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State defendants in Ohio marriage equality case oppose expedited appeal

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The state officials defending Ohio’s same-sex marriage ban against a narrow challenge involving recognition of same-sex marriages for purposes of a death certificate have filed a brief in the Sixth Circuit Court of Appeals opposing the request for an expedited briefing and argument schedule. The challengers to the ban had filed the request last week pointing to other appeals courts taking up the issue of same-sex marriage; in the Ninth and Tenth Circuits, requests for a fast-tracked appeal were granted.

While the state opposes the request, the brief ultimately suggests that were the Sixth Circuit to expedite the case, the state defendant, the director of the Ohio Department of Health, prefers “that his brief be filed 5 weeks after final certification of the trial court transcripts, with Plaintiffs-Appellees’ response to be filed 30 days thereafter, and Defendant-Appellant’s reply to be filed 2 weeks later.” The filing also notes that he “has no objection to expediting oral argument at a date that the Court finds appropriate.”

The brief takes issue with the comparisons to the Ninth and Tenth Circuit cases. The Ohio challenge does not “involve a situation where the district court agreed with the plaintiffs’ requested relief, but the plaintiffs had that relief stayed pending the outcome of the appellate process—thereby denying the plaintiffs their requested relief in the interim.” And they argue that since the plaintiffs have already received their requested relief pending the appeal, there’s no need for a quick resolution of the case. The brief argues that Wymyslo believes “that carefully briefing the issues presented in accordance with the Sixth Circuit’s standard schedule is more important than any speedy appellate relief from the district court’s erroneous final judgment.”

The case is Obergefell v. Wymyslo.

Thanks to Kathleen Perrin for this filing

For more information on Obergefell v. Wymyslo from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Rick O.  |  February 24, 2014 at 10:18 am

    I imagine the state will win this point. No doubt will be trumpeted by NOM as their sides biggest (only?) victory of 2014.

  • 2. Ragavendran  |  February 24, 2014 at 10:51 am

    The State, for once, actually makes a (partly) valid point in pointing out the differences between the other expedited appeals and this one. I too think they'll win, if the main persuading argument is that other circuit courts are accelerating the process.

    There is a subtle caveat though. At the precise moment that the 10th Circuit said they'll elevate Utah's appeal to a fast track, same-sex marriage was legal in Utah, and so, "plaintiffs DID NOT have their relief stayed". (The stay didn't happen until much later.) Therefore, the 10th Circuit's decision to expedite the Utah appeal was NOT due to plaintiffs' requested reliefs being denied to them. To the contrary, it was because a stay was denied and Utah threw a tantrum, kicking and screaming. I hope the legal team points this out in their response.

  • 3. davep  |  February 24, 2014 at 10:57 am

    Think of all the money NOM will be saving on confetti and balloons from now on.

  • 4. Ragavendran  |  February 24, 2014 at 11:43 am

    Off-topic, but I came across this today and felt compelled to share it, especially the prophetic remark he makes at the end of his (very) short speech:

  • 5. Rich  |  February 24, 2014 at 2:36 pm

    Thank you so much for sharing. I now will share this with my high school kids in our GSTA.

  • 6. Ragavendran  |  February 24, 2014 at 11:57 am

    Again, off-topic, but breaking news. A dark day in Uganda as President Museveni finally signs anti-gay bill into law:
    The video in this article clearly shows the ignorance of the President on the topic. He's accusing the West of "recruiting" Ugandan children, echoing Putin's similar "leave our children alone" statement.

    Do these kids (in the picture) even realize what they're supporting?

  • 7. davep  |  February 24, 2014 at 12:15 pm

    When the truth is that it was anti-gay extremists from the west, like Scott Lively, who went to Uganda and 'recruited' the people there as pawns in his efforts to spread hate and bigotry.

  • 8. Rich  |  February 24, 2014 at 2:42 pm

    This I will not share with my high school kids. They know about Uganda but they have their own, more localized concerns to address. We will talk about this but simply acknowledge that this kind of hate is best left to Presidents, the United Nations, world condemnation to call it out and condemn it. The sheer horror of this should not be visited on any gay child. We, the adults, are duty bound to quash this insidious and reprehensible national policy in whatever ways we can.

  • 9. Rick O.  |  February 25, 2014 at 5:42 am

    The Uganda law, and the very recent formation of an organization to export anti-equality, over-the-top "gays must be punished, homosexuality extinguished" here in the U.S. (attended by Lively and numerous leading lights in the homophobia, paid staff, community, which at least suggests they know their raison d'etre is almost kaput here at home) IS VERY TROUBLING. No doubt this organization will be "religious" and/or "educational", with donation income both anonymous and tax deductible. Meanwhile their ends are contrary to U.S. law, UN resolutions, and US foreign policy. I urge the Administration, specifically AG Holder and the IRS, to look for ways to discourage or stop this.

  • 10. Dave  |  February 24, 2014 at 1:15 pm

    A report from the New York Times regarding "Freedom Ohio" – the group that claims to have enough signatures to put marriage on the ballot in 2014. This story just gets more and more bizarre. They now say they won't decide whether to turn in the signatures until it is closer to the JULY deadline. July is just 4 months before election day. They will make their decision based on fundraising, and they have virtually no money right now. If these folks are telling the truth and decide to go forward, it has all the makings of a fiasco.

    EqualityOnTrial, you guys are supposed to do original reporting, no? Last year, you solicited and collected several thousands of dollars in donations for a trip to Washington DC to report in person on the Prop 8 arguments.

    Would it be too much to ask that one of you pick up the phone and interview Freedom Ohio and find out what is going on? Call these people and ask how they were able to gather an incredible 650,000 signatures with virtually no money and virtually no social media activity footprint. Ask them why they would not show the stacks of petitions to reporters. And ask how can they possibly think about going ahead with no money, no campaign infrastructure, opposition from every other marriage equality group and little time.

    Link to story below:

    "But the two-year-old Freedom Ohio does not want to wait. Mr. James, the executive director, said the group had gathered far more than the 386,000 signatures needed to put a measure on the ballot. It will make a final decision closer to the July 2 filing deadline, he said, taking fund-raising into consideration.He acknowledged that millions of dollars would be needed to counter opponents on television. The group’s latest campaign finance report showed only about $23,000 in the bank."

  • 11. Rich  |  February 24, 2014 at 2:53 pm

    Dave, I am somewhat reminded of an article that I read awhile back that there was a sham organization (Freedom Ohio?) that was seeking to thwart ME by subversively pushing for a ME referendum when they knew, full well, that it would force a vote too soon to be successful. Anyone else remember this?

  • 12. Sean from NJ  |  February 24, 2014 at 3:06 pm

    I thought that was in AZ.

  • 13. Dave  |  February 24, 2014 at 7:39 pm

    It was AZ. However, Freedom Ohio is definitely a real organization. They have been around for some years. They got the wording of the ballot measure approved in 2012. And they clearly have done some work circulating this petition. What I find hard to believe is that they were able to gather 650,000 signatures. That's a mammoth task and there would be more evidence of it. I don't see it. But at the same time, they keep making the claim to many different news organizations that they have all these signatures in the bank. So they are either one of the most efficient, low-key petitioning outfit in the US or they are pulling a massive troll.

  • 14. Stefan  |  February 24, 2014 at 3:20 pm

    I think it was in Florida.

  • 15. Pat  |  February 24, 2014 at 3:50 pm

    Wasnt it Arkansas?

  • 16. Rick O.  |  February 25, 2014 at 6:03 am

    Guess no one from ARIZONA and FLORIDA is reading EoT at the moment, but from what I remember those two states were targeted for a mysterious, out-of-the blue, ME ballot initiative effort late last year by new "groups". Turned out they were formed by (I may have the name wrong) Tim Moody, who was short on providing any details but described by the press as being a Republican consultant from Utah who had a hand in getting Utah's marriage ban passed a decade ago. His local leader of the AZ effort was interviewed – not too coherent – and self described as a middle aged single woman who had recently decided she might be lesbian and had gone to a "couple of lesbian meetings".
    NONE of the established LBGT rights groups in either state had been contacted in advance, and ALL refused to support. Both stealth efforts died, thankfully.
    In Colorado, well meaning, genuine, young students tried to get a ballot initiative going for this year (dicey). Fortunately our rights group, One Colorado, and our gay legislators, did not support 2014 bad timing and gently got it stopped. It would appear Freedom Ohio is a bigger, but not better prepared, version of the same, and some pros from HRC, etc., etc. need to give them advice and support. FYI – even in a small (5mm) state like Colorado, running a succesful campaign in 2016 is projected to cost $2mm – dollars in bank in advance.

  • 17. Josh  |  February 24, 2014 at 6:37 pm

    This is very interesting, but I hope we get a solid reporting job from whether this is a legitimate pro-equality group or not? You are all the best!

  • 18. Dave  |  February 24, 2014 at 8:05 pm

    A new Ohio poll is out from Quinnipiac. And it shows very starkly how insane it would be to put this up in 2014 and how promising it would be for 2016. Bottom line is that the poll shows support for SSM at 50-44. This would constitute a slight improvement over PPP's 2013 poll, very much in line with the kind of year-over-year increase in support predicted by Nate Silver. Based on past polling, it is prudent to allocate all or virtually all of the 6% undecided to the no column. Thus, it is a good bet that we are at or are just over 50 percent. By 2016, we would expect to add 2-3 points to that support.

    However – and this is the kicker – we absolutely depend upon voters 18-29 to get to an average level of support at or about 50 percent. That group supports us 71-28. When you go the next age group, 30-49, support drops to 52%. The 50-64s show support at 51%. Our problem comes with 65+, where support is only 33%.

    The only thing offsetting that elderly opposition and keeping us in striking range of a win is the 18-29s. So if you want to have a chance of winning the most important marriage fight since
    Prop 8, you would only go to the ballot at a time when they are most likely to come out to vote -2016. If we do this in a mid-term, when the electorate is stuffed with the 65+ and is missing our beloved Millennials, we will lose. So it all comes back to: does Freedom Ohio really have those signatures and are they stupid enough to trigger a losing fight now as opposed to a winnnig fight 24 months from now.

  • 19. Mike in Baltimore  |  February 24, 2014 at 10:20 pm

    Polls also show that at least a 7% difference between those for and those against ME are needed for ME to pass at the polls. We are now at 6%, thus even a 2% increase might be enough to get us 'over the top'.

    Best to wait for 2016, IMO. That would better ensure that the 18-29 cohort is at the polls, and much better ensures our possibility of a win becomes a probability.

  • 20. JayJonson  |  February 25, 2014 at 3:17 pm

    I am hoping that within a year Ohio will have marriage equality thanks to the federal courts and that we will be able to avoid the indignity of having our fundamental rights subjected to the whims of an often ill-educated electorate.

  • 21. bayareajohn  |  February 24, 2014 at 10:35 pm

    Two more years of Court wins and the sky not falling would certainly help reduce the fear-based opposition. And two years less of the older generation will be available to oppose us, and today's 16 and 17 year-olds will be voting on our side. And as we are seen more and more as a functioning visible part of society, the myths and lies have two more years to erode.

    We in California waited far longer to clear the up the mess of Prop 8. But we made it.

  • 22. Marriage Equality Round-U&hellip  |  February 25, 2014 at 7:24 am

    […] USA, Ohio: The state opposes a request by marriage equality case plaintiffs to expedite the case.full story […]

  • 23. Ragavendran  |  March 3, 2014 at 11:35 pm

    The State won this round. The 6th Circuit on Feb 26 DENIED the motion to expedite appeal, but nevertheless, has set a somewhat swift briefing schedule. Appellant brief is due by April 10, appellee response brief is due by May 13. An optional appellant reply brief is due 17 days from the date the appellee files their response.

    Here is the Plaintiffs' reply to the State's opposing response:

    Here is the order DENYING motion to expedite briefing schedule:

    Here is the letter detailing the (normal) briefing schedule:

  • 24. Equality On TrialOhio mar&hellip  |  August 7, 2014 at 12:44 am

    […] denied a request by the plaintiffs in Obergefell v. Wymyslo to expedite the appeal; the request was opposed by state officials defending the ban. The court noted only that “[t]he usual briefing schedule shall […]

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