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READ IT HERE: Several Puerto Rico officials ask to file friend-of-the-court brief defending marriage ban in First Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

1stToday, several senators and representatives in Puerto Rico filed a request to allow them to file an out-of-time friend-of-the-court brief defending the marriage ban.

Puerto Rico decided to stop defending its ban in the First Circuit Court of Appeals, where the case is now pending. The same-sex couples lost in district court and appealed the loss, and now with top officials backing out of defending the ban, all parties support reversal.

According to the request, the government interest in defending the ban is not adequately represented.

Lambda Legal’s Puerto Rico plaintiffs have agreed to the filing of the request.

You can read the request here:

14-2184 – Amicus Brief of 8 Senators & 5 Representatives by Equality Case Files

Thanks to Equality Case Files for these filings

27 Comments

  • 1. guitaristbl  |  March 25, 2015 at 1:10 pm

    It was too good to be true anyway. It won't matter at the end though.

  • 2. Rick55845  |  March 25, 2015 at 1:20 pm

    Nothing has changed in the position of the PR government. They still are not going to defend their ban.

    This is just a motion by 8 senators and 4 representatives from PR to be allowed to file an amicus brief after the time limit for filing briefs. They just want to provide input to the court. They aren't asking to take part in the oral arguments before the 1st Circuit.

  • 3. seannynj  |  March 25, 2015 at 2:03 pm

    "Lambda Legal’s Puerto Rico plaintiffs have agreed to the filing of the request."

    Um….why?

  • 4. Elihu_Bystander  |  March 25, 2015 at 2:05 pm

    It is misleading to say, "The same-sex couples lost in district court and appealed the loss…"

    The plaintiffs' case was dismissed with prejudice by the district court judge because the judge said Baker v Nelson controlled. The plaintiffs are appealing the dismissal. If the plaintiffs prevail in the circuit court of appeals the only thing the circuit could do would be to vacate the dismissal and remand the case back to the district court to continue the case. All of this would take longer than 30-June-15.

    However getting the case remanded back to the district court would be a good thing because after an expected favorable SCOTUS ruling all these unfinished existing cases have to be quickly ruled upon for ME to actually happen in jurisdictions without finished cases.

    To hold the case at the circuit level until after the favorable SCOTUS ruling would only lengthen the the time required to get ME to PR.

    Of course, the PR legislature could appeal the offending laws and make the case moot.

  • 5. jpmassar  |  March 25, 2015 at 7:03 pm

    OT: Australia punts.


    CANBERRA, Australia — A much anticipated debate on gay marriage in Australia's Senate was postponed indefinitely on Thursday, March 26.

    The private bill proposed by Senator David Leyonhjelm of the minority Liberal Democrat Party was put off because the majority Liberal Party refused to allow a conscience vote. Prime Minister Tony Abbott, who leads the Liberals, has stubbornly refused to allow a conscience vote and ignored the polls that show overwhelming support for marriage equality.

    The Labor Party, also in the minority in the Senate, is largely in favor of marriage equality.

    Leyonhjelm told the media that any debate on Thursday — Australia is a day ahead of the Americas — would have been "somewhat artificial" since the Liberals as a party are opposed to same-sex marriage. A conscience vote would have allowed individual Liberals to vote from the heart, rather than following party lines.

    “There’s not a lot of point kicking off the debate if the Liberals haven’t changed,” Leyonhjelm told Sky News, adding that it would be “premature to speak” in the Senate on the issue if there was no chance the bill would pass.

    Political observers believe that a number of Liberal senators are in favor of marriage equality.

    The marriage debate will likely shift to mid-June at the earliest, according to media reports.

    http://www.sdgln.com/news/2015/03/25/breaking-did

  • 6. ianbirmingham  |  March 25, 2015 at 7:27 pm

    Because one of the fundamental requirements in a court case is that both parties have "standing" – the right to contest the issue in court. A basic requirement of "standing" is "concrete adverseness" – a genuine disagreement between the parties that the court will consider and rule upon. If the same-sex couples and Puerto Rico both agree that the law is unconstitutional, then there is no disagreement between the parties – no "concrete adverseness" – so letting the wingnuts file amicus briefs is a way of restoring the "concrete adverseness" that is crucial in order to allow the case to proceed.

    Informally, the Court wants to kick back and let the two parties punch each other out (with energetic legal arguments), and then decide who won only after both sides are exhausted. More formally: Perhaps the most important element of the requirement of adverse parties may be found in the “complexities and vagaries” of the standing doctrine. “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.

  • 7. F_Young  |  March 25, 2015 at 8:20 pm

    Off-topic: Tragic news from North Carolina

    Transgender Teen Who Was Crowned Homecoming King Dies

    "Brockington also described the toll that online comments had on him after he won homecoming king.
    "That was single-handedly the hardest part of my trans journey," he said. "Really hateful things were said on the Internet. It was hard. I saw how narrow-minded the world really is."

    http://www.huffingtonpost.com/2015/03/25/transgen

    Freedom of speech is very, very expensive when it's hate speech.

  • 8. wes228  |  March 26, 2015 at 7:25 am

    I don't really understand how that is applicable here given that Puerto Rico won in the court below, and even if they now believe their ban to be unconstitutional, would still not be able to issue a marriage license to the plaintiffs.

  • 9. DrPatrick1  |  March 26, 2015 at 7:47 am

    The only way to eliminate the Court system, is for PR to grant marriage licences. As they are still refusing, though not defending their refusal, there is a case or legitimate controversy. Standing focuses on who is bringing the case/appeal. It is the courts responsibility to ensure jurisdiction, which includes requiring that the court can actually grant what the plaintiffs/appellants want. This means, as part of the appeal/case, that they show, in the appeal/case, that it is the defendants who are empowered, if ordered by the court, to do what the plaintiffs want them to do.

    YES, the court much prefers an adversarial arrangement with both sides fully presented before they can rule, but they can and should hear and rule as long as the party seeking the case has standing and are suing the right people, even if those people don't present an adequate defense.

  • 10. ianbirmingham  |  March 26, 2015 at 8:16 am

    The appeal is not about marriage licenses. The appeal is about constitutionality, and as to constitutionality there is no concrete adverseness between PR and the plaintiffs.

    As Elihu_Bystander correctly notes below, once the constitutionality issue is argued and decided, the appeals court will remand the case back to the district court for further consideration of the marriage licenses issue.

  • 11. Mike_Baltimore  |  March 26, 2015 at 10:30 am

    My neighbor's tree falls across my driveway, thus blocking my access to the streets and highways I want, or need, to travel, and he won't pay for the tree to be cut up so I can access the streets and highways.

    Another neighbor almost certainly does not have standing (the fallen tree does not block that neighbor's access to needed streets and highways), but they can file an amicus brief, in favor of me or the neighbor.

    This is the case with the PR state Senators and Representatives. They almost certainly do NOT have standing, but they can file amicus briefs. The deadline for filing amicus briefs has passed, however, so the PR state Senators and Representatives are asking the court for permission to file the amicus briefs now, even though the deadline has passed.

    There is NO attempt to gain standing, so your entire argument about the meaning of 'concrete adverseness' is superflous to this specific discussion, and your comment about the judges 'sitting back and letting the parties 'duke it out' ' is nice, but not pertinent to the discussion.

    And if the defendants do not put up an adequate defense (or no defense), they almost certainly will lose the case to the plaintiffs. But in order to put up a defense, the party MUST have standing, and the PR state Senators and Representatives do not have standing, nor are they asking for such.

  • 12. ianbirmingham  |  March 26, 2015 at 10:50 am

    Nice try, but wrong. The standing of an existing party (PR) can be legally maintained (despite its non-adverse position) via the insertion of a concretely adverse amicus brief from a source which does not itself have standing:

    In United States v. Lovett. Congress had passed a law prohibiting the payment of salary to three government employees. The executive branch ceased paying the employees, who then sued. In the litigation, the government agreed with the employees that the statutory prohibition was unconstitutional. A majority of judges on the Court of Claims also agreed, and that court issued an injunction against the government, from which the United States appealed to the Supreme Court, even though the U.S. argued that the injunction was proper. In its merits brief, the government explained that it had sought review because “important constitutional issues are involved which should be determined by this Court,” and because the amicus representing Congress, “having no independent means of access to the Court, requested that a petition for writs of certiorari be filed.”

    At the suggestion of the Department of Justice, Congress appointed its own special counsel, who appeared as amicus curiae in the Court of Claims and in the Supreme Court to defend the constitutionality of the statute. As the United States put it in its brief, it was the congressional amici who were of the view that the judgment below was wrong, and “[t]he legislative branch which they represent is therefore the challenger of the judgments below,” even though the U.S. was the petitioner, and the only government party in the case.

    http://www.scotusblog.com/2013/01/understanding-s

  • 13. EricKoszyk  |  March 26, 2015 at 11:34 am

    The first big company has responded to the Indiana governor signing a right to discriminate bill this morning. It will no longer work on programs that require its customers or employees to travel to Indiana.
    http://www.thenewcivilrightsmovement.com/davidbad

  • 14. RnL2008  |  March 26, 2015 at 11:46 am

    The news out of Indiana is not great, but was expected I think: http://www.cnn.com/2015/03/25/politics/mike-pence

  • 15. SPQRobin  |  March 26, 2015 at 11:52 am

    Off-topic: the Slovenian National Assembly just voted 53-21 to block the referendum on gay marriage. https://english.sta.si/2118528/mps-vote-to-ban-gahttps://twitter.com/hashtag/zzzdr http://www.rtvslo.si/slovenija/poslanci-so-zavrni

    Now the anti-gay groups will likely appeal to the Constitutional Court.

  • 16. scream4ever  |  March 26, 2015 at 12:13 pm

    Many more to come it looks like too. Whatever it takes!

  • 17. scream4ever  |  March 26, 2015 at 12:15 pm

    This is great news, considering the ruling party previously said they would only block it after the signatures were collected. I fully expect the Constitutional Court to side with us since after the previous referendum the constitution was amended to disallow referendums on human rights (even without said amendment the court previously allowed the referendum to proceed by just a 5-4 vote).

  • 18. DrPatrick1  |  March 26, 2015 at 12:33 pm

    Amici, no matter the number or claims made therein, have nothing to do with whether the case can proceed. They are neither necessary nor sufficient.

    An Amicus brief is often the only way an uninvolved party can provide input into a case. Another way would be if the court grants intervenor status.

    In the DOMA case (Windsor), the court granted, and heard, the Obama petition for writ of certiori, and allowed BLAG to intervene in the case both with written briefs and at oral argument. The court did not grant cert for the BLAG writ of certiori.

    Bottom line, the question of standing is moot because the plaintiffs are seeking relief which cannot be granted without the court's intervention. PR now agrees with getting rid of Baker, and though some AMICI will be filed which would argue in favor of keeping Baker, the 1st Circuit will certainly, and uncontroversially, rule in favor of the plaintiffs which will send the case back to District court to decide the underlying marriage issue (which will likely not happen until after June 2015 and thus should be a quick injunction against PR's refusal to issue marriage licenses in an equal fashion.).

  • 19. guitaristbl  |  March 26, 2015 at 12:34 pm

    Has the composition of the Constitutional Court changed ? If not, even after the referendum law enacted we may get a 5-4 vote :- Again it will take 20 % of registered voters to vote against the law..Last time around it was about 15 % of registered voters who voted to repeal the law, I don't think they will increase this time around..

  • 20. SethInMaryland  |  March 26, 2015 at 1:03 pm

    first step in avances in Italy : civil union advances By a vote of 14-8 Italy's Senate Judiciary Committee today advanced a civil unions bill that would also allow gay couples to adopt each others' children and visit each other in the hospital. Outside adoptions by same-sex couples would remain banned. Same-sex marriages conducted legally in foreign countries would be recognized domestically as civil unions. The bill is opposed by Forza Italia, the party headed by former Prime Minister Silvio Berlusconi, who is currently banned from holding public office following his conviction on corruption charges.

  • 21. SethInMaryland  |  March 26, 2015 at 1:03 pm

    Greenland's marriage bill was scheduled for a reading yesterday and the next is on May 15, if approved Greenlanders can marry/adopt as a couple on October.

  • 22. guitaristbl  |  March 26, 2015 at 1:32 pm

    The step-adoption part is quite important, I was not sure it would be included ! It's not full parental rights but again eat that D&G !

  • 23. VIRick  |  March 26, 2015 at 2:04 pm

    @ Mike_Baltimore: precisely.

  • 24. scream4ever  |  March 26, 2015 at 2:28 pm

    I also forgot to mention that since the last referendum, the European Union voted to declare same-sex marriage a human right (Slovenia is a member of the EU).

  • 25. F_Young  |  March 26, 2015 at 2:29 pm

    SethinMaryland: " if approved Greenlanders can marry/adopt as a couple on October"

    I'd love to see a huge splash of Navy on the Wiki map!

  • 26. itscoldoutside  |  March 26, 2015 at 5:19 pm

    The composition of the Constitutional Court is the same as it was back then.

  • 27. SPQRobin  |  March 28, 2015 at 7:51 am

    Well that was part of an annual report on human rights and democracy in the world, which is merely a resolution by the European Parliament.

    As for Slovenia: I found an interesting blog: http://www.pengovsky.com/2015/03/27/referendum-onhttp://www.pengovsky.com/2015/03/03/same-sex-marr

    Apparently the Constitutional Court could allow the referendum on procedural grounds.

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