opposite sex) may be at parenting, denying them and their kids the legal protections of civil marriage ONLY MAKES IT WORSE for them, and it certainly doesn't do anything to make anyone else's marriage or parenting abilities any better.

  • 35. Tony MinasTirith  |  March 2, 2015 at 10:48 am

    Perhaps they won't. But maybe they will!!! 😀

  • 36. AndresM11  |  March 2, 2015 at 10:50 am

    Thank you Judge Bataillon!! I'm really looking forward to reading this ruling. From what I've seen in the comments, it seems to be a really touching and well written decision, one that echoes some of the most important opinions we've read during this fight (Reinhardt, Berzon's concurrence and of course the unforgettable opinion by Judge Richard Posner in the Seventh Circuit) while strongly stating that these bans are unconstitutional since they harm not only loving, committed same sex couples but also their innocent children.

    Thank you again Judge Bataillon for being in the right side of history and making (once again) the right decision.

  • 37. AndresM11  |  March 2, 2015 at 10:51 am

    Another day, another win for the marriage equality side! :) now it's time to wiggle 😀 <3

  • 38. Raga  |  March 2, 2015 at 10:52 am

    I'll bet you a million dollars they won't!

  • 39. Wolf of Raging Fires  |  March 2, 2015 at 10:53 am


  • 40. Tony MinasTirith  |  March 2, 2015 at 10:59 am

    Maybe not… but it could happen!!! 😀

    Imagine full Nationwide Marriage a equality next Month!!!!!

    We shall be free!!!!

  • 41. VIRick  |  March 2, 2015 at 11:02 am

    Yes, we're really starting to see that the "Hollingsworth" decision has some bite in it when it comes to the matter of "No Standing."

  • 42. bythesea66  |  March 2, 2015 at 11:13 am

    I wouldn't hold my breath for that, but I do think they could rule sooner than the last possible date as most currently expect.

  • 43. Mike_Baltimore  |  March 2, 2015 at 11:17 am

    I am becoming more and more convinced that SCOTUS accepted 'Hollingsworth' not to directly rule on the case, but to rule on and clarify what Article III standing actually means.

  • 44. 1grod  |  March 2, 2015 at 11:23 am

    Tony/Raga: Your 'they" is the Eight Circuit Appeals Court. The What in the 'won't' or 'will' is the Appeal Court addressing the Missouri plaintiff's lifting of the stay petition. While Raga bets $$ that they 'won't', the more pressing $$$ bet is – will the Appeals Court address the State's yet to be made request for a Stay pending Resolution of the Appeal in Waters vs Ricketts? In footnote #15 Bataillon list six recent instances where the Supremes supported lifting stays [Alabama, Florida, South Carolina, Kansas, Alaska and Idaho]. All post Oct 6. So commentators, what's your prediction? No brandall and jdw, you can not turn to the Almighty to predestine the outcome. If they do not grant the stay without addressing Missouri, isn't Missouri plaintiff's hand strengthened? To turn where?

  • 45. VIRick  |  March 2, 2015 at 11:32 am

    "…. to rule on and clarify what Article III standing actually means."

    Precisely. It wasn't completely self-evident at the time of the ruling, but subsequently, in using "Hollingsworth" as precedent, the courts have really CLARIFIED that outside third-party groups, organizations, asshats, and other assorted whack-jobs and nut-cases, do not have Article III Standing to appeal.

  • 46. Mike_Baltimore  |  March 2, 2015 at 11:33 am

    And SCOTUS has ruled from the bench how many times?

    Lower Federal and state courts can and do, but SCOTUS (to my knowledge) does not.

  • 47. VIRick  |  March 2, 2015 at 11:55 am

    "And SCOTUS has ruled from the bench how many times?"

    To answer your question directly, the answer is "Zero."

    As far as I am aware, just like you stated, SCOTUS does not rule from the bench. Also see SteveThomas' reply below explaining why this is so.

  • 48. jdw_karasu  |  March 2, 2015 at 12:13 pm

    Completely agree with Raga. There is no way they rule from the bench. Kennedy likely will want to clear up what type of class gays are for future rulings, as he's tap danced around that for years and now has various courts trying to read-between-the-lines on his rulings. Much like Romer and Lawrence set up the eventual marriage equality cases, Kennedy knows that he's going to be dealing with stuff like the Arkansas law (which is going to get crammed through every state with a strong combo of Legislature+Governor)… and dealing with it before long.

    Now the tricky part is *how* he wants to deal with all these post-ME issues. Kennedy has long been perfectly okay with discrimination against women and minorities. Gay rights is one of the exceptions to that, and even there he hasn't been perfect:

    * Boy Scouts didn't go our way, and there were four votes on our side that he could have joined to make it a victory

    * Christian Legal Society went our way with him joining the four on our side

    It's possible to ponder that he wasn't ready in 2000 with the Boy Scouts case, especially since it has the potential to be a classic scare case: The Gayz Can Now Get Our Boys! Perhaps the flip on Christian Legal Society is a reflection of that.

    Anyway, he's knows he's going to have to deal with more cases relating to discrimination against gays. A lot of them, and at least one of them will require a ruling that firmly defines the class gays fall under. To help cut off those future case, he might use these case similar to how Windsor came to be used: Judges saw it as opening the door and asking them to walk through it.

    If he finally gets off the pot and defines gays, we likely will see a lot of rulings in the coming discrimination cases similar to what we've seen in ME: a large majority striking down the new laws, while a few conservative judges at the District and Circuit levels gnash their teeth and howl at the wind.

  • 49. josejoram  |  March 2, 2015 at 12:13 pm

    When you think we cannot have more poetry in this, comes another judge to teach us that it can get better.

  • 50. RobW303  |  March 2, 2015 at 12:20 pm

    No, but God has a Twitter account. Drop him a line there. Supposedly, he follows everyone, so you should be able to PM him.

  • 51. Dr. Z  |  March 2, 2015 at 12:25 pm

    I suspect Kennedy doesn't see it as "tapdancing". Kennedy doesn't like the heightened scrutiny framework and thinks that "animus" is a cleaner and more direct legal framework. But he can't convince enough of his colleagues to climb onto the animus bandwagon. It's an impasse. They need him for the fifth vote. He won't go as far as the four liberals want, and they won't go as far as he wants. Don't hold your breath waiting for a resolution anytime soon.

  • 52. RnL2008  |  March 2, 2015 at 12:27 pm

    Good, then I won't waste the time to read it…….but I do have a question and maybe one of you wonderful smart individuals can answer it for me……here is the Question, "How does denying Gays and Lesbians the right to marry have ANY impact on opposite-sex couples getting married? Staying Married? Or becoming more Procreative Responsible?

    Sorry, that was 3 questions…… guess is the infamous comment by Charles Cooper to Judge Walker….."I don't know"!

  • 53. RobW303  |  March 2, 2015 at 12:27 pm

    Isn't that the basis of "sincerely-held religious objections", since religion is chosen, not innate?

  • 54. RnL2008  |  March 2, 2015 at 12:28 pm

    Found it:

  • 55. SteveThomas1  |  March 2, 2015 at 12:29 pm

    Rulings from the bench only come from district courts, for the simple reason that there's usually only one judge (only one decision maker) in a district court: that one judge can make up his or her mind on the spot and tell folks so. Courts of Appeals have either three judges or (in en banc cases) more than three judges on the panel. Even where each member of the panel has made up his or her mind by the end of oral argument, they still must get together to vote on the disposition of the case, which is something that simply doesn't happen in open court. SCOTUS also has generally nine judges, and they must conference to decide on a disposition. Because SCOTUS cases are always published (not the case for the lower federal courts) and scrutinized, they always take a fair amount of time in preparing the opinions.

    A ruling from the bench by SCOTUS is simply not logistically possible.

  • 56. jdw_karasu  |  March 2, 2015 at 12:29 pm

    You really think that he hasn't been able to get 4 votes from the our side on animus, if that was the option he wanted?

  • 57. Dr. Z  |  March 2, 2015 at 12:44 pm

    You misunderstand me. If Kennedy says DOMA shows impermissible animus, of course the other four will join him in concurrence.

    But Kennedy wants more than that. He wants to throw out the ENTIRE levels of scrutiny framework, not just for sexual orientation but also for race, gender, etc. And that's what the others won't do.

    So Kennedy won't find that sexual orientation is subject to heightened scrutiny. He doesn't agree with the framework, period, and will not expand the list to include additional groups.

  • 58. VIRick  |  March 2, 2015 at 12:46 pm

    Rose, I don't know, I don't know, I don't know. Have all of your questions been satisfactorily answered?? LOL

  • 59. VIRick  |  March 2, 2015 at 12:50 pm

    But wait!! God DOES have a Twitter account! I've seen it.

    Every once in a while, Joe.My.God. posts some rarified missive from God's Twitter account! LOL

  • 60. RnL2008  |  March 2, 2015 at 12:52 pm

    Well, if that's the best ya got……it's an answer……but you didn't give me a wiggle…….lol!!!

  • 61. VIRick  |  March 2, 2015 at 12:52 pm

    Oh heck! And there's God's URL!! Amazing!

  • 62. RnL2008  |  March 2, 2015 at 12:54 pm

    Ask and ye shall receive…….lol:-)

  • 63. Sagesse  |  March 2, 2015 at 12:58 pm

    I've always believed that. Standing is an important legal concept, quite independent of the subject matter of the case. It needed to be clarified.

  • 64. VIRick  |  March 2, 2015 at 12:59 pm


    And Brandall thought he was being "Too Cute for Words!"

    Actually, Brandall's still "Too Cute for Words." Just don't anyone let him know.

  • 65. RobW303  |  March 2, 2015 at 12:59 pm

    And it's a good thing SCOTUS won't rule from the bench. We'd like to take away from this not only marriage equality nationwide but some clearer statement that laws discriminating against people on the basis of sexual orientation must pass at least heightened scrutiny. That would certainly not come from a ruling from the bench.

  • 66. RnL2008  |  March 2, 2015 at 1:04 pm

    You're going to make him blush……hmmm, that could be interesting to see….lol!

  • 67. Eric  |  March 2, 2015 at 1:13 pm

    When the objections manifest as behavioral, yes.

  • 68. VIRick  |  March 2, 2015 at 1:19 pm

    Rose, that would be truly adorable,– to have Brandall cutely and coyly blushing for me! LOL

  • 69. scream4ever  |  March 2, 2015 at 1:29 pm

    Yup, since Kennedy made it all but clear that he didn't want to hear it at the trial.

  • 70. RnL2008  |  March 2, 2015 at 2:01 pm

    Awww, how cute…….hopefully you two can meet in person and find common ground:-)

  • 71. DrBriCA  |  March 2, 2015 at 2:30 pm

    It'll be interesting to see how quickly the 8th will jump on the opportunity to stay the Nebraska ruling, given how much time they've slow-walked with the repeated requests to lift the Missouri stays. At least now we should get some movement!

    It definitely will be revealing if SCOTUS overturns any stay imposed by the 8th circuit. They might show deference to the circuit, or they might be persuaded to agree that there's no reason why AL and FL can have ME (with their own blessing) but states in the 8th cannot when the district rulings are the same.

    Should prove an interesting week! Fingers crossed!

  • 72. Decided_Voter  |  March 2, 2015 at 2:54 pm

    I remember him asking something like why was cert even granted and if it was properly before them, but then why wouldn't he vote with the majority? Didn't that address standing? Instead he voted with the minority which, in my understanding, meant they believed they did have standing and wanted to reach the merits.

  • 73. Rick55845  |  March 2, 2015 at 2:56 pm

    Raga, you said "Which means they will also have to address the pending motion to lift the Missouri stay, which they are currently simply sitting on without ruling."

    Why would they have to address the pending motion to lift the Missouri stay? It's not linked to any action they might take with respect to Nebraska, is it?

  • 74. SteveThomas1  |  March 2, 2015 at 3:02 pm

    This is actually an incorrect assessment, or so it seems to me, of the actual standing issue in Hollingsworth.

    The proposition "that outside third-party groups, organizations, asshats, and other assorted whack-jobs and nut-cases, do not have Article III Standing" (as VIRick put it) was actually quite clear long before Hollingsworth. The more precise issue in Hollingsworth was whether the *official sponsors* of a state constitutional amendment approved by initiative had standing to defend such a provision against federal constitutional attack when the elected state officials ordinarily charged with the defending the constitutionality of state law decline to enter a defense.

    The official sponsors are in a different position than third-party organizations like NOM and the like, as they have an officially recognized role in state government, at least in California. They are charged with drafting official statements in support of the initiative proposal, statements distributed to all California voters.

    The 9th Circuit certified to the California Supreme Court the question of whether under California law the official sponsors of an initiative may officially represent the state when the executive refuses to do so. The California Supreme Court held unanimously that it did. Thus the official sponsors have undoubted standing under California law to defend the constitutionality of the affected measure.

    As many noted at the time, the 9th Circuit assumed that this answer conferred Article III standing on the official sponsors, but they were incorrect to do so, as the question of Article III standing is a federal question. Nevertheless, a good argument can be made (and Justice Kennedy made it in his Hollingsworth dissent) that in this special circumstance federal standing is appropriate. (The question of how such standing would be triggered, and its extent, present difficult questions in and of themselves.)

    [Similar, but not identical, issues were involved in the Windsor case, in which the four member minority wanted to dismiss that case as well.]

    Interestingly, the Hollingsworth opinion is an example of precisely the sort of doctrine that Justice Ginsburg generally does not favor. She has made something of a thing of trying to cut down on the number of doctrines which treat jurisdictional issues as matters of yes-or-no/up-or-down Article III doctrine. The ruling in Hollingsworth is one that I would have predicted she would dissent from.

    Given the strong signals that the Court has been sending recently, I strongly suspect that Justice Kennedy was completely prepared to get to the merits in Hollingsworth, and that he would have ruled same-sex marriage bans unconstitutional. I accordingly also strongly suspect that Justice Ginsburg, fearing a Roe v. Wade style backlash, wanted to punt the substance for a couple of years, and thus signed on to an unfortunate precedent.

    Another factor in this is probably the fact that Justice Kennedy is a Californian, whereas everyone else on the Court hails from east of the Mississippi. As Justice Kennedy noted, California's initiative and referendum practice was consciously designed to allow the people to overrule their elected officials. To declare that only those elected officials have standing to defend the results of initiatives or referenda overruling them creates a somewhat easy way for the elected officials to nullify the results of popular referenda.

    For many of us, particularly those of us who live in the eastern part of the country (and I'm guessing some of the Justices), the California system seems absolutely crazy — so I'm not entirely sure that I can't live with a decision which eviscerates some of its effects. But it also seems to me that if California wants to create a stupid initiative system, it ought to be allowed to do so, so long as it doesn't violate the federal constitution.

    That being said, the use of Hollingsworth in deciding standing cases for the likes of NOM is as an argument a fortiori: the court says, if the official sponsors of a referendum don't have standing, why do you think you bozos do?

  • 75. JayJonson  |  March 2, 2015 at 3:18 pm

    Kennedy did not join the Boy Scouts case because he framed it as an association issue. He may have known that giving the Boy Scouts license to discriminate would be the worst thing that could happen to them. It wound up ruining their brand. The Boy Scouts used to be a universally admired organization; following Dale it no longer was. It has been hemorrhaging membership for 30 years.

    Kennedy does not like "classifications." I doubt that he will talk about what level of scrutiny should be used in regard to claims of sexual orientation discrimination. He does believe in equal protection under the law. That has served us well in his jurisprudence, and I think it will continue to do so.

    I wonder if Justices Ginsburg, Sotomayor, and Kagan will follow Judges Berzon and Bataillon on the issue of intermediate scrutiny because of gender or gender-stereotyping? That may be a very effective way to achieve heightened scrutiny for sexual orientation discrimination.

    I also wonder if Judge Bataillon was forced to use the gender and gender-stereotyping discrimination because the Eighth Circuit does not accord sexual orientation heightened scrutiny.

  • 76. VIRick  |  March 2, 2015 at 3:19 pm

    "…. the court says, if the official sponsors of a referendum don't have standing, why do you think you bozos do?"

    Steve, thank you. That's a perfect summation!

    And especially so, in terms of the precedent, as derived from "Hollingsworth," and applied in more-recent cases.

  • 77. JayJonson  |  March 2, 2015 at 3:20 pm

    He HAS gotten a majority to agree with him re animus. Romer, Lawrence, and Windsor all depend on animus analysis.

    EDIT: I think I may have misinterpreted your first comment. I agree that Kennedy does not like adding additional groups to heightened scrutiny and would like to abandon the entire framework. For him, equal protection itself requires rational scrutiny with a bite, especially when animus is involved.

  • 78. brandall  |  March 2, 2015 at 3:20 pm

    In the 4th, 9th and 11th, the Appeals Court denied their stay requests which SCOTUS also denied in the post October 6th date you mentioned. If the 8th grants the stay pending SCOTUS (and I am leaning in this direction on what they will do) we will appeal to SCOTUS. SCOTUS would have to follow their recent history and deny the stay.

    If the 8th denies the stay, the State will appeal to SCOTUS. SCOTUS will deny.

    Either way, the Nebraska marriage ban will be unenforceable no later than Friday the 13th. We are very fortunate Judge Bataillon also saw it this way and only provided a 7-day stay.

  • 79. SteveThomas1  |  March 2, 2015 at 3:27 pm

    Remember that in both Hollingsworth and Windsor the Court specifically included standing as a question to be addressed in their grants of cert. Thus, everyone was thinking about standing.

    And yes, Justice Kennedy not only voted with the minority, he wrote the dissenting opinion explaining why, in this particular case, standing was present.

    Questions asked during oral arguments don't always signal the final thinking of a Justice. Sometimes they're just questions.

  • 80. Raga  |  March 2, 2015 at 3:57 pm

    No, my "they" refers to the Supreme Court. The issue was whether they'd rule from the bench next month.

  • 81. Raga  |  March 2, 2015 at 3:59 pm

    They can do what they want, obviously, but there is no logical reason for them to resolve one stay issue and not another within their circuit, when the underlying context is essentially the same. They have to be consistent.

  • 82. Raga  |  March 2, 2015 at 4:08 pm

    I agree with others who think that it's unlikely Kennedy will address the classification issue in the upcoming ruling. In every positive gay-rights-case-majority he has been in, as the senior-most Justice, he has chosen to assign the writing of the opinion to himself. He likes slow progress and as far as gay rights are concerned, he has taken the reins to keep the pace slow. His quintessential fifth vote in all these cases came at that cost. I'm sure if it was up to any of the other four, sexual orientation will definitely get heightened scrutiny in the upcoming ruling. That's why I'm hoping and praying for a strong concurring opinion by Ginsburg pushing for heightened scrutiny. Who knows – Kennedy might just decide its gender based discrimination and not write anything about sexual orientation at all.

  • 83. RnL2008  |  March 2, 2015 at 4:13 pm

    This DIDN'T work for NOM and I'm glad it DIDN'T work for the idiots at!!!

  • 84. Eric  |  March 2, 2015 at 4:20 pm

    Remember how the anti-gay bragged and bragged that the initiative was only fourteen words?

    If the People had intended the proponents of Prop 8 to have standing, they would have included that language in the initiative.

    It was Pugno's competence as a lawyer that limited the initiative to fourteen words.

  • 85. sfbob  |  March 2, 2015 at 4:20 pm

    It's too bad that Kennedy is likely to write the opinion. Far better to have Ginsburg write it instead. She authored Christian Legal Society vs Martinez in 2010 and in doing so made the very important statement that the court "declined to distinguish between status and conduct." That statement by its very nature would provide all the ammunition necessary to find sexual orientation to be a suspect class.

    I sometimes wonder whether states use of the argument that our cases are about the "right to same-sex marriage" because they fundamentally believe that two heterosexual men or two heterosexual might be inclined to get married for some unspecified yet somehow nefarious purpose. That only make sense if one assumes that homosexuality consists of some grouping of discrete behaviors unattached to some underlying inclination. Otherwise of course a ban on marriage equality using the "equal application" argument is no more than thinly disguised discrimination based on sexual orientation. Which of course we know to be precisely what it is.

    I am inclined to agree with you Raga that Kennedy will once again refuse to make that final leap. But I'm not going to give up hope entirely until the opinion gets written and published.

  • 86. Decided_Voter  |  March 2, 2015 at 4:26 pm

    I think he did at least question if it could be considered discrimination based on sex/gender during either the Prop 8 or Windsor hearings. It will be interesting to see where his thinking might be on that now on this arguably "ultimate" issue of marriage across the land and considering what's changed in society and the courts since 2013.

  • 87. sfbob  |  March 2, 2015 at 4:28 pm

    I remember thinking that even at the outset Mike. It seemed pretty obvious to me that "Protect Marriage" had no Article III standing but because the CA Supreme Court ruled that ballot measure proponents did have state-level standing, SCOTUS was obliged to rule on that particular question.

  • 88. sfbob  |  March 2, 2015 at 4:29 pm

    Thanks! Excellent points.

  • 89. VIRick  |  March 2, 2015 at 4:40 pm

    "…. but you didn't give me a wiggle …."

    But Rose, that's Wolfie's job! I don't want to muscle in on his territory, as he's got a patent pending on that special "wiggle" maneuver of his!

  • 90. RnL2008  |  March 2, 2015 at 4:44 pm

    Damn, where's my WIGGLE Boy? Come on Wolf……I need a WIGGLE or two…….lol!!!

  • 91. jdw_karasu  |  March 2, 2015 at 4:51 pm

    Got it.

  • 92. SteveThomas1  |  March 2, 2015 at 4:53 pm

    Sorry, Eric, but I don't understand your point. Neither clever drafting, nor inept drafting, nor something in between can confer standing on the official sponsors of an initiative when state officials refuse to defend it. That standing can be conferred, for purposes of California law, by the California's governance structure — and the California Supreme Court held that the entire institution of voter initiatives does so. Further, the California Supreme Court, not a bastion of right-wingers, held so unanimously.

    Hollingsworth stands for the proposition that this is not enough for Article III purposes.

    None of this has anything to do with how the initiative proposal was drafted.

  • 93. Dr. Z  |  March 2, 2015 at 4:59 pm

    Well, and I think the problem with throwing out the levels of scrutiny framework framework relying solely on animus is being demonstrated with LGBT civil rights. In the absence of a heightened scrutiny determination we are being forced to litigate EVERYTHING. It places an unfair burden on historically disadvantaged minorities to have to retry every case as if it was all tabula rasa and we cannot take historic facts and patterns into account. The animus-based approach Kennedy prefers is really myopic, and ripe for obstructionist tactics like we're seeing in Alabama and Kansas, etc.

    It is also needlessly expensive and ties up the courts. The taxpayers end up footing the bill.

  • 94. jm64tx  |  March 2, 2015 at 5:29 pm

    Standing is NOT independent of subject matter jurisdiction.

    If you dont have standing there is no injury. no injury = no controversy = no article 3 jurisdiction.

  • 95. Raga  |  March 2, 2015 at 6:00 pm

    He didn't vote with the majority because he would have likely upheld the Ninth Circuit, which is the same effect if cert had been denied.

  • 96. Christian0811  |  March 2, 2015 at 6:08 pm

    Has nothing to do with Christianity, Eric.

    John 9:1-3
    "As he passed by, he saw a man blind from birth. And his disciples asked him, “Rabbi, who sinned, this man or his parents, that he was born blind?” Jesus answered, “It was not that this man sinned, or his parents, but that the works of God might be displayed in him."

    It's a Jewish, specifically Old Testament belief system that stems from the philosophy regarding the permanence of sin. Actually it bears a similar tone to the concept of karma.

    Moving on, it's very very satisfying that Judge Bataillion should get another shot at striking down the Nebraska amendment. Poetic as it were. Admittedly, the plaintiffs grounds in Bruning were very weak imho.

  • 97. SteveThomas1  |  March 2, 2015 at 6:42 pm

    Actually, I think he would not have used the rationale that the 9th Circuit used. The 9th Circuit essentially said that it didn't need to decide on the constitutional issues we've been debating all this time (fundamental rights, substantive due process, equal protection) because a state can't constitutionally withdraw benefits once it has extended them. It's difficult to see how to limit such a rule. (For example, if a state decided to give every citizen a right by law to receive a complete, printed copy of the full state budget by mail, could it rescind that right by law when it was determined that it was simply too expensive?)

    Denial of cert. would have made this sort of constitutional rule the law in the 9th Circuit, and I doubt the liberals on the court would have been happy with that. Instead, the Court vacated the 9th Circuit decision, rendering it non-precedential, while keeping the District Court judgment, which struck down Prop. 8.

    When it was issued, the 9th Circuit's rationale in the Hollingsworth case was considered quite odd, because it was careful to apply only to California with this odd holding. Many commentators speculated that the 9th Circuit was trying to give SCOTUS a way to get a marriage equality "win" without a sweeping holding, speculating further that the decision was written almost solely to appeal to Justice Kennedy.

  • 98. brandall  |  March 2, 2015 at 6:56 pm

    I have been with my dearest Michael for 22 years now. He stopped "wondering about me" 21 years ago. Acceptance (and patience) is his greatest virtue. Thank you for the nice comment.

  • 99. Raga  |  March 2, 2015 at 7:05 pm

    Well it worked insofar as Kennedy seemed content to let the Ninth Circuit ruling stand (denying cert).

  • 100. SteveThomas1  |  March 2, 2015 at 7:18 pm

    Huh? The Court didn't deny cert. in Hollingsworth — it granted it. And it then vacated the 9th Circuit's judgment. Vacating a ruling is the opposite of letting it stand.

  • 101. Eric  |  March 2, 2015 at 7:24 pm

    The state constitution was being amended, nothing prevented the proponents from explicitly granting standing to the proponents. The AG isn't a magical position, the power of the office is a product of the state constitution. That power can be shared with anyone the constitution specifies.

  • 102. Eric  |  March 2, 2015 at 7:29 pm

    These anti-gay laws have everything to do with Christians. The Jews don't have the political numbers to make the laws in this country, so don't blame them.

  • 103. SteveThomas1  |  March 2, 2015 at 7:45 pm

    Actually, no. The question of who has Article III standing is a federal question, and states are not empowered to simply "grant standing" (whatever the hell that might mean) to whomever they want. Article III standing is, further, a judge-made set of doctrines with constitutional underpinnings, so not even Congress has the power to "explicitly grant" Article III standing. (Congress does have power to confer, and probably withhold, jurisdiction on the federal courts, subject to constitutional limits which are not at all clear — but those jurisdictional statutes do not implicate Article III standing.)

    The unanimous opinion of the California Supreme Court is that the official proponents of an initiative are empowered to represent the state in defending the constitutionality of the related initiative whenever elected officials refuse to do so. The proponents didn't need an "explicit grant" to accomplish this under California state law: according to the California Supreme Court that was already the law. Some sort of weird express grant would not have affected the California state law analysis; it would have had pretty much the same effect as adding the words "and we really mean it!" to the end of the operative provisions.

  • 104. VIRick  |  March 2, 2015 at 8:08 pm

    "Has nothing to do with Christianity"

    Sorry, but it has everything to do with the very dogmatic evangelical fundies, and their insistance that everyone else adhere to THEIR belief system (whatever that might be), and that, somehow, in addition, that warped belief system gives them some sort of exemption to discriminate against whoever they deem needs to be discriminated against.

  • 105. VIRick  |  March 2, 2015 at 8:24 pm

    You're entirely welcome.

    "…. with my dearest Michael …."

    Oh, and by the way, is that the same Michael who you were claiming that I was dating about 25 years ago or so when we were both students at ASU?

    I'm still trying my best to recover from that amazing "reveal." LOL

  • 106. Raga  |  March 2, 2015 at 8:37 pm

    I didn't mean to say it did. I said based on Kennedy's comment during oral argument, he clearly didn't vote to grant cert and would have been content to let the Ninth Circuit ruling stand (and hence the strategy seemed to work as far as Kennedy was concerned). Apologies for the bad grammar.

  • 107. sfbob  |  March 2, 2015 at 8:42 pm

    It's likely that the Ninth Circuit's ruling would have been upheld.

    Your example is probably not a good one since I doubt too many people would consider the right to receive a printed copy of the state budget by mail any sort of fundamental right and it is the sort of thing where the state's argument about it being too expensive a practice to continue (particularly if anyone could get a copy by mail if they asked for one or could download it from the state's website) would probably be a sufficient ground to uphold withdrawing the right. The right to marry being a fundamental right, it would be far tougher to find an adequate justification for withdrawing such a right once it's been granted.

    There are certainly ways to parse the issue based on what right is at stake; I don't think it really presents that much of a "slippery slope" challenge at all. Just as rational basis is not such an easy standard that any law can meet it, strict scrutiny may not necessarily be an impossible standard to meet.

  • 108. SteveThomas1  |  March 2, 2015 at 9:08 pm

    I haven't listened to the oral argument since it was released (2 years ago), and haven't tried to look it up. I don't recall at the time thinking that his comment made it clear that he voted against granting cert. Indeed, it seemed to me to be consistent with his voting either way.

    You are, of course, correct that if the Court had denied cert. the 9th Circuit's odd ruling would be good law today.

  • 109. SteveThomas1  |  March 2, 2015 at 9:25 pm

    Sorry, but you don't seem to be getting the 9th Circuit's argument. They expressly didn't decide whether same-sex marriage implicated a fundamental right, because they held that their "can't take it away once granted" rationale would control *even if* there was no fundamental right implicated (or heightened scrutiny triggered).

    My example was chosen precisely because only a lunatic would regard delivery of a print copy of the state's complete budget by mail as anything like a fundamental right. Thus, the 9th Circuit's declaration that it doesn't matter if you're dealing with a fundamental right or not is wrong. This is a reductio ad absurdum argument.

    Certainly, the intuitive appeal of the "once granted, same-sex marriage can't be taken away" argument comes from the tacit understanding that it's a fundamental right. A more or less precisely analogous issue would be women's suffrage. Until it was "granted", no women in this country could vote, and a number of men argued it was against nature. But it was granted, in part, because people came to realize that it is a fundamental right. A proposal to "un-grant" women's suffrage would now be unthinkable. But that's not because one didn't have to grant it in the first place, but because it was always unjust *not* to grant it.

    But if you take the 9th Circuit's holding on its own express terms, their rationale would apply even if marriage equality didn't implicate a fundamental right or trigger heightened scrutiny. Thus, my print budget by mail example.

    Thus, if a suppressed premise of the argument is that marriage equality *does* implicate a fundamental right or triggers heightened scrutiny, the actual "can't take it away" move becomes mere surplusage, since granting the premise ends the case.

    The reason for the tortured logic was, apparently, that the 9th Circuit wanted to find a way to limit their holding to California and leave Nevada, and Idaho, for example, to continue their bans. But the suppressed premise, if that was truly required for the argument, would have required the end of same-sex marriage bans throughout the 9th Circuit.

  • 110. Raga  |  March 2, 2015 at 9:53 pm

    I believe his exact words were "I just wonder if — if the case was properly granted," which many took to mean that Kennedy didn't like that the case was granted cert.

  • 111. VIRick  |  March 2, 2015 at 10:32 pm

    Bob, excellent point. Now that you've coherently stated the "obvious," I finally see that that was precisely the issue.

  • 112. SteveThomas1  |  March 2, 2015 at 10:55 pm

    Or, it could have meant that he was wondering whether he had been right to vote to grant cert. in the first place. I think his comment is ambiguous, and doesn't provide enough of a basis to determine whether he is regretting his vote or wishing the vote had gone his way.

    Thanks for looking up the exact words.

  • 113. Raga  |  March 2, 2015 at 11:00 pm

    Sure – I was simply pointing out how I think a lot of press/legal scholars interpreted it at that time in that context (which I agree with as being more likely than Kennedy second-guessing his own vote out loud in the courtroom).

  • 114. SteveThomas1  |  March 2, 2015 at 11:02 pm

    The US Supreme Court did not rule on the question of whether or not the official proponents had standing (or perhaps better authorization) under California law. The California Supreme Court, which is the highest authority for construing the law of California, had already done that. The US Supreme Court is supposed to defer to the highest court of a state when that court construes state law. They did that in Hollingsworth, and did not rule in any manner on the question of whether the proponents were authorized to defend their initiative in state courts (which is what "state-level standing" would mean).

    The US Supreme Court decided the *federal* law question of whether the proponents had Article III standing, a question which was, by the way, very far from obvious.

  • 115. VIRick  |  March 2, 2015 at 11:40 pm

    Steve, I know absolutely nothing about the specifics of California law, so my mind is totally uncluttered.

    What Bob so coherently stated, and which I finally absorbed, is now quite clear to me from the federal standpoint. Period.

  • 116. ebohlman  |  March 3, 2015 at 2:17 am

    My recollection is that the issue the 9th decided was not whether a right could be taken away once granted; there's already precedent that it can, though the rights in question involved financial benefits and weren't considered civil rights. Rather it was whether a right previously granted could be taken away from one group while leaving it in place for others.

  • 117. ebohlman  |  March 3, 2015 at 2:27 am

    Christian0811 was clarifying that the idea of sin being handed down over generations predated Christianity and thus isn't specifically a "Christian" idea (and was in fact rejected by some influential early Christians). He was not asserting that there are no contemporary Christians who subscribe to the notion, or that Christians don't represent a majority of people who currently subscribe to it.

  • 118. SteveThomas1  |  March 3, 2015 at 6:25 am

    I think that's a distinction without a difference. The basic principle should be that if one can grant or withhold a right, whether a civil right or an entitlement or whatever, subject only to rational basis review, the granting of such a right or benefit does not render it unconstitutional to subsequently take it away.

    Take as an example, the expansion of Medicaid under the ACA. Medicaid is a means-tested entitlement program, subject only to rational basis review. (It does make a distinction on the basis of income, so does not treat all citizens equally, but passes rational review pretty easily.) I doubt that there'd be a serious constitutional issue if Congress succeeded in scaling back that expansion, either to remove the entitlements from everyone who received them under the expansion or merely a subset of them, so long as there was a rational basis for doing so. (That is, one could remove the entitlements for an income-defined segment, but not for red-haired people.)

    The whole point of the 9th Circuit's argument was that even if the withholding of a right or benefit was constitutionally allowed, granting and then withdrawing that right or benefit became unconstitutional, no matter what the right or benefit was, so long as it passed rational basis review. Thus, the argument is that, *assuming* the state can permissibly withhold marriage equality, it can't grant it and then take it back. This creates a ratchet theory of constitutional rights.

    The distinction between financial benefits and "civil rights" only makes a difference so long as that implies a corresponding difference in the level of review. But if there's a difference in the level of review, an argument which assumes there's not is invalid.

    In fact, I submit, the 9th Circuit's argument appeals to an intuition that marriage equality is somehow different from other examples such as those I've posited — but I believe that intuited difference relies upon an unexpressed premise in flat contradiction to the express assumption accepted as a premise in the actual argument. To be clear, I do think that marriage equality is different from the right to receive Medicaid or print copies of state budgets: it differs in that the denial of marriage equality is constitutionally impermissible.

    The correct result would have been the 9th Circuit's more recent ruling, which simply made the withholding of marriage equality unconstitutional tout court.

  • 119. JayJonson  |  March 3, 2015 at 6:37 am

    I agree with you that it would help if SCOTUS unambiguously declared that sexual orientation discrimination should be subject to heightened scrutiny. But I don't see how that would lessen the need to litigate.

    After all, heightened scrutiny takes place in the context of litigation. It doesn't forbid the legislatures from passing laws, it just subjects the laws to searching examination, which takes place in courtrooms, with taxpayers footing the bills if the state loses.

    The yahoos who pass laws that discriminate against us are not going to stop passing such laws just because SCOTUS says such discrimination is subject to heightened scrutiny. They will ignore that edict the same way they have repeatedly ignored the animus test applied in Romer, Lawrence, and Windsor.

    The problem lies not with the Court's doctrine but with the politicians' contempt for the Court and the Constitution and for glbtq citizens.

  • 120. JayJonson  |  March 3, 2015 at 6:59 am

    Thank you, Steve, for this excellent summation of the standing issue in Hollingsworth. I also agree with your speculation that "Given the strong signals that the Court has been sending recently, I strongly suspect that Justice Kennedy was completely prepared to get to the merits in Hollingsworth, and that he would have ruled same-sex marriage bans unconstitutional. I accordingly also strongly suspect that Justice Ginsburg, fearing a Roe v. Wade style backlash, wanted to punt the substance for a couple of years, and thus signed on to an unfortunate precedent."

    We haven't thought much about the other standing issue at the Court that term, the Windsor issue. I really think BLAG lacked standing. After all, even if Congress had standing to defend a law they passed when the Executive branch declines to defend it, then shouldn't both Houses of Congress have to agree to the defense?

    As I recall, the Harvard professor appointed to brief the Court on the standing issue in Windsor argued strongly that standing issues precluded the Court from hearing Windsor, but I forget the basis of her argument.

    Given the outcome, I am delighted that SCOTUS chose to rule on the merits of Windsor, but I do acknowledge that there may have been standing problems. I think that in some of the lower courts, our side argued that BLAG lacked standing.

    Of course, the Chief Justice was more concerned about whether the Department of Justice had standing since they were in effect appealing a decision in which they had triumphed.

  • 121. SteveThomas1  |  March 3, 2015 at 7:23 am

    There were certainly standing issues in Windsor. But the Supreme Court generally ignores standing difficulties if it wants to get to the merits. The most egregious instance of that was the Nixon tapes case (United States v. Nixon, 418 U.S. 683 (1974)), which essentially ended the Nixon presidency. The caption of that case tells you everything that is wrong with it: "United States" as a party is the executive branch, constitutionally regarded as an agent of the President. "Nixon" was the President. Thus, "United States v. Nixon" was an instance of the President of the United States suing himself, at least from the standpoint of constitutional theory. (In fact, the plaintiff was the special prosecutor, who was operating independently of the President, albeit on an ad hoc basis.) The Supreme Court dealt with this difficulty by simply ignoring it.

    In Windsor, Justice Kennedy performed a slick trick: he held that the DoJ was still a party in opposition to the plaintiff, since even though it asked to be ordered to give Edie Windsor her refund, it said it wouldn't without a court order. (Justice Kennedy ignored the fact that if they dismissed for lack of standing, the district court decision would give Ms. Windsor her refund anyway.) And he also noted that there was no harm to having a arguably collusive plaintiff and defendant, since the BLAG, as an intervenor, was there to give a spirited defense of DOMA.

    Of course, that last point is not really relevant to a standing inquiry at all, since the world abounds in people eager to give spirited advocacy. Indeed, although I don't think any argument could have prevailed for the state in Lawrence v. Texas, the advocate for Texas in the oral arguments was so clearly overmatched that I felt just a little sorry for him, for all that he was arguing for the devil.

  • 122. SteveThomas1  |  March 3, 2015 at 7:31 am

    Relying on memory, I overstated the extent to which the Supreme Court ignored the justiciability issue in the tapes case. Chief Justice Burger in his opinion does discuss it, albeit not terribly cogently. But skimming the opinion, it becomes apparent that there was a real conflict in the case. A truer caption might have been "Judicial Branch v. Executive Branch" as the real import of the case is "the President doesn't get to decide what's privileged and what's not, the courts do."

  • 123. Dr. Z  |  March 3, 2015 at 7:46 am

    Agreed that there will be need for litigation in both cases, but with heightened scrutiny on our side there is a big difference in the burden of proof. Heightened scrutiny takes account of the historical pattern of discrimination, making it difficult for the state to prove that the law serves a necessary purpose and is not overbroad in its reach. An analysis based on legislative animus, otoh, considers each piece of legislation on a case by case basis and requires us to prove, over and over, that there was a bare intent to harm us. That places the burden of proof on us and prolongsthe litigation – instead of being quickly stopped at the district court level as would happen with heightened scrutiny, animus is lkely to require a SCOTUS determination every time, and we can never be certain that they will see it our way.

  • 124. Christian0811  |  March 3, 2015 at 4:35 pm

    Your analysis is as lazy as it is wrong. It's equivalent to blaming atheists for the tyranny of the USSR, an avowedly and explicitly atheistic state.

    Let's not forget that it was the USSR, under Stalin, that recriminalised homosexuality and kept that ban until 1991.

    There may be pseudo-Christians who use the pretext of faith to attack the LGBT community, but the same can and has been done by non-religious people. At least with Christianity, there's historical and exegetical evidence to the contrary of the beliefs of the bigots.

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