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First Circuit: No arguments in Puerto Rico marriage case until Supreme Court decides issue

LGBT Legal Cases Marriage equality Marriage Equality Trials

1stThe First Circuit Court of Appeals issued an order this morning declining to set oral arguments in the challenge to Puerto Rico’s same-sex marriage ban. Instead, the appeals court has asked for a proposed schedule for further proceedings in the case, to be filed within 14 days of the Supreme Court’s decision in the four marriage cases from the Sixth Circuit. That decision is expected in late June.

Puerto Rico officials changed their position on the marriage ban, deciding not to defend it after they won their case in federal district court.. Several lawmakers have asked for the chance to defend the ban instead, and there’s litigation within Puerto Rico to force officials to defend the ban regardless of their changed position.

Thanks to Equality Case Files for these filings

57 Comments

  • 1. jcmeiners  |  April 14, 2015 at 10:04 am

    Cowards? Or just lazy?

  • 2. seannynj  |  April 14, 2015 at 10:23 am

    Neither. All states in the 1st circuit have marriage equality already so no need for any cowardice. The PR plaintiffs could only ask for a hearing so that plus a ruling would mostly likely happen after June 30th. It kind of makes since to just wait and see what the SC says at this point.

  • 3. davepCA  |  April 14, 2015 at 10:25 am

    Yeah, it's annoying, and I bet especially so for folks in Puerto Rico. But I don't understand why anyone on the anti-gay side in Puerto Rico would want to 'force officials to defend the ban' after those officials have made it clear they don't agree with the ban ..? I guess it would be good for us if those folks get their wish…

  • 4. guitaristbl  |  April 14, 2015 at 10:44 am

    Dissapointing…It seems only the 8th goes forward, rushing to issue an opinion against marriage equality. And I have this terrible feeling that the 5th has no intention to issue an opinion before SCOTUS decides either. After all they do not have to "stay" proceedings officially, do they ? They can sit on the case for as long as they like since oral arguments were heard..

  • 5. Eric  |  April 14, 2015 at 10:56 am

    Indifferent. The court doesn't care that gays and lesbians are being denied their fundamental rights.

  • 6. Zack12  |  April 14, 2015 at 10:56 am

    The big problem in the 5th is that any pro-ruling for our side will certainly be met with an en banc request, which would put a ruling in our favor on hold.
    More to the point, if they do it fast enough, an en banc will quickly undo any pro-gay marriage ruling that comes out of the 5th.
    I'm hoping they'll release their ruling in May and counter the negative one we will get out of the 8th.

  • 7. guitaristbl  |  April 14, 2015 at 11:07 am

    At this point there is no "fast enough" that can happen in time for an en banc court to issue an opinion before SCOTUS really. Even if the majority was so determined to do so, the minority of dissenters would delay it anyway. A positive ruling is a positive ruling regardless of whether it goes in effect or not though and yes it would help to balance the fallout from the expected result in the 8th.

  • 8. davepCA  |  April 14, 2015 at 11:14 am

    At this point, I have a gut feeling we won't be getting any ruling from either the 5th or 8th and they will just let the clock run out until the SCOTUS ruling in June. If both of those circuits really do want to rule against us, I would bet that they don't want to do so just to be told "No, you are wrong, and you are trying to allow unconstitutional laws to remain in effect" by the SCOTUS ruling just a few weeks later. By not doing anything until the June SCOTUS decision, they can side step the whole question and say "oh well, SCOTUS has spoken".

    Basically, I think they may KNOW that what they WANT to do and what the Constitution DEMANDS that they do are two different things.

  • 9. guitaristbl  |  April 14, 2015 at 11:41 am

    "If both of those circuits really do want to rule against us, I would bet that they don't want to do so just to be told "No, you are wrong, and you are trying to allow unconstitutional laws to remain in effect" by the SCOTUS ruling just a few weeks later."

    You do forget that some of them do not care, especially the potential SCOTUS nominess under a potential republican president.

  • 10. davepCA  |  April 14, 2015 at 11:57 am

    I bet that those who do care about getting nominated for a SCOTUS position know enough about politics to see that they would be better off sidestepping this issue. They have no way of knowing if the next president will be a republican.

  • 11. Zack12  |  April 14, 2015 at 12:03 pm

    It's the double edged sword for them.
    Ruling against us will certainly endear them to the right wing but will make it very hard for them to get through a confirmation hearing.

  • 12. Mike_Baltimore  |  April 14, 2015 at 12:18 pm

    Neither, IMO.

    Most likely realists.

    If a hearing were to be ordered today, the defendants would have three or so weeks to present their side, plaintiffs another three or so weeks to present their side, then the defendants a week or so to present rebuttals. This would take us to early- to mid-June. Let's say the court takes a week to read all the briefs and 'friend of the court briefs' (very fast for the court system), then orders the hearing. We are now in the middle to late June. Even if it is a quick hearing, and the ruling is from the bench, the ruling will be in effect for a week, two at the most, until the SCOTUS ruling comes down. No matter how SCOTUS rules, it's ruling will supercede any ruling the 1st Circuit hands down. Why rule now, as the SCOTUS ruling will supercede? And what happens in PR if the attempt to force the officials to defend current PR law fails?

    Besides, any appeal would go to SCOTUS. Unless there is a sudden death or major incapacity of any justice on SCOTUS, no justice has announced plans to step down. so the current line-up of justices would appear to stay the same. Yes, SCOTUS can change it's mind and rule differently, but to my knowledge, it hasn't changed it's mind and ruled differently in less than a year after the initial ruling. Several years, if not decades, and the court line-up of justices changes, normally elapse for that to happen.

  • 13. weaverbear  |  April 14, 2015 at 2:19 pm

    Folks-

    In the US, the very first marriages for same gender couples happened May 17, 2004 in Massachusetts. In the just under 11 years since it has become legal in 36 states plus DC. Nationwide, we are now at a majority of the public in support of us having this right. That's a sea note change friends. Thru the efforts of those who've been at the forefront of each court case, each and every get out the vote drive, every last person who's called or written their legislators, our marital rights have been pushed forward at a pace that may feel glacial at times to us, but in reality is amazingly fast for social change movements. From the first state to allow interracial marriages (Pennsylvania, 1780) to Loving v. Virginia was 187 years. Unless I'm very very wrong about SCOTUS and what I think they'll do this June, for our community this will be just over 11 years.

    More and more, society is recognizing us for who we are and where we are; as we come out of the closet, people have come to realize, we're really coming out of the woodwork. We've become much more visible and tangible and in doing so, we're harder to be the abstract bogey man the far right would like us to be. Westboro Baptist has proven will all their vitriol to be one of our biggest allies – they have offended so many people in the mainstream that we have gained public support because of them. Brian Brown and Maggie Gallagher are losing the battle for hearts and minds of everyday folk. Now they have to spew their venom in distant places like Uganda and Russia, as they realize our society is changing and their time to be a major influence here in the US is drawing to a close. Not soon enough, but soon.

    I'm not being Pollyanna here, friends. We still have plenty of work to do and battles to fight. We still don't have uniform job and housing protection and as we win our marriage rights, those things will need to be next. We need to network and move in tandem with other minority communities who have suffered abridgment of their rights.

    It's coming friends, and it's coming in our lifetime.

  • 14. scream4ever  |  April 14, 2015 at 3:33 pm

    37. I still count Kansas and Alabama even though they're not fully being enforced.

  • 15. Zack12  |  April 14, 2015 at 4:12 pm

    On a related note to all of this, I know some people are still worried SCOTUS will split the baby, leaving the in state bans in place while allowing for recognition of marriages in other states.
    To me that ship sailed last fall when they refused to hear any of the cases from the various circuits and started to sink when they allowed marriages to start in Florida and Alabama.
    It's all or nothing at this point and I think we will get the all.

  • 16. ebohlman  |  April 14, 2015 at 4:17 pm

    And also consider that this is merely a procedural appeal of the PR court's decision to dismiss, not an appeal on the merits. The question before the 1CA is whether the PR case is dead or should continue at the district level. If they rule favorably, it doesn't mean immediate ME in PR; it means the case goes back to district court.

  • 17. sfbob  |  April 14, 2015 at 4:25 pm

    I'm not seriously worried about this one either. I suppose it's possible that a fully favorable ruling for us, particularly on the recognition issue, would create precedent that could be used against states which refuse to recognize first-cousin marriages legally performed in other states. But I think there are independent reasons why such challenges would fail, and that's why nobody's tried to fight such laws recently and the reality is that most states already recognize all marriages legally solemnized elsewhere…except of course for ours.

  • 18. A_Jayne  |  April 14, 2015 at 4:51 pm

    Those words are the most incredible to me – "in our lifetime" – for most of my life, I would never have even dreamed that…

  • 19. Mike_Baltimore  |  April 14, 2015 at 6:05 pm

    I had forgotten about that.

    That means the party that appealed is the plaintiffs (the gay couples), not the defendants, so the above scenario changes ONLY with the plaintiffs, then the defendants, then the plaintiffs' rebuttal. The time frames remain (as approximately described above).

    And does anyone think the District court judge will be in any hurry to try the case again (if one thinks the judge 'tried' the case originally)?

  • 20. seannynj  |  April 14, 2015 at 7:40 pm

    There is no way to have a retrial. The defendants gave up and threw there support behind the plaintiffs. Nobody else has standing to step in to defend the ban.

  • 21. Silvershrimp0  |  April 14, 2015 at 9:04 pm

    Guam will begin issuing marriage licenses. http://www.usatoday.com/story/news/nation/2015/04

    >Guam Attorney General Elizabeth Barrett-Anderson said Wednesday she is directing the island's public health department to immediately start issuing marriage licenses to same-sex couples.

    "The Department is advised to treat all same gender marriage applicants with dignity and equality under the Constitution of our nation, and the ruling of the Ninth Circuit Court of Appeals," Barrett-Anderson said in a legal memorandum to Public Health's acting Director Leo Casil.

  • 22. VIRick  |  April 14, 2015 at 9:15 pm

    "…. said Wednesday …."

    That's Wednesday, 15 April 2015, as it's already tomorrow in Guam.

    All lawsuits should end so quickly, and with such positive results.

  • 23. VIRick  |  April 14, 2015 at 9:35 pm

    Correct, therefore marriage equality will become the law in Puerto Rico the same day the Supreme Court overturns the ban in the 6th Circuit states, and issues a nationwide ruling.

    The 1st Circuit Court can then rule the current appeal moot. This case will not be returned to the district court for any purpose whatsoever.

  • 24. DrBriCA  |  April 14, 2015 at 9:42 pm

    http://www.guampdn.com/article/20150415/NEWS01/15

    Seems though that Acting Director Leo Casil doesn't care with the AG says and will wait hear from the Governor's office within next two days before processing/accepting any same-sex marriage licenses.

  • 25. Mike_Baltimore  |  April 14, 2015 at 9:51 pm

    NBC News also has an article about the situation in Guam, although not the information about Acting Director Leo Casil pointed out by Dr. Bri. http://www.nbcnews.com/news/us-news/guam-becomes-

  • 26. scream4ever  |  April 14, 2015 at 11:20 pm

    I've been wondering about that VIRick. So therefore once the ruling is handed down, it should automatically apply to all 50 states plus the territories? I was thinking the states/territories outside of the immediate case at hand (i.e., the Sixth Circuit) would have to go through the same process as those within the Circuits did when the Supreme Court denied cert last October.

  • 27. VIRick  |  April 14, 2015 at 11:39 pm

    Puerto Rico's situation is such an oddity. Right now, there's a law that does not allow same-sex marriage, a law which is not being defended and that will soon be rendered unconstitutional.

    The case challenging that law was dismissed in district court. The dismissal was appealed to the 1st Circuit Court, where it now sits. In the meantime, the state has declined to defend its law in court any further.

    So either the law needs to be changed, or be ruled unconstitutional. The Supreme Court's ruling in late June ought to be sufficient to do the latter.

    Reflect back on the situation in West Virginia. On 6 October 2014, the Supreme Court declined to hear the appeal from Virginia, and allowed the 4th Circuit Court's decision to stand. Within days, on 9 October, the governor of West Virginia (also in the 4th Circuit) issued an executive order to allow same-sex marriage statewide within West Virginia, notwithstanding their existing law. The district court judge hearing the West Virginia case did not issue his ruling striking down the ban until 7 November 2014, almost a month later.

    As soon as the Supreme Court issues its ruling, the governor of Puerto Rico can issue his executive order in compliance with said ruling (just like the governor of West Virginia before him).

  • 28. scream4ever  |  April 14, 2015 at 11:54 pm

    I'm confused, does the latest update indicate that the governor will not be allowing licenses to be issued or just that the lawsuit will continue?

  • 29. F_Young  |  April 15, 2015 at 1:16 am

    Off-topic: A scientific look at the damage parents do when they bully their gay kids
    We don’t allow LGBT youth to be bullied in school. Why do we allow it in their homes?

    …..The evidence abounds: Kids lacking parental support for their sexual orientation are at higher risk for mental health problems, drug use, and unprotected sex. And the risk isn’t minor – those who felt rejected by their families are eight times more likely to have attempted suicide.

    These risks face far too many young people: More than one in four LGBT youth say parents and relatives who don’t accept them are the biggest problem in their lives, according to a Human Rights Campaign survey.

    http://www.washingtonpost.com/posteverything/wp/2

  • 30. DrBriCA  |  April 15, 2015 at 1:33 am

    It sounds as though the Governor is not ready to throw in the towel just quite yet and is still reviewing the lawsuit and the AG's opinion with his own legal team. Whether he'll back down in a couple days after recognizing the 9th's clear precedence versus hold out until the SCOTUS decision in June is to be seen.

    According to Pacific News Center: http://www.pacificnewscenter.com/government/item/

    Governor's Office statement:

    "The governor received the court documents for the lawsuit filed by Loretta Pangelinan and Kathleen Aguero yesterday afternoon. The governor respects the opinion of the Attorney General. He currently has his legal team reviewing the AG’s position and further researching the issue. This is a significant decision, and the governor and lieutenant governor want to make sure they are thoroughly informed. It brings to light the circuit courts split.

    "The Ninth Circuit court ruled that state bans on marriages by persons of the same gender are unconstitutional. Like many other jurisdictions, we’ve been watching the Supreme Court, where oral arguments are due to start next week and a decision is expected by June. The Sixth Circuit appeal asks the question of whether the definition of marriage should be defined by the federal courts or by local legislatures.

    "Governor Calvo has stated that the Guam Legislature enacted law that defines marriage for our people. While this current legal issue is being reviewed, if it is the will of the people of Guam to make same-sex marriage legal on Guam, then the Guam Legislature, the people of Guam’s representatives, can take action to change the law, or a referendum can be held giving the people of Guam a direct voice in this issue."

  • 31. A_Jayne  |  April 15, 2015 at 2:27 am

    The governor and lt. governor can fuss about a circuit split all they want. Guam is in the 9th Circuit, and precedent set there affects Guam. What Cook and Sutton decided has no affect on Guam whatsoever.

    All they needed was for a case to be filed, which it now has. The "current legal issue" in his statement has already been decided for Guam.

  • 32. wes228  |  April 15, 2015 at 4:45 am

    I love it when people think they get to pick and choose which court's opinion matters. "The Supreme Court hasn't ruled yet!" "The 6th Circuit upheld the bans!"

    Well guess what! Guam is in the 9th Circuit and the Supreme Court has ruled at least TWICE that their ruling must go into effect IMMEDIATELY!

  • 33. F_Young  |  April 15, 2015 at 6:28 am

    Off-topic: How Christians Turned Against Gay Conversion Therapy
    Obama's call to ban the practice reflects a tectonic shift within the community that once championed it.

    http://www.theatlantic.com/politics/archive/2015/

  • 34. F_Young  |  April 15, 2015 at 8:04 am

    Texas businesses band together against LGBT discrimination

    …..Dubbed Texas Competes, the initiative includes some of Texas' biggest companies such as Southwest Airlines Inc. and Dell Inc. and a number of Chambers of Commerce chapters from around the state. The more-than 100 companies and business organizations taking part in the initiative have pledged to support equal rights for the LGBT community.

    …..It is the second time in recent weeks that prominent voices in Texas' business community have announced their commitment against LGBT discrimination. Earlier in April, Texas Association of Business CEO Bill Hammond took part in a media conference with LGBT civil rights activists and Democratic lawmakers to state his group's opposition to measures similar to Indiana's controversial religious freedom act.

    http://www.bizjournals.com/austin/news/2015/04/15

  • 35. Mike_Baltimore  |  April 15, 2015 at 11:30 am

    So 'the people' can decide if a suspect can have legal representation before a trial, and if they cannot afford such, the state has to provide it? Suspect rights are not clearly covered in the US Constitution.

    I thought the US Supreme Court decided this issue several decades ago in the 'Miranda' case (in 1966).

    More evidence that the Governor has decided the 'people' can pick and choose which cases to observe or ignore.

  • 36. Mike_Baltimore  |  April 15, 2015 at 11:51 am

    When the 'Loving' case was decided in 1967, the ruling went into effect nation-wide immediately upon the SCOTUS ruling.

    Virginia is (and was) in the 4CA. Alabama (then in the 5CA, now in the 11CA) had an anti-miscegenation law on the books, and a state constitutional ban on miscegenation, at the time that became unenforceable as soon as the 'Loving' decision was handed down by SCOTUS.

    Thus SCOTUS rulings have nationwide effect, including the territories.

  • 37. scream4ever  |  April 15, 2015 at 1:58 pm

    Thanks Mike that's good to know!

  • 38. Lymis  |  April 15, 2015 at 3:00 pm

    I still fear they'll split the baby by declaring that marriage is a matter subject to heightened scrutiny as a fundamental right, apply it to us as citizens, and then declare that all other LGBT-related questions, including the appropriate level of scrutiny and how our rights weigh against any perceived religious liberties are outside the scope of the case and therefore will not be addressed.

    That will still be huge progress, but depending not only on what they rule but how and why, it could provide a sweeping precedent for other issues or none at all.

  • 39. wes228  |  April 15, 2015 at 3:08 pm

    I don't think this is quite correct. Yes, SCOTUS rulings create binding, nationwide precedent but a SCOTUS ruling is not a court order that orders any particular individual to do anything.

    The order that comes out of SCOTUS is to AFFIRM or REVERSE the court below (with a few other options like vacate, remand, bla bla bla). If they reverse the 6th Circuit, the 6th Circuit must issue an order affirming the District Court rulings, which then put into place those particular orders coming out of those courts.

    With a Supreme Court ruling, it would be wise for all the states to just immediately get on board, rather than letting it go through District Court to get a statewide injunction. For one, there is no chance of winning, and two, state defendants would not have qualified immunity. They would clearly know their actions were unconstitutional (there being no room for reasonable disagreement from a legal perspective) and therefore would be personally liable for damages.

  • 40. Mike_Baltimore  |  April 15, 2015 at 4:15 pm

    ". . . a SCOTUS ruling is not a court order that orders any particular individual to do anything."

    In the 1950s, Boston was building Interstate Highways, and paying property owners $1.00 for each property. SCOTUS ruled that EACH owner was owed the value of their property. Thus the city of Boston (technically a collection of individuals) was forced to pay individuals the value of their property.

  • 41. wes228  |  April 15, 2015 at 4:49 pm

    Can you link to that decision? Because I find that unlikely (unless it was somehow a case in the Court's original jurisdiction). I imagine that they affirmed a lower court's order ordering the payments.

  • 42. sfbob  |  April 15, 2015 at 5:14 pm

    More to the point here, when Lawrence vs Texas was decided in 2003 all remaining state bans on sodomy IMMEDIATELY became null and void. It would have been wise for those states with remaining sodomy bans to have then removed them from their books; I believe a couple did but most, rather defiantly, have kept them there.

    People can still, in theory, be arrested for violating those laws but NOBODY can be successfully prosecuted for violating them. And while a state trooper or a local sheriff's deputy might arrest someone for violating an anti-sodomy law, the local District Attorney (perhaps after being reminded that they can be sued and will lose) will advise the arresting officer to release the persons he or she has arrested. Or else.

    As for anti-miscegenation laws, it took 33 years subsequent to Loving vs Virginia for the last state ban on interracial marriage to be stricken from a state's statutes. Nonetheless, during that time and despite the occasional attempt on the part of some fools to continue to enforcing those laws they were nonetheless unenforceable.

  • 43. wes228  |  April 15, 2015 at 6:12 pm

    Yes, they are certainly unenforceable. But when the Supreme Court issues an order, that is not a binding injunction on a particular person to stop doing something.

    When the Supreme Court reverses the 6th, say twenty minutes later a clerk in Mississippi still refuses to issue a marriage license. That clerk is not in contempt of court. There is no injunction against him barring him from enforcing the anti-gay marriage law.

    He would be correct, though, to issue the license even though a court is not directly ordering him to. If he doesn't, he will be sued and **he will not have qualified immunity**!!! Meaning he will have to personally pay through the nose (not the taxpayers)/go to jail for violating someone's constitutional rights. He can't hide behind the fact that it wasn't certain if he was violating their constitutional rights or not (called "qualified immunity").

    When the Supreme Court rules on the 6th Circuit case, a domino effect will have to occur to truly get everyone under a binding order. They will likely grant and summarily affirm the 9th Circuit ruling, grant and reverse the 8th Circuit ruling (assuming they issue a quick decision against us). Various stays will have to be lifted (5th Circuit, 8th Circuit)…the 1st and 11th Circuits will issue their decisions very quickly (the 1st Circuit ordered parties to update the court within two weeks of the Supreme Court decision on how to proceed).

    In the meantime, everyone is expected to follow the Supreme Court ruling (again, no qualified immunity once it comes out) while all of this is playing out. But the Supreme Court ruling will not automatically end all the other procedural housekeeping in other courts.

  • 44. Zack12  |  April 15, 2015 at 6:31 pm

    Indeed, I have a feeling we are going to see some foot dragging when all is said and done.
    But as you said, those people will be hit right in their pocketbooks for it.

  • 45. sfbob  |  April 15, 2015 at 9:43 pm

    Okay I see what you're saying. Thanks, wes.

  • 46. Mike_Baltimore  |  April 15, 2015 at 10:21 pm

    ". . . when the Supreme Court issues an order, that is not a binding injunction on a particular person to stop doing something."

    When Congress passed the Civil Rights Act of 1964, Acting Attorney General Katzenbach sued Ollie McClung, owner of the Ollie's Barbecue Restaurant (located in Birmingham, Alabama). (The case was combined with the 'Heart of Atlanta Motel' case at SCOTUS.) Mr. McClung argued that the federal government had no right to impose any regulations on small, private businesses.

    In the 9-0 decision, SCOTUS upheld Congress's actions, and ordered Ollie's Barbecue, and thus Ollie McClung, to serve African-American patrons in the same manner as it treated whites.

    Besides, Ollie McClung won at the Federal District for Northern Alabama, and the Circuit Court was skipped. Thus there was NO court decision for SCOTUS to affirm.

    BTW – the 'C' in SCOTUS stands for what? Maybe court?

  • 47. VIRick  |  April 15, 2015 at 11:19 pm

    "…. when the Supreme Court issues an order, that is not a binding injunction on a particular person to stop doing something."

    Wes, I beg to differ. Here's another case from the Federal District court for Northern Alabama:

    In "United States v. Brittain" (1970), three years after "Loving," the DOJ, acting for the US government and the US Army, sued G. Clyde Brittain, probate Judge for Calhoun County AL, and the state of Alabama, to enjoin them from enforcing their anti-miscegenation laws, including their state constitutional amendment:

    "A judgment will be entered, declaring null, void and violative of the Fourteenth Amendment of the Constitution the Alabama laws in question; enjoining the State of Alabama, its officers, agents, employees, and their successors, and all those acting in concert or participation with them from enforcing or giving any effect to such laws; and requiring the Attorney General of the State of Alabama to advise the Judges of Probate of the several counties of Alabama of the invalidity of Title 14, Section 361, 1940 Code of Alabama under the decision of this Court."

    And this was simply at the District Court level. But I think Mr. Brittain was thoroughly and completely told.
    http://law.justia.com/cases/federal/district-cour

  • 48. wes228  |  April 16, 2015 at 6:30 am

    Certainly, District Courts enter injunctions.

    The actual order that came out of the Supreme Court in Heart of Atlanta Motel is simply "AFFIRMED" meaning the order issued by the District Court for the Northern District of Georgia (that the motel must serve black patrons) is affirmed and valid. The actual order for the Heart of Atlanta Motel to serve black patrons came from the District Court.

  • 49. wes228  |  April 16, 2015 at 8:31 am

    In nearly all instances, the Supreme Court sits as an appellate court. Appellate courts do not issue orders binding parties; they issue rulings binding lower courts.

    The Supreme Court did not order Ollie's Barbecue to serve anyone. They AFFIRMED the ruling and injunction of the District Court (the fact that there was no Circuit Court ruling makes no difference–there was a lower court to affirm, the District Court). The actual order for Ollie's Barbeque to serve to serve anyone came from the District Court.

  • 50. sfbob  |  April 16, 2015 at 10:26 am

    We all should probably bookmark that case. It's bound to come up again after the end of June.

    I have very little doubt that the Supreme Court will rule in our favor in Obergefell, et al but I have even less doubt that no matter how broad that ruling may be, some state or some justice of the peace or probate judge or county clerk will do all in their power to defy it.

  • 51. Mike_Baltimore  |  April 16, 2015 at 11:59 am

    "In nearly all instances. . ..'

    And in those instances when it isn't an appellate court?

    Oh, and the District Court ruled in Mr. McClung's favor, so if SCOTUS had affirmed the ruling of the district court, Mr. McClung could have continued to be the discriminatory bigot he had always been.

    I take it that SCOTUS affirming the district court ruling and allowing Mr. McClung to continue to allow bigotry at his restaurant would have been hunky-dorry with you?

  • 52. Lynn_E  |  April 16, 2015 at 12:35 pm

    After the Lawrence ruling, the AG of Utah announced in a news conference that he felt the ruling would have no effect on any state but Texas. As far as I know, he has been silent on the subject ever since. States will try to save face, some may even attempt to enforce the bans, but I doubt there will be a case that makes it to trial after June.

  • 53. wes228  |  April 16, 2015 at 12:56 pm

    In the rare instances when the Supreme Court sits as a trial court, yes it can issue injunctions just like any District Court (which are always trial courts).

    SCOTUS did affirm the ruling of the District Court. By doing so, they ruled that the District Court's injunction against Mr. McClung was valid. The injunction itself, however, did not come from SCOTUS. It came from the Distrit Court.

  • 54. ianbirmingham  |  April 16, 2015 at 1:50 pm

    What "independent reasons" are you referring to?

    http://marriage-equality.blogspot.com/p/discredit

  • 55. sfbob  |  April 16, 2015 at 3:00 pm

    In the case of first-cousin marriages I presume that bans on those probably have two proffered justifications:

    1. A eugenics argument based on potential for in-breeding. I assume that's how those states which allow first-cousin marriages only if one or both spouses are above a certain age of if one or both present medical evidence that they are sterile justify both the laws and the limited exceptions.

    2. An argument based on consanguinity–the idea that first-cousins already have a biological relationship with each other and that therefore such a marriage could be construed as being incestuous.

    Whether those are the actual justifications used by states that ban such marriages use–assuming they even HAVE justifications–or not I really don't know. It could very well be that first-cousin marriage bans were put in place without any specific justification at all. It does seem to me that if someone were to try to mount a challenge to a ban on first-cousin marriages the courts might be sympathetic to states' arguments along the above lines.

    There is a clear distinction however between arguments such as the ones I've offered above and any argument that's been used to support bans on marriage equality. The bright line should be that since we are neither asking for the right to marry where age of consent is an issue nor where consanguinity is an issue nor where the current marital status of one or both potential spouses is an issue, what possible valid justifications could there be for upholding those bans other than animus of the sort covered in the article you've linked to? The notion that marriage equality bans should be constitutional because they apply to heterosexuals and homosexuals equally is of course a fatuous one since only gay people are affected by it. We are, by our nation, inclined to form intimate relationships with persons of our own gender. Nobody can seriously argue that they are genetically or otherwise innately disposed to marry their cousin.

  • 56. Mike_Baltimore  |  April 17, 2015 at 10:20 am

    Actually, Mr. McClung WON in District Court, and the Supreme Court OVERTURNED the District Court's opinion.

    Therefore, SCOTUS did not affirm the District Court's opinion, but overturned it.

    Please look up Katzenbach v McClung.

  • 57. wes228  |  April 18, 2015 at 7:30 am

    I was confusing the case with Heart of Atlanta Motel v. United States, where the District Court did rule against the business.

    The only order in the text of Katzenbach v. McClung is that the judgment of the District Court is "reversed." Again, the Supreme Court did not issue any injunction directly against McClung.

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