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Nebraska same-sex marriages put on hold, oral arguments set in Eighth Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Eighth Circuit Court of Appeals has placed same-sex marriages in Nebraska on hold pending the appeal in the case. The ban was struck down last week.

The order notes that the Nebraska case will be put on the same briefing and argument schedule as cases from South Dakota, Missouri, and Arkansas.

The opening brief will be due March 30.

Arguments have been set for May 12.

Thanks to Equality Case Files for these filings

75 Comments

  • 1. guitaristbl  |  March 5, 2015 at 3:57 pm

    Stay expected. Expedited briefing schedule to hear it along the cases from South Dakota, Arkansas and Missouri also expected.

    They just want to rule against ME, it's obvious to me. We have to get a panel with a judge who would support ME and who would drag things out. I simply don't want a 2nd ruling on the appeals court level that would uphold the bans, no matter what influence that might have (if any) to the decision from SCOTUS.

    P.S. Just for the story the panel that approved the stay : Wollman (Reagan appointee), Smith (G.W. Bush appointee and he was in the panel that heard the case from Nebraska in 2006), Benton (G.W. Bush appointee).

    Also from wikipedia on Smith :

    "A recent empirical study of the decisionmaking of federal circuit court judges identified Smith's jurisprudence as non-ideological and moderate."

    If that's an example of a non-ideological and moderate judge on the 8th, we are screwed.

  • 2. Decided_Voter  |  March 5, 2015 at 4:18 pm

    And yet there could be a 5th pro-marriage equality decision from the 5th coming out before then. That would mean more than a 2nd anti-equality one – especially since they're usually very weak. Perspective.

    Thanks for the info on the panel.

  • 3. DrBriCA  |  March 5, 2015 at 4:22 pm

    Well, at least they waited for the ACLU to respond first. I'm sure they've been ready to issue the stay for several days now. (Missouri is probably next again.)

    Any speculation on attempting to appeal the stay to SCOTUS? Would it still be available for emergency status or would it go through more standard channels to brief for a request to lift such stays?

  • 4. guitaristbl  |  March 5, 2015 at 4:22 pm

    It would but subject to immediate en banc hearing (even if they do not have the time for that). An anti-equality opinion in the 8th would stand on pretty sturdy grounds on the other hand I think. Anyway, I just hope they won't rule in time before SCOTUS rules.

  • 5. Decided_Voter  |  March 5, 2015 at 4:23 pm

    They will likely deny lifting the Lawson MO stay.

    Looking forward to seeing if the ACLU appeals the stay granting to SCOTUS. I think they were claiming harm to some of the couples so let's go for it.

  • 6. DrBriCA  |  March 5, 2015 at 4:24 pm

    The Missouri one really would be the easiest for SCOTUS to tackle, since the state has no comment on the stay itself. The 8th circuit has been more invested in keeping the stay than the AG or governor.

  • 7. Decided_Voter  |  March 5, 2015 at 4:32 pm

    How would a ruling in the 5th be subject to an "immediate en banc hearing"? As in before SCOTUS rules? Zach12 has been saying he thought there wouldn't be enough time if the decision came down in late March-early April (he can correct me if I misquoted him).

    Also, how would an anti-equality opinion in the 8th stand on "pretty sturdy grounds"? Are you referring to it being upheld en banc even though there wouldn't be time before SCOTUS rules? Or that it would be written better than any of the other anti-equality decisions?

    Also, as some other commenters here have been predicting, I too think the 8th will surely try to issue their ruling before SCOTUS rules. Their tea leaves are pretty easy to read.

  • 8. Decided_Voter  |  March 5, 2015 at 4:35 pm

    Yes, what is the answer to your second question? Enquiring minds want to know and are hoping someone here can answer.

  • 9. guitaristbl  |  March 5, 2015 at 4:37 pm

    I do not think they would have enough time to rule on an en banc panel but they would have enough time to grant the en banc hearing, which vacates the 3-panel decision anyway.

    As for the 8th, I am referring to the certainty the bans would be upheld from an en banc panel (if the request was granted in first place which I doubt it). I would not expect from a court that I have read that it does not have very qualified judges to deliver a "good" anti-equality opinion. Such are hard to write anyway given the facts available. Sutton is considered a "good" judge in some circles and he delivered an opinion all the pointed criticism of which can be found in its dissent.

    Yes the 8th will try to rule before SCOTUS for whatever reason they believe they should do that. That's why I am hoping for a pro-equality judge on the panel to slow things down with a dissent.

  • 10. DrBriCA  |  March 5, 2015 at 4:38 pm

    Even if an en banc is requested immediately, it shouldn't have much effect at this point. They wouldn't have time for briefing and a hearing before the SCOTUS decision in order to overturn a favorable panel decision. So the panel decision would still be the main ruling from the 5th while SCOTUS is in action.

    I believe others have noted that in the chance the 5th circuit panel does not issue a stay, the circuit can't issue its own stay en banc. Or could the states actually ask for an emergency stay via en banc instead of the usual appeal to SCOTUS?

  • 11. DrBriCA  |  March 5, 2015 at 4:40 pm

    Does the mere act of granting an en banc already vacate the original circuit ruling, even before the re-hearing takes place?

  • 12. guitaristbl  |  March 5, 2015 at 4:46 pm

    As far as I am aware it does.

  • 13. jpmassar  |  March 5, 2015 at 4:51 pm

    In Arizona


    On Feb. 17, Brearcliffe ruled that Tucsonan Martha A. Morris, 67, and her estranged wife, Vicki M. Sullivan, 64, now of Maine, could not be divorced.
    Brearcliffe’s fundamental reason for denying the divorce: Neither a federal trial court nor the 9th U.S. Circuit Court of Appeals sets precedents he must follow.

    ”The general rule,” Brearcliffe wrote, “is that the Supremacy Clause of the United States Constitution (U.S. Const. art. VI, cl. 2) does not require state courts to follow precedent from either federal trial courts or Circuit Courts of Appeal interpreting the United States Constitution.”

    He not only denied the petition for divorce, but he said it would be dismissed “with prejudice” — meaning without opportunity for re-filing or reconsideration — unless Morris either agreed instead to do an annulment or request a stay. She got a Southern Arizona Legal Aid attorney, Anthony Wisz, to represent her and is planning to appeal Brearcliffe's decision.

    http://www.dailykos.com/story/2015/03/05/1368796/

  • 14. flyerguy77  |  March 5, 2015 at 4:53 pm

    no it does not………

  • 15. guitaristbl  |  March 5, 2015 at 4:54 pm

    This has nothing to do with him following a federal courts decision. He should read judge Hinkle's clarification on that matter. It's the state law and constitution as it stands (with a debunked amendment and state law) that forces him to grant the divorce, not the decision of the federal court.

  • 16. flyerguy77  |  March 5, 2015 at 5:00 pm

    Will Plaintiffs go to SCOTUS to ask them to lift the stay?

  • 17. RobW303  |  March 5, 2015 at 5:05 pm

    I find it very interesting they found time to rule so quickly on granting the Nebraska stay while they haven't yet responded to lifting the Missouri stay. How can they even pretend to be impartial?

  • 18. flyerguy77  |  March 5, 2015 at 5:05 pm

    3 judge panel/ SCOTUS ONLY can grant/deny stays.. not En banc..

  • 19. ianbirmingham  |  March 5, 2015 at 5:18 pm

    "Granting of rehearing or rehearing en banc vacates the previous panel judgment and opinion; the rehearing is a review of the judgment or decision from which review is sought and not a review of the judgment of the panel." – http://www.ca4.uscourts.gov/AppellateProcedureGui

    "Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate." – http://www.ca5.uscourts.gov/clerk/docs/5thcir-iop

  • 20. VIRick  |  March 5, 2015 at 5:34 pm

    "The ban was struck down last week."

    Scottie, the Nebraska ban was struck down on Monday morning, 2 March 2015, THIS week, only 3 1/2 days ago.

  • 21. flyerguy77  |  March 5, 2015 at 5:35 pm

    LOOK, we will cross that line when 5th COA releases their decision.. in March/ April—— There won't be enough time for the state/ judge vote for an en banc. and hear the case… Most likely there no en banc hearing…… Also 8th COA will wake up after SCOTUS oral arguments…… I believe if it sounds like SCOTUS, April 28th, will rule in our favor during the oral arguments 8th COA panel might postoned or go in lightly during their oral arguments in May

  • 22. Mike_Baltimore  |  March 5, 2015 at 5:37 pm

    The rules of the Fourth Circuit may or may not have any effect on the Fifth Circuit, or any other Circuit for that matter.

    And what are the exceptions that are expressly provided in the Fifth Circuit's rules?

  • 23. ianbirmingham  |  March 5, 2015 at 5:56 pm

    The rules don't expressly provide exceptions. Any express provision of exception would be done in the order granting the en banc hearing. If the order didn't specifically say that it wasn't vacating the panel ruling, then the panel ruling is toast. In other words, vacating the panel ruling is standard procedure whenever an en banc hearing is granted, and only in rare circumstances might there be an exception.

    I provided both 4th and 5th circuit rules. It's the same rule across all the circuits; the 4th and 5th circuit rules were simply easier to find online.

  • 24. DrBriCA  |  March 5, 2015 at 6:18 pm

    Agreed. Especially when the request to lift Missouri's hold hasn't even been contested by the state officials. It should be a slam dunk. (Although they probably preferred creating the precedent for keeping the holds, as seen by its effects on SD and AR, which is why they've held out on any new statement about Missouri.)

  • 25. DrBriCA  |  March 5, 2015 at 6:21 pm

    Fingers crossed! Why not go for it? We're nearing the endgame, so either SCOTUS lets another state have ME (which makes it easier for them to rule in June on the remaining few holdouts) or they keep the stay and it likely ends this summer anyway.

  • 26. Sagesse  |  March 5, 2015 at 6:26 pm

    I can see how the 5th decision could be subject to an immediate REQUEST for an en banc hearing… but the entire court then has to vote and a majority has to agree. That is a behind closed doors process, and it doesn't have to be expedited. The 5th circuit decision would be vacated only if and when en banc is GRANTED.

    A strong, well written decision from the 5th circuit would reinforce the other four. Even if en banc is subsequently granted, it will not be heard or decided before SCOTUS rules in June. The words in the 5th circuit decision will be the final words out of the 5th circuit, vacated or not.

    As for the 8th, oral arguments are set for May 12, two weeks after oral arguments at SCOTUS. What could they possibly say that hasn't already been said on either side that would change any Justice's mind? It is very unlikely the 8th circuit appeal would be decided before SCOTUS rules, or to have a huge effect on the Justices thought process.

    Just my opinion.

  • 27. ianbirmingham  |  March 5, 2015 at 6:27 pm

    Hinkle said that the US Constitution requires it – in other words, that denying this right to same-sex applicants is unconstitutional. But in the judicial system of the US, there are really 51 parallel subsystems, the federal court system and the state court systems. All of them are under the general supervision of the US Supreme Court. However, each subsystem can interpret the Constitution differently. For that matter, different Circuits of the federal court system can (and often do) interpret the Constitution differently. The US Supreme Court has the job of resolving any differences that arise concerning federal law, whether they are differences between state and federal courts, between different federal circuits, between different state supreme courts, or any combination of these.

  • 28. Sagesse  |  March 5, 2015 at 6:31 pm

    Staying the Nebraska decision makes sense, since the other three cases in the 8th are stayed, and they are all going to be heard together. You can't have three stays and one not, and with the expedited schedule, they're not going to un-stay the other three. I wouldn't read anything regarding the ultimate outcome, one way or another. Depends on the panel.

  • 29. Mike_Baltimore  |  March 5, 2015 at 6:36 pm

    "It's the same rule across all the circuits. . . ."

    It is? Then get busy looking up ALL the circuits rule on this subject. And provide a link or links to EACH circuit's rule. You have given us the rule in two circuits, but remember, there are 11 additional circuits.

    By the way: "Unless otherwise expressly provided. . . ." is NOT the same as (your words): "The rules don't expressly provide exceptions" unless you can prove it, and just your saying so does NOT prove it.

    Or if it is the same rule in each circuit, why is it not a US Courts rule?

  • 30. Zack12  |  March 5, 2015 at 6:43 pm

    Unless we can get one or two of the Democrats on this court (which is a long shot) we are not winning in this circuit.
    None of the Republicans on this circuit are going to do us any favors.

  • 31. ianbirmingham  |  March 5, 2015 at 6:48 pm

    There aren't "11 additional circuits" – there are 9 additional circuits. Looking up their equivalent rules is left as an exercise for the reader :-)

    There is no such thing as a "US Courts rule" – each circuit has its own version of the rules, and the Supreme Court has its own rules as well.

    Feel free to look through the 5th Circuit's rule book (to which I already provided a link) for the "expressly provided exceptions" you are dreaming of. Then look at the rule books of all the other circuits. When you come up empty after all that, feel free to post here your reluctant admission that I am totally correct.

  • 32. Zack12  |  March 5, 2015 at 6:57 pm

    They can request the en banc but it can be dragged out.
    It's one of the reasons I suspect we will be seeing a pro ruling later versus sooner in order to make sure that doesn't happen.

  • 33. ianbirmingham  |  March 5, 2015 at 7:02 pm

    A petition for an en banc hearing is voted upon by the members of the 3-judge panel, not by the entire court. "Petitions for rehearing of panel decisions are reviewed by panel members only" – 5th Circuit rule 40.2 – http://www.ca5.uscourts.gov/clerk/docs/5thcir-iop

  • 34. Decided_Voter  |  March 5, 2015 at 7:10 pm

    That's fascinating. Well then they'll have to vote "no". Big smiles if that happened in the 5th.

  • 35. VIRick  |  March 5, 2015 at 7:20 pm

    "There aren't "11 additional circuits" – there are 9 additional circuits."

    No, Mike is correct on this point. There may be 9 additional NUMBERED circuits, but there are TWO more without numbers, the DC Circuit and the Court of Appeals for the Federal Circuit.

    From Wikipedia:

    The eleven numbered circuits and the D.C. Circuit are geographically defined. The thirteenth court of appeals is the United States Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over certain appeals based on their subject matter.

    Whenever I'm visiting DC, I've observed that my friend's dog has a habit of shitting on the front lawn of the DC Circuit Court of Appeals, so I'm well-aware of its existence and location.

    On the other hand, it is NOT a good idea to shit in front of the FBI building, around the corner, a block or so away.

  • 36. Raga  |  March 5, 2015 at 7:48 pm

    I'll be crushed if they don't appeal to the Supreme Court N O W to vacate this stay.

  • 37. VIRick  |  March 5, 2015 at 7:56 pm

    Indeed, me too.

  • 38. Decided_Voter  |  March 5, 2015 at 8:13 pm

    Someone on Equality Case Files is saying this would be a "writ of mandamus", and that they're "extremely rare" to be granted.
    https://www.facebook.com/EqualityCaseFiles/posts/

  • 39. tornado163  |  March 5, 2015 at 8:32 pm

    That's for a rehearing by the 3 judge panel. If the panel votes to not rehear the case, then every active judge votes on if there should be an en banc rehearing.

  • 40. Mike_Baltimore  |  March 5, 2015 at 8:39 pm

    "It's the same rule across all the circuits. . . ."

    That is YOUR assertion. It is up to you to PROVE the assertion.

    The "expressly provided exceptions" is a DIRECT quote from the 5th Circuit's rules, not what I might be "dreaming of".

    And yes, there are 13 US Courts of Appeals – 11 numbered Circuits, plus the United States Court of Appeals for the District of Columbia AND the United States Court of Appeals for the Federal Circuit. John Hinkley's appeal went from the DC District Court to the United States Court of Appeals for the District of Columbia.

    By the way, Antonin Scalia was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982 before he was nominated as an Associate Justice of the Supreme Court in 1988. Same thing for Clarence Thomas in 1990, and then SCOTUS in 1991. Same thing for Ruth Bader Ginsberg in 1980, and then to SCOTUS in 1993.

    And one of the reasons the Democrats used 'the Nuclear Option' for confirmation votes on nominations (except SCOTUS) was because the GOTP was blocking confirmation votes for the United States Court of Appeals for the District of Columbia Circuit, where federal legislation and regulations are often reviewed.

  • 41. Zack12  |  March 5, 2015 at 9:15 pm

    Indeed and they most certainly will.

  • 42. Zack12  |  March 5, 2015 at 9:18 pm

    I read on the Equality Case Files post that this is the panel that will hear the case.
    If that's true, I expect them to a rush a 3-0 ruling against us just to be spiteful.

  • 43. VIRick  |  March 5, 2015 at 9:30 pm

    "If the panel votes to not rehear the case, then every active judge (in that particular circuit court) votes on (whether or not) there should be an en banc rehearing."

    Correct. We just saw that several times around in the 9th Circuit.

    Senior judges in that circuit (unless they're a member of the original panel) do not vote on the question of the en banc rehearing.

  • 44. flyerguy77  |  March 5, 2015 at 9:32 pm

    Please give 8TH COA a benefit of doubt for now until we know the judges who will be sitting on the panel, and wait and see what SCOTUS does. April 28th SCOTUS is a bigger than May 12th (8th COA) April 28th OA IS a bigger picture because we could know what SCOTUS will do, it depends on questions from justices, And the 8th COA might pay attention to SCOTUS' actions. If the plaintiffs from Nebraska appeals to SCOTUS for lifting the stay and they grant it, I understand its rarely that they do that, and it will send signal to 8th COA SCOTUS is watching.

  • 45. Decided_Voter  |  March 5, 2015 at 9:40 pm

    Yah, I wonder how he knows that's the panel. Raga? Bueller? Anyone?

  • 46. VIRick  |  March 5, 2015 at 9:41 pm

    "…. the United States Court of Appeals for the District of Columbia Circuit, where federal legislation and regulations are often reviewed."

    Thank you, Mike. And yes, you've provided its full, precise, completely spelled-out name.

  • 47. Raga  |  March 5, 2015 at 9:49 pm

    I know that in the Texas abortion clinics closure case, the Fifth Circuit stayed the district court and the Supreme Court lifted that stay (in part). Why would it be a writ of mandamus? SCOTUS wouldn't have to command the Eighth to do anything. They'd simply be lifting the stay imposed by the Eighth Circuit. In any case, it would be unfair for the Eighth and Eleventh Circuits to be held to different standards for a stay.

  • 48. scream4ever  |  March 5, 2015 at 9:51 pm

    I don't think that is at all true. If so then the 8th has special rules compared to the other Circuits.

  • 49. Raga  |  March 5, 2015 at 9:56 pm

    I think this is how it happened in the Seventh Circuit – the motions panel that dealt with stays ultimately ended up hearing the cases. That wasn't the case in the Sixth – the emergency motions panel that stayed Michigan was different from the merits panel. Who knows how it will be for the Eighth? It is possible that for efficiency, the merits panel could be set to be the same as a motions panel that has already invested substantially into the subject matter of these cases. It depends on the local rules for the Eighth Circuit panel assignment. Does anyone remember if the motions panel on the previous Eighth Circuit stay decisions were revealed in those orders? It is odd that it is being revealed this time – perhaps it's because this motion was before an emergency motions panel?

  • 50. Zack12  |  March 5, 2015 at 10:01 pm

    Indeed, the D.C. Circuit was the last straw but they should have pulled the trigger much sooner and done away with the absurd blue slip rule.
    Bottom line, there are empty seats on some circuit courts and district courts that aren't getting filled any time soon.

  • 51. VIRick  |  March 5, 2015 at 10:17 pm

    "Does anyone remember if the motions panel on the previous Eighth Circuit stay decisions were revealed in those orders? It is odd that it is being revealed this time -"

    Raga, if the panel members' names were released on the several previous stay decisions, I missed it.

  • 52. Decided_Voter  |  March 5, 2015 at 10:27 pm

    I think the stay requests in SD and AR were under the jurisdiction of the district court and never made it to the circuit level. I can't remember on MO. Not sure if the first time they asked to lift it that it was the district judge, because it hadn't yet gone to circuit? The current one is pending with circuit since it's now in their hands. I have tried doing some searches on Lawson/MO to find an answer re the panel and am coming up with nothing (can't find an order).

  • 53. DrBriCA  |  March 5, 2015 at 11:13 pm

    I don't have the link either, but the plaintiffs in the Lawson case first asked the district judge to lift the stay (he declined and also said such action was practically moot since the specific county in question was licensing anyway), and then they asked the 8th circuit to lift the stay or to expedite the hearing. They even tried to nudge the 8th after the Florida stay request was declined by SCOTUS in late December. Meanwhile, the 8th circuit did release an order giving the expedited schedule for Arkansas first. I believe the clerk later released the order to combine the two cases and to deny the stay-lift request, but I don't believe a specific 3-person panel was listed in that order.

    Soon thereafter, SD joined the mix for the May 12 hearing, and I believe that order was also through the 8th circuit at large and written by the clerk of the court without a specific panel named.

    I agree with Raga that this one likely had the 3 person panel listed due to the "emergency" nature of the stay request.

  • 54. DrBriCA  |  March 5, 2015 at 11:27 pm

    Technically, although the federal case for Missouri is stayed, the county in question is licensing same-sex couples anyway (as is St. Louis via its own state court order). So, there already is one state in the mix that is different from the rest. It also recognizes outside marriages as well.

  • 55. Zack12  |  March 5, 2015 at 11:39 pm

    Update on the Alabama Supreme Court.
    I did some digging and found out another fact to make your blood boil.
    One of the hate groups that brought the lawsuit, the Alabama Policy Institute used to be called the Alabama Family Alliance.
    Whatever name they call themselves, they are a hate group that is a larger part of Focus On The Family.
    They are very, very anti-gay and have no qualms saying so.
    One of the founding members of that group is a man named Tom Parker who helped push many of the anti-gay policies in place in Alabama.
    What is Parker's current job you ask?
    Simply go to the Alabama Supreme Court for your answer. http://judicial.alabama.gov/bios/parker.cfm
    The fact this judge didn't recuse himself from hearing a lawsuit from the very hate group he co-founded simply shows once again what a joke this ruling was.

  • 56. flyerguy77  |  March 5, 2015 at 11:58 pm

    Oh holy %%^%%^^^% I want to like thumb up this post million times… Where ARE ACLU AND pro lgbt law orgs and try to vacate this JOKE AND ILLEGAL DECISION? Do we need to wait to end of june now?????????

  • 57. scream4ever  |  March 6, 2015 at 12:22 am

    I'll say it again, our side needs to petition to intervene and appeal to the SCOTUS to get it stayed!

  • 58. Decided_Voter  |  March 6, 2015 at 12:24 am

    Excellent work. Send to Joe.My.God. He loves this type of stuff, and he has a lot of readers.

  • 59. flyerguy77  |  March 6, 2015 at 12:27 am

    I hope they are getting their ducks in row and bringing the big guns out next week or so file an appeal/ file new lawsuits and try to appeal to SCOTUS

  • 60. Zack12  |  March 6, 2015 at 1:00 am

    I e-mailed him a while ago so I imagine this will be on his site before long.
    If nothing else, I hope this puts to bed the notion that Roy Moore is the only bigot on that court.
    He is simply the most vocal, that's all.

  • 61. JayJonson  |  March 6, 2015 at 5:41 am

    I am not sure that the 8th will issue a ruling before SCOTUS. If they hold arguments on May 12, they would have to rush a ruling to get it out before the end of June. They could do so, but surely they know that it would have no effect on the SCOTUS decision. I suppose that they could want to go on record as anti-marriage equality and thereby build their credits for a SCOTUS appointment by a Republican president or otherwise vindicate their conservative credentials. But most judges do not like to be reversed. Their more prudent course would be to sit on the decision until SCOTUS rules and then do what SCOTUS says. This, of course, means that there will not be marriage equality in the Eighth Circuit (except for St. Louis and Kansas City) until SCOTUS speaks.

  • 62. JayJonson  |  March 6, 2015 at 5:52 am

    I think they are trusting in Judge Granade to do the right thing. We also need to trust her.

    What I think would be most effective is for a couple of the county probate judges to show a little courage and simply defy the Alabama Supreme Court. I seriously doubt that the Governor or the Attorney General would prosecute them inasmuch as they are under a federal injunction. If any action were taken against them, they could go to federal court and force a showdown.

  • 63. JayJonson  |  March 6, 2015 at 6:00 am

    Op-Ed in the New York Times about Alabama's dangerous defiance.

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

    Lost count of how many rings there are in this circus.

    Roy Moore: Two U.S. Supreme Court justices should abstain from gay marriage vote [al.com]
    http://www.al.com/news/birmingham/index.ssf/2015/

    "Moore's wife, Kayla Moore, who is president of the President of the Montgomery-based Foundation for Moral Law, in September had also called upon Kagan and Ginsburg to recuse themselves from a case for the same reason." There is a link to the press release.

  • 65. Sagesse  |  March 6, 2015 at 6:08 am

    The author is a professor at the University of Alabama. Hmmm.

  • 66. BillinNO  |  March 6, 2015 at 6:31 am

    Sometimes I worry that judges who are due to render a decision on ME aren't following our blog, and thus won't know how to interpret the law- or their own courts' rules for that matter. You can lead a judge to water, I suppose.

  • 67. jm64tx  |  March 6, 2015 at 7:10 am

    Thats incorrect. Rule 40 does not apply to a petition for rehearing en banc. It is Rule 35.

    "35.2 Form of Petition. Twenty copies of every petition for en banc consideration, whether upon initial hearing or rehearing, must be filed. The petition must not be incorporated in the petition for rehearing before the panel, if one is filed, but must be complete in itself. In no case will a petition for en banc consideration adopt by reference any matter from the petition for panel rehearing or from any other briefs or motions in the case."

  • 68. Sagesse  |  March 6, 2015 at 7:41 am

    There is one other wrinkle, at least in the 9th, where any judge can request an en banc rehearing, but a majority of the judges need to agree. That is a longish process (30 days) and it drags out while lobbying goes on trying to get the votes. Don't see that happening in the 5th or the 8th… one of the parties will request en banc.

  • 69. Eric  |  March 6, 2015 at 8:02 am

    I know, right. Isn't it telling when laypersons know constitutional law better than an anti-gay activist judge?

  • 70. RemC_Chicago  |  March 6, 2015 at 8:03 am

    I'm going to fish out my crystal ball and predict that if we don't receive heightened scrutiny from SCOTUS in June, that we will then see a round of lawsuits in the coming year on the batch of "religious freedom" and anti-anti-discrimination bills that might force the issue.

    On a separate note: what the heck is happening to empathy and compassion in America, especially among legislators?

  • 71. Eric  |  March 6, 2015 at 8:05 am

    It's not a matter of trust. Rather, it is a matter of exercising all the legal options one has available.

  • 72. Eric  |  March 6, 2015 at 8:09 am

    File a complaint with the state bar.

  • 73. Zack12  |  March 6, 2015 at 8:12 am

    The problem is the big Republican wave in 2010 allowed Republicans in many states to control redestricting.
    Thus many of the Republicans in office now in the state and federal level are very very conservative because their districts were drawn that way.
    And sad to say, there is no way to get rid of many of them until 2021, when the maps can be redrawn again.

  • 74. RemC_Chicago  |  March 6, 2015 at 9:28 am

    Zack, have you forwarded your information to anyone at Freedom to Marry, HRC, ACLU or Lambda Legal?

  • 75. flyerguy77  |  March 6, 2015 at 10:50 am

    Does anybody know if the Neb plaintiffs are going to appeal to SCOTUS?

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