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BREAKING: Federal judge invalidates Texas’s marriage equality ban

LGBT Legal Cases Marriage equality Marriage Equality Trials

Texas state sealJust two weeks to the day after hearing oral arguments in a case brought by two Texas couples challenging the state’s marriage equality ban, U.S. District Judge Orlando Garcia has issued a preliminary injunction striking down the law as unconstitutional, although he stayed his decision pending appeal.  From the judge’s ruling:

“The issue before this court is whether Texas’ current definition of marriage is permissible under the United States Constitution.  After careful consideration, and applying the laws as it must, the Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process. Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas’ bans on same-sex marriage.”

“Today’s Court decision is not made in defiance of the great people of Texas or the Legislature, but in compliance with the United States Constitution and Supreme Court precedent.  These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex.”

In his decision, Garcia wrote that the plaintiffs’ arguments that Texas’s law should be considered under the more searching form of judicial review known as heightened scrutiny were “compelling” and “show[ed] an increased likelihood they will ultimately prevail on the merits.”  However, absent clear instructions from either the Fifth Circuit Court of Appeals or the U.S. Supreme Court to apply the heightened scrutiny standard, Garcia wrote, “the Court finds it is not necessary to apply heightened scrutiny to Plaintiffs’ equal protection claim since Texas’ ban on same-sex marriage fails even under the most deferential rational basis level of review.”

Garcia also explicitly ruled that Texas’s refusal to recognize same-sex couples’ out-of-state marriages also lacks rational basis, holding that “all Plaintiffs have established a likelihood of prevailing on the merits of their due process challenge to Texas’ ban on same-sex marriage.”

At the end of his decision, Judge Garcia wrote that his decision will be stayed pending the final results of any appeal to the Fifth Circuit or the U.S. Supreme Court.  In support of his decision, Garcia pointed to the Supreme Court’s stay of the district court’s ruling in Herbert v. Kitchen, a marriage equality suit out of Utah.

Garcia is the sixth judge to strike down a state law limiting marriage to opposite-sex couples since the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act last June.  The other states whose bans have been invalidated–but which are still in effect pending appeals–are Utah, Ohio, Oklahoma, Kentucky and Virginia.  All five of those cases have been appealed, and an older case out of Nevada is currently being appealed, which means that four circuit courts–the Fourth Circuit, Sixth Circuit, Ninth Circuit and Tenth Circuit–will issue decisions on marriage equality in the near future.

For more information on De Leon v. Perry from The Civil Rights Litigation Clearinghouse, click here.

You can read the judge’s full decision below, via Scribd.  H/t to Kathleen and Equality Case Files.

[scribd id=209421264 key=key-2gsk2i18p4jk2toctzdb mode=scroll]


  • 1. Bruno71  |  February 26, 2014 at 12:20 pm

    We are batting a thousand (in federal courts) since Windsor. Could the 5th Circuit possibly uphold this ruling too?

  • 2. Zack12  |  February 26, 2014 at 12:21 pm

    This means gay marriage will be ending up at the Supreme Court sooner versus later.
    There is no way the 5th circuit is going to rule in our favor(if they do I'll pass out), which means even if the other circuits rule in our favor we will have our split.

  • 3. Bruno71  |  February 26, 2014 at 12:23 pm

    Remember that there technically already is a ruling against us out of Nebraska in the Bruning Case in 2006. Whether or not it "counts" is another matter I guess.

  • 4. Ragavendran  |  February 26, 2014 at 12:27 pm

    I'm not a lawyer but I think it likely doesn't "count" first because its been 7 years, pre-Windsor, and second because the plaintiffs never appealed and it didn't reach SCOTUS. I'm not sure whether appeals must reach SCOTUS for it to "legally" recognize a split.

  • 5. John  |  February 26, 2014 at 12:49 pm

    Both decisions don't have to be appealed to the Supreme Court for SCOTUS to recognize a split. At the end of a day, the split doesn't exist until the second decision comes down and is different than the other one. At that time, the argument can be made that there's conflict between the circuits.

    For this issue, I think the Supreme Court was merely waiting for a shift in the narrative, to avoid getting to far ahead of the public. So I'd wager that a split won't be necessary to get a ruling out of the Supreme Court (indeed, I'm not sure there was a circuit split when it came to DOMA, though I could be forgetting a case).

    And no, I don't think Bruning really matters anymore being decided pre-Windsor. You don't see too many references to it in these opinions.

  • 6. Bruno71  |  February 26, 2014 at 12:56 pm

    My feeling at this stage is that the 5 judges who voted as a group on Windsor primarily want to control the timing of the judgment (though Kennedy and Sotomayor may not be as concerned with this as the others). Circuit splits and rulings be damned, they'll take a case when they feel "the country is ready." It's only if the conservative justices decide to bring a case sooner that the "percolation" sector of the court may not get to dictate the pace of the issue.

  • 7. John  |  February 26, 2014 at 1:17 pm

    Yup. Justice Ginsburg says that she felt Roe v. Wade was done too early, which created backlash and the enduring pro-life movement. They're trying to avoid that this time. Thankfully, doesn't look like we're going to have to wait much longer for the country to be ready. I think we'll have full marriage equality before the next Presidential election.

  • 8. Sean from NJ  |  February 26, 2014 at 3:56 pm

    I've always maintain that she is dead wrong in comparing SSM to abortion. Public opinion on abortion is a whole lot stronger than marriage. Even the religious wingnuts that vehemently hates us do not refer to same-sex couples who love each other and want to marry as murderers. All Ginburg's "go-so" approach is doing is holding back the enverable while prolonging our suffering.

  • 9. skrekk  |  February 26, 2014 at 8:13 pm

    I think Ginsburg is not only flat wrong but picked the wrong analogy. The 72% public opposition to mixed-race marriage in 1967 would have been a better parallel, and today the majority of the public already supports marriage equality. On mixed-race marriage it took another 25 years before a bare majority did. And yet the court ruled for equality in 1967 because it was the right thing to do, not because the public supported that ruling.

  • 10. Bruno71  |  February 26, 2014 at 4:00 pm

    I respect where she's coming from, and a few years ago this was a bit of an unknown in terms of the level of vehemence in right-wing reaction. But it should be obvious by now that no riots are afoot, and their movement is skidding off the road rather than gaining fuel through reaction.

  • 11. StraightDave  |  February 26, 2014 at 2:37 pm

    With all these rulings in rapid fashion, I haven't noticed any great uprisings in protest across the country. It's been mostly limited to right-fringe politicians, the usual nutbags, or obedient GOP Governors. The silence is deafening… the same thing SCOTUS is going to hear. As they kept saying in Scotland, "It's Time!"

  • 12. Sean from NJ  |  February 26, 2014 at 3:59 pm

    I think the fact that elections are upcoming this year is keeping a lot of the rhetoric to a minimum. Republicans don't want to alienate independent voters.

  • 13. Kevin  |  February 26, 2014 at 9:45 pm

    Yes, we have all heard RBG discuss the prematurity of Roe, but I think the SCOTUS will correctly view the impressive number of district court wins as evidence in and of itself that the country is 'ready' for SSM in all 50 states. I read SCOTUSBlog, Lexology, JD Supra and Volokh every day and think there is a near universal consensus that the court will have to take a SSM case in the 2014-2015 term.

  • 14. StraightDave  |  February 26, 2014 at 12:32 pm

    By the time they get their turn, the 5th Circuit is going to have to shield its eyes from a pretty large mountain of evidence, precedent, and persuasion. Even as skeptical as I am, that will be a tall order.

  • 15. Kevin  |  February 26, 2014 at 2:01 pm

    There is already a circuit split. The amendment at issue in Bruning received rational basis review. The Ninth Circuit now applies heightened scrutiny after SmithKline v. Abbott.

  • 16. Matt Rogers  |  February 26, 2014 at 6:17 pm

    Bruning was based on Baker v. Nelson (1972), wasn't it? If I recall, the Ninth specifically rejected Baker in SmithKine v. Abbott.

  • 17. Kevin  |  February 26, 2014 at 9:52 pm

    "Though the most relevant precedents are murky, we conclude for a number of reasons that § 29 should receive rational-basis review under the Equal Protection Clause, rather than a heightened level of judicial scrutiny." 455 F.3d 889, 866 (8th Cir. 2006).

    Baker is not addressed in SmithKline, specifically or otherwise.

  • 18. Seth From Maryland  |  February 26, 2014 at 12:26 pm

    what's the 5th circuit made up like, is it really conservative?

  • 19. Bruno71  |  February 26, 2014 at 12:35 pm

    It may be slightly to the right of Attila the Hun.

  • 20. Seth From Maryland  |  February 26, 2014 at 12:43 pm


  • 21. Rik  |  February 26, 2014 at 4:12 pm

    Funny, that's how my father describes himself politically.

  • 22. Steve  |  February 26, 2014 at 1:11 pm

    Mississippi, Texas and Louisiana. You can't get much more backwards than that.

  • 23. JayJonson  |  February 26, 2014 at 1:33 pm

    Isn't Arkansas in the 5th? In any case, it is an extremely backward circuit with a number of very vindictive and nasty judges, including the notorious Edith Jones. (I think, however, she may be suspended for the moment for some kind of nefarious breach of judicial demeanor.)

  • 24. FYoung  |  February 26, 2014 at 2:31 pm

    No, Arkansas is in the 8th:

  • 25. JayJonson  |  February 26, 2014 at 3:22 pm

    Thanks for the clarification.

  • 26. AndyInCA  |  February 26, 2014 at 1:17 pm

    Pretty conservative. 10 Republican appointees (6 by W!!), 4 Democrat appointees:

  • 27. Mark  |  February 26, 2014 at 8:53 pm

    "Democratic" appointees.

  • 28. Rick O.  |  February 26, 2014 at 2:59 pm

    Think the N.O. courthouse has those jockey hitching post statues out front. Most people in the 5th do not believe in evolution and are busy proving their point.

  • 29. davep  |  February 26, 2014 at 12:41 pm

    Oh. Em. Gee.


    This is amazing.

  • 30. Seth From Maryland  |  February 26, 2014 at 12:42 pm

    there are 17th judges active right now with 3 spots vacant, all of the judges of except 4 are coservatives apointed by Bush or Regan , the other 4 have appointed by Obama and Clinton, the Chief Judge Carl E. Stewart is a Clinton pick so we might get lucky if get him in the appeal panel

  • 31. Seth From Maryland  |  February 26, 2014 at 12:47 pm

    we also might lucky if we can those 3 spots filled in time and by luck of the draw get a few libertarian judges panel as well

  • 32. Mackenzie  |  February 26, 2014 at 12:58 pm

    Don't let us forget, some of these Regan/Bush appointed conservative appointees have handed us our victories.

  • 33. Seth From Maryland  |  February 26, 2014 at 1:10 pm

    exactly, this might actually work out better for us then many think

  • 34. JayJonson  |  February 26, 2014 at 1:34 pm

    Yes, but the judges from the 5th circuit are neither ethical nor committed to following SCOTUS precedent.

  • 35. David in London  |  February 26, 2014 at 12:51 pm

    Wow. First Utah, now Texas. This is really gathering pace. I know there's a long way to go and all, but Congrats guys.

  • 36. Norman  |  February 26, 2014 at 12:53 pm

    There will likely be “split” decisions before this case is even considered by the 5th Circuit as there are several more cases pending in Texas. Judge Garcia is a Clinton appointee who is also the brother-in-law of state Senator Leticia Van de Putte, the Democratic candidate for Lt. Governor.

    Next up is a marriage lawsuit before a G. H. W. Bush appointee in Austin where our side is less favored before the end of the year.

    The 5th Circuit is very conservative. It regularly rules against reproductive rights, and ICE prefers to hold detainees in Texas often thousands of miles away from families and lawyers because the court routinely rules against immigrants.

  • 37. griffcipp  |  February 26, 2014 at 1:01 pm

    Re: Marriage equality comes to Central Illinois

    Minutes ago, Champaign County Clerk Gordy Hulten became the second county clerk in Illinois to issue marriage licenses to all loving, committed couples. Equality Illinois is challenging other clerks throughout the state to do the same.

    Hulten made the decision in the wake of the ruling by U.S.District Court last week in Chicago that marriage equality is a fundamental right and denying immediate access to it is unconstitutional.

    Clerk Hulten recognized both the humanity of helping gay and lesbian couples to fulfill their dreams and the legal soundness of following the decision of a federal court that denying marriage licenses was unconstitutional

    As we saw in the immediate rush to the Cook County Clerk's marriage bureau after Friday's ruling, gay and lesbian couples are eager and ready to take the step that not only grants them and their family the legal benefits and rights of marriage but also bestows society's recognition that their love is equal.

    It is also significant that the licenses are now available in a Central Illinois county, which is within easy driving distance of not only Champaign-Urbana but also Peoria, Decatur, Springfield, Bloomington-Normal and Danville for couples and their families. While we were thrilled with Friday's ruling that applied to Cook County, this is a major step that instantly spreads marriage equality to another major region of the state. We are working with more county clerks to help them step up.

    The Champaign County Clerk's office is at 1776 E. Washington Street, Urbana, Illinois. The website is….

    With the swiftness of the developments, there are many questions about obtaining a marriage license in Illinois. The Equality Illinois guide "Marriage Rights in Illinois" helps answer them. It can be read and downloaded here:….

  • 38. AndyInCA  |  February 26, 2014 at 1:09 pm

    Another ME ruling that cites Scalia's dissents:

    Page 27:
    However, procreation is not and has never been a qualification for marriage.
    Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ("[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation since the sterile and elderly are allowed to marry.");

    Page 29:
    However, tradition, alone, cannot form a rational basis for a law. See Lawrence,
    539 U.S. at 602 (Scalia, J., dissenting) ("Preserving the traditional institution of marriage. . . is just a kinder way of describing the State's moral disapproval of same-sex couples," which, in turn, is not a legitimate reason);

    Ahh the poetic justice!

  • 39. Ragavendran  |  February 26, 2014 at 1:36 pm

    True, but not Scalia's Windsor dissent, which almost everyone else has jabbed at. Perhaps he decided to give it a break!

  • 40. Ragavendran  |  February 26, 2014 at 1:21 pm

    This judge has clearly written this opinion with the 5th Circuit in mind. He uses very little of his own words. The entire document is peppered with elaborate quotations and references to the other post-Windsor district court rulings, Windsor itself, 2nd Circuit and 9th Circuit (Windsor, Smithkline, High Tech Gays, etc.) It will be lucky if we get two Obama/Clinton appointees from the random selection process to hear the appeal. But even if we don't, this opinion, I think, seeks to smother and suffocate even the most conservative of judges with evidence supporting his decision.

  • 41. Straight Ally #3008  |  February 26, 2014 at 1:29 pm

    Amazing. So Michigan (DeBoer v. Sndyer) is in progress, Oregon (Geiger v. Kitzhaber combined with Rummel and West v. Kitzhaber) starts April 23l, Pennsylvania (Whitehead v. Woolf) starts June 9. Am I missing any others in that time frame?

  • 42. Pat  |  February 26, 2014 at 1:57 pm

    I think the Utah and Oklahoma cases are appealed in the 10th Circuit in April.
    But there STILL is bo date set for the 9th circuit appeal of the Nevada case, is that right?

  • 43. Pat  |  February 26, 2014 at 1:59 pm

    * "NO" date

  • 44. Kevin  |  February 26, 2014 at 2:04 pm


  • 45. JustMe  |  February 26, 2014 at 2:01 pm

    So lets see, now we have a federal judge ruling the exact opposite of a state appeals court… hmmm i wonder who is going to win?

    We have parallel court systems with one ruling it doesnt violate the EP and DP clauses and one ruling it does.

    How can both be honored?

  • 46. Mike in Baltimore  |  February 26, 2014 at 3:18 pm

    Article VI, Section 2.

    THAT is how one is honored, and one discarded. And it is the Federal decision that is honored.

  • 47. JustMe  |  February 26, 2014 at 7:28 pm

    You're incorrect.

    State judges when they make decisions concerning federal law, bind the federal courts. Federal courts only bind the federal courts, they do not bind the state courts.

    See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon the precedents of the Fifth Circuit . . . in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”)

    Here we have the decision in Marriage of J.B. :

    "The Equal Protection Clause provides, “No State shall ․ deny to any person within its jurisdiction the equal protection of the laws.”   U.S. Const. amend.   XIV, § 1. It is “essentially a direction that all persons similarly situated should be treated alike.”  City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).   On the other hand, “the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”  Romer v. Evans, 517 U.S. 620, 631 (1996).   Consequently, disparate treatment of different but similarly situated groups does not automatically violate equal protection.  Dallas Transit Sys. v. Mann, 750 S.W.2d 287, 291 (Tex.App.-Dallas 1988, no writ).   To reconcile the equal-protection principle with practical necessity, the Court has developed differing levels of judicial scrutiny depending on the kind of classification at issue, which we analyze below.   First, however, we address the State's contention that the equal-protection issue has already been squarely decided by the United States Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972).   Ultimately, we conclude that Texas law does not violate equal protection."

    Further, they ruled:

    "We conclude that homosexuals are not a suspect class, that persons who choose to marry persons of the same sex are not a suspect class, and that the Texas law at issue in this case does not discriminate against a suspect class."


    "We agree with the numerous courts that have held that the right to legal recognition of a same-sex marriage is not a fundamental right for equal-protection purposes."

    "We next consider whether Texas's marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples.   We conclude that they are.   Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. "

    So the State Appellate Court has already ruled that the law does NOT violate the 14th amendment.

    Now its on like Donkey Kong!

  • 48. Rick O.  |  February 26, 2014 at 8:18 pm

    Nice try, but not the whole story.

  • 49. skrekk  |  February 26, 2014 at 8:20 pm

    >>>>"So the State Appellate Court has already ruled that the law does NOT violate the 14th amendment. "<<<<

    The federal courts don't give a crap about the state court's interpretation of the US constitution.

  • 50. Straight Ally #3008  |  February 26, 2014 at 8:37 pm

    In the end, equality wins, 5-4.

  • 51. Kevin  |  February 26, 2014 at 9:54 pm

    LOL. That is so hilariously wrong. This is what happens when the untrained have access to

  • 52. Kevin  |  February 26, 2014 at 10:21 pm


    I find it so interesting that a state court could bind the federal judiciary simply by expounding on the United States Constitution! What a novel reading of the Supremacy Clause. But you sound so cogent, I'm positive this must be what the framers intended.

    Pray tell, when a California court sitting in the 2nd district rules on an Eighth Amendment issue, which district courts does it bind? All of them? Just the ones in California? Or just federal district (because obviously these boundaries do not coincide) in which the court happens to be?

    I'm asking because a lot of prisoners are going to want to know this. The Supreme Court has been awfully hostile to the Fourth Amendment in recent decades, overturning a lot of State court decisions. Little did we know that these were all invalid since state court decisions on the United States Constitution are dispositive!

  • 53. JustMe  |  February 27, 2014 at 2:13 am

    When a state court makes a decision on whether a search violates the 4th amendment, you cant subsequently go into federal court and file a suit against the state and argue that the search was unconstitutional.

    Thus a state courts ruling precludes the same suit in the federal system.

  • 54. Ragavendran  |  February 27, 2014 at 10:09 am

    Yes, you cannot appeal against state courts in a federal court, other than the US Supreme Court, but that doesn't mean state courts bind federal courts! Your logic is flawed.

    And I can't think of any reason why you can't file a similar suit in a federal court too, and that court can rule it's own way (because state courts don't bind it).

  • 55. Guest  |  February 27, 2014 at 8:17 pm

    No Ragavendran, that is incorrect. Cases of criminals turning to federal courts when their state court remedies have been exhausted are abundant!

  • 56. Ragavendran  |  February 27, 2014 at 8:20 pm

    "Turning to federal court" means filing the same suit again in federal court. Not appealing a state court's decision in federal court. There is a difference.

  • 57. Guest  |  February 27, 2014 at 8:23 pm

    There is no practical difference and since I am a lawyer I feel comfortable pointing you to something like Doody v. Ryan, which went to the 9th circuit after the defendant (accused of murder) lost his Miranda argument in the Arizona courts. Sure, the result of a successful outcome for the defendant (issuance of the writ) is not a reversal of the state court, but it is still a get out of jail free card AND it is the establishment of binding precedent if it makes its way to the circuit level.

  • 58. Ragavendran  |  February 27, 2014 at 8:38 pm

    I am not a lawyer, and I do not wish to argue whether there is a "practical difference" or not. I was merely speaking to the fact that federal courts, except the Supreme Court, do not bind state courts. See People v. Leonard, where the California Supreme Court wrote "decisions of the federal circuit courts are not binding on us." I was responding to the part of JustMe's comment that "you can't subsequently go to federal court and file a suit against the state", which I concurred with. And I did point out in the second part of my comment, supporting your view:
    "And I can't think of any reason why you can't file a similar suit in a federal court too, and that court can rule it's own way (because state courts don't bind it)."

    I am inclined to put down our respectful disagreement to technicality and wording, and will no longer continue this discussion.

  • 59. Guest  |  February 27, 2014 at 11:08 pm

    You should do that. Because you are not a lawyer.

  • 60. Lee  |  February 28, 2014 at 4:54 am

    @Guest That was uncalled for.

  • 61. Kevin  |  February 27, 2014 at 4:58 pm

    That's kind of hilarious because that's exactly what you do. It's called a writ of habeas corpus. It's a collateral attack on a state court decision concerning a violation of the bill of rights.

  • 62. JayJonson  |  February 27, 2014 at 12:17 pm

    I think JustMe attended the Brigham Young Law School. Or maybe the Bob Jones School of Law.

  • 63. John  |  February 26, 2014 at 10:32 pm

    Your quote doesn't say what you seem to think it does. All it says is that state courts, when considering federal issues, are bound only by higher state courts and the US Supreme Court–and not by the federal appellate court in that district.

    Federal courts are not bound by state courts' interpretations of federal law.

  • 64. Ragavendran  |  February 26, 2014 at 10:43 pm

    JustMe is partly correct. A simple google search for the question "do federal courts bind state courts" leads to multiple links and sources which all concur that the ONLY federal court that can bind state courts is the US Supreme Court, and that too, only on matters involving federal law. All other federal courts are persuasive, not mandatory.

    Where JustMe is wrong, is in stating that state courts bind federal courts in matters of federal law. This part is incorrect. Page 4 (and Page 5 with the table) of this document is a very good resource:

    The key points are:
    (1) Higher courts bind lower courts within their own state/circuit in each system (state/federal).
    (2) Federal courts (usually) bind only federal courts (exception: the US Supreme Court on issues of federal law) and state courts (usually) bind only state courts (exception: the Erie doctrine)
    (3) Federal courts bind other federal courts only when they interpret and apply federal law. State courts bind other state courts only when they interpret and apply state law.

    Details on the exceptions:
    "Sometimes a federal court must apply a state’s law. In that case, the state’s interpretation of that law is mandatory on the federal court. Even so, the federal court can still decide whether the state’s interpretation is consistent with federal law. Similarly, state courts must sometimes decide issues of federal law, but they are not bound by federal courts except the U.S. Supreme Court. The U.S. Supreme Court, a federal court, is mandatory on state courts when it decides an issue of federal law, such as Constitutional interpretation. Other federal courts—district and appellate—are not mandatory on state courts."

    So it is entirely possible that, for example, the 9th Circuit Court of Appeals and the California Supreme Court can disagree on interpreting federal law. Neither binds the other. The ultimate arbiter of such a disagreement would be the US Supreme Court.

  • 65. JustMe  |  February 27, 2014 at 2:14 am

    See my comment above re: 4th amendment searches.

  • 66. Guest  |  February 27, 2014 at 5:00 pm

    JustMe is a troll with a search engine. Paying him/her/it any credit is too much.

  • 67. Lee  |  February 28, 2014 at 4:52 am

    lol The kettle calling the pot black

  • 68. Bruno71  |  February 27, 2014 at 10:08 am

    "Federal courts only bind the federal courts, they do not bind the state courts. "

    The Supreme Court of the United States is a) a federal court and b) a court that can bind any state Supreme Court.

  • 69. Kevin  |  February 27, 2014 at 5:01 pm

    A court that can bind any state court in re the US Constitution. State Courts are the final arbiters of the meaning of their own constitutions, so long as those constructions do not conflict with the US Constitution.

  • 70. Ragavendran  |  February 26, 2014 at 10:55 pm

    Not completely true, Mike. See my replies to JustMe's comments above and below.

  • 71. Ragavendran  |  February 26, 2014 at 11:00 pm

    When a state court and federal court (other than US Supreme Court) disagree on interpretation of federal law, neither decision is mandatory authority on the other. The US Supreme Court will have the final say. The Supremacy clause of Article 6 of the US Constitution is sometimes wrongly interpreted to imply that federal courts bind state courts on issues of federal law. Not so. The Supremacy clause only implies that state courts must follow federal law, but that doesn't necessarily mean that it is bound by another federal court's interpretation of federal law (the exception is the US Supreme Court).

    A related concept is the Rooker–Feldman doctrine, where the US Supreme Court first said that no federal court other than the US Supreme Court can sit in direct review of state court decisions, unless Congress has specifically authorized such relief. Although, its power has steadily been diluted by the US Supreme Court over the years.

  • 72. Kevin  |  February 26, 2014 at 2:53 pm


    Washington, D.C. — The National Organization for Marriage (NOM) expressed deep disappointment and anger today at news of a ruling by Texas federal court judge Orlando Garcia that Texas's amendment in defense of marriage is somehow unconstitutional. While the judge immediately stayed his ruling pending appeals, NOM's President said that this ruling evinces a profoundly disturbing trend of judicial activism.

    "We've seen a rash of these rulings in recent weeks, all making the same errors about binding Supreme Court precedents relevant to marriage and all issued by activist judges bound and determined to redefine marriage in defiance of thousands of years of human experience," said Brian Brown, NOM President. "These egregious decisions by unelected judges throwing out the votes of millions of Americans have been shamefully encouraged, aided, and abetted by the lawless actions of President Obama and his administration, especially the Attorney General. It simply has to stop. Critical issues like marriage that are foundational to civilization cannot be permitted to be taken over by activist judges and out of control political appointees. The voices and values of ordinary citizens are being trampled by judges determined to impose profound social change that affects citizens in the deepest and most fundamental ways. The American people, and our leaders in Congress, need to step up and restore the powers of government to their proper balance."

    Brown said that this decision was a further signal of the near certainty that the question of marriage would return before the bench of the U.S. Supreme Court before long. He expressed hope that the Court, in that event, would hold to its own logic in the 2013 Windsor decision and affirm states' rights to determine marriage for themselves. However, Brown stressed the need for Congress to act decisively with respect to marriage by passing an amendment to the Federal Constitution.

    "Congress needs to send a federal marriage amendment to the states for ratification and put an end to this mockery of government," said Brown. "From the President to the Attorney General, to activist federal judges around the nation and even to some state attorneys general and governors in the various states, we're seeing a shameful lack of integrity and an utter rebellion against the rule of law and the sovereign rights of the American people. Power needs to be returned to the American people to uphold the right of the people to define marriage as the union of one man and one woman."

  • 73. Rick O.  |  February 26, 2014 at 4:09 pm

    Well, Brian Brown hasn't quite held his breath till he turns blue, but if appealing to a super majority of Congress is the only card he's holding, he's lost the game. I'm amazed the religious "freedom" bills are falling all over the place, too. Wonder if we'll see the Texas secession movement start up again, which will no doubt be greeted, once again, with "don't let the screen door hit you on your way out". I hear Uganda is lovely this time of year.

  • 74. Kevin  |  February 26, 2014 at 5:15 pm

    I mean, alllllll the judges can't be activist right??

  • 75. John  |  February 26, 2014 at 8:06 pm

    Have they had a single piece of good news since the Prop 8 and DOMA decisions came down?

  • 76. Mike in Baltimore  |  February 26, 2014 at 9:07 pm

    If I remember correctly, the last piece of good news (besides the bigot 'religious freedom' bills being introduced in state legislatures) was the NC election results. And that was almost two months prior to when the Prop H8 and Windsor decisions were handed down. With ME, a month is a long, long, long time. Just in the last month, we've had courts in Virginia and Texas (did I miss any?) rule their state constitutional amendments and associated laws to not be in accordance with the US Constitution.

  • 77. bythesea  |  February 26, 2014 at 11:19 pm

    And KY & OH…

  • 78. Mike in Baltimore  |  February 27, 2014 at 11:52 am

    I was speaking ONLY of the last month. I originally was going to include Kentucky and Ohio, but tightened the time frame to one month. The decisions I knew about in Kentucky and Ohio fell outside that one month time frame.

    In Ohio, the last court decision I can find was issued on December 13, a bit over 2 months ago. Has there been one since? If so, what was the case?

    In Kentucky, Judge Heyburn's 'final' court ruling that Kentucky must honor all legal (where conducted) out of state marriages came down AFTER I posted the above. (The ruling was handed down during business hours on February 27, 2014. My posting was hours prior to that decision.) And the judge's 'final' ruling did not affect ME of in-state marriages, only out of state marriages, unlike the decisions in Virginia and Texas.

    So, technically Kentucky was within the last month, but the ruling was not known at the time of my writing the above post. And unless evidence is provided to show differently, the last court ruling in Ohio I know about was more than one month (actually more than two months) ago.

  • 79. Pat  |  February 27, 2014 at 12:03 am

    You forgot, they had SCOTUS grant a STAY in the Utah case!! Yay!

  • 80. Mike in Baltimore  |  February 27, 2014 at 11:57 am

    Actually, the SCOTUS stay STOPPED marriages in Utah. I don't really count that as a victory. You may, but I don't.

    And additionally, when SCOTUS issued that stay on January 6, it was more than one month ago. The time frame I posted was within the last month.

  • 81. StraightDave  |  February 27, 2014 at 5:18 pm

    All that stay did was put a tourniquet on a dead man to stop his bleeding.
    so what

  • 82. Michael Grabow  |  February 27, 2014 at 6:43 am

    "by judges determined to impose profound social change that affects citizens in the deepest and most fundamental ways."

    Absolutely KILLS me. If this man could name ONE way that marriage equality negatively impacts citizens, I would fall over.

  • 83. StraightDave  |  February 27, 2014 at 5:23 pm

    He didn't say "negative". He must mean how it affects SS couples "in the deepest and most fundamental ways". Don't have to change a word and I totally agree with him.

  • 84. davep  |  February 26, 2014 at 3:40 pm

    "He expressed hope that the Court, in that event, would hold to its own logic in the 2013 Windsor decision and affirm states' rights to determine marriage for themselves"…. So he's still just a big ol' liar. Because the 2013 Windsor decision said the states have a right to determine marriage laws for themselves AS LONG AS THOSE LAWS DO NOT VIOLATE THE U.S. CONSITUTION. And that's exactly what anti-ssm laws do.

  • 85. Larry  |  February 26, 2014 at 3:45 pm

    What's the deal with this Merritt v Attorney General case out of Louisiana? The judge references it on page 17. Apparently someone in a mental hospital sued to strike down Louisiana's laws against same-sex marriage, and the court ruled that Louisiana's laws ARE constitutional.

  • 86. Kevin  |  February 26, 2014 at 5:20 pm

    Here is the Plaintiff's response to the Merritt ruling:

    Some translation: this was a state court case (not federal) in LA where a mental patient represented himself (pro se) in an action with no briefing, where most of the defendants had immunity, and where facts were not alleged against the remaining defendant.

  • 87. Kevin  |  February 26, 2014 at 5:22 pm

    It's actually pretty telling how much this Judge trusted plaintiffs' attorneys because he cut and pasted this language directly into his opinion.

  • 88. bayareajohn  |  February 26, 2014 at 5:27 pm

    A messy case, unclear what part of it was intended as precedent, and quite outdated by WINDSOR.

    In Merritt, the court considered a pro-se, in form a pauperis plaintiff’s lawsuit challenging Louisiana’s ban on same sex marriages. The plaintiff was a detainee at the East Louisiana Mental Health System Forensic Unit. Following a show-cause order, and no briefing, the court dismissed the plaintiff’s complaint because the “the Constitution does not require States to permit same-sex marriages;” the unidentified state legislators named as defendants were “entitled to absolute immunity from liability under § 19 83 for their legislative activities;” and the plaintiff failed to allege any facts against the remaining defendant, the Attorney General. The court did not indicate which one of these bases it rested its ruling upon.

  • 89. Guest  |  February 26, 2014 at 10:24 pm

    Merritt is 5 months post-Windsor.

  • 90. bayareajohn  |  February 26, 2014 at 11:06 pm

    Oops! Yep, I was looking at the Baker date (1972). Merritt was presented as support for the BAKER position that the Court is precluded from considering the matter, which certainly is a sketchy citation post-Windsor.

  • 91. grod  |  February 27, 2014 at 7:42 am

    How has this case gone unnoticed since last November? Obviously not by Judge O Garcia who treats it lightly.

  • 92. Kevin  |  February 27, 2014 at 5:06 pm

    Because it's not a "case" in the way we think of it. It was a pro se in forma pauperis claim with no briefing and maybe a simple hearing. Not every filing in state court rises to the level of a precedential decision 😀 Happens all the time.

  • 93. MNbob  |  February 26, 2014 at 4:17 pm

    "NOM's President said that this ruling evinces a profoundly disturbing trend of judicial activism. "

    you mean like virtually every ruling against nom?

  • 94. Rik  |  February 26, 2014 at 4:20 pm

    Tim to update the map color!

  • 95. Rich  |  February 26, 2014 at 4:36 pm

    IMO, this decision and (almost) more importantly, the tidal wave of blowback against Arizona are the tipping point in our struggle for ME. The Arizona blowback, however, is the true deal-breaker. What we are seeing is a huge consensus of corporate, individual, political and even religious agreement that this bill is discrimination clear and simple but the truly overwhelming result is that the discrimination is seen to be specifically against gays and lesbians. In some ways what we are witnessing is a national referendum on equality and bigotry and my take is that bigotry against gays is taking a stake to its heart. Religious fanatics wanted a state by state firewall. Arizona is their Waterloo.
    3 • Reply•Share ›

  • 96. JayJonson  |  February 26, 2014 at 4:53 pm

    Brewer just announced that she has vetoed the bill. I think you are right that the blowback against it marks a real turning point!

  • 97. Bruno71  |  February 26, 2014 at 5:03 pm

    I'd tend to agree. The backlash against the bill has far surpassed anything I could have imagined. After the whole "Duck Dynasty" stupidity, it's nice to see that Americans emphatically do not tolerate this kind of institutionalized pass on discrimination.

  • 98. JimT  |  February 26, 2014 at 5:33 pm

    The right wing will continue to push similar laws in other states and their anti-gay agendas just as they have done in the pro life movements that have created barriers to women’s reproductive rights.

  • 99. Fr. Bill  |  February 26, 2014 at 6:05 pm

    Let us remember that much of pre-Civil War racism,late 19th and early 20th century misogyny denying women the vote, and the racism behind anti-miscegenation marriage laws were greatly based on "sincerely held religious convictions."

  • 100. Josh  |  February 26, 2014 at 6:43 pm

    Where are the "sincerely held religious convictions" when it comes to providing goods and services to non-Biblically approved divorcees and unwed fathers and mothers? By selling to them they supported, condoned and encouraged others to join in those sinful lifestyles. Oh wait, maybe that's only if they sell to gay people who want to enter a legal commitment to each other, for better and for worse.

    The only people who will avoid marriage once gay couples gain equality are immature bigots. Like a brat who suddenly won't go to the movies since her younger sister gets to go too. Silly petty children.

  • 101. MIke_in_Houston  |  February 27, 2014 at 1:51 am

    Yes, the folks who think there cannot be "haves" unless there are "have nots."

  • 102. Rick O.  |  February 26, 2014 at 8:28 pm

    Beside the fact the AZ bill was so broadly written the unintended consequences would be enormous, I knew it was doomed the minute the word "Superbowl" with a question mark was uttered.

  • 103. davep  |  February 27, 2014 at 9:37 am

    There was a really great segment on the Daily Show last night about the Nevada bill. Jon Stewart was pointing out how, even when republicans have spoken out against this bill, it's because either they don't want OTHER people with different religious views to us it against THEM, or they are concerned about financial side effects – when the elephant in the room is that these measures are morally repugnant!

  • 104. clark  |  February 27, 2014 at 3:13 am

    This has kinda been a good week for us…A good few years really. The Arizona blowback was like watching a train wreck in slow motion. The politicians who voted for it were mauled horribly by the media in interviews and they couldn't answer basic questions, or imagine even OBVIOUS theoretical consequences. It was pretty clear the ones voting for it were sending out their dog whistle signals to their rabid base, but they were completely unable to defend their positions with even a veneer of credibility.

    Now the Texas ruling…its kinda scary actually. I bet this will be the big thing on the TV box tomorrow. I'm originally from TN and they are bass-ackwards there. Texas makes TN look like a MENSA convention by comparison. Just pretend Dallas doesn't exist and its like a perpetual Klan rally down there. And yeah, TN still has statues celebrating the greatness of Nathan B. Forest.

    I'm still pretty flabbergasted by Rush's show this week where he claimed Matthew Sheppard was a hoax….wow, just wow. Is 15 years so short a time that the revisionists can swoop in?

  • 105. davep  |  February 27, 2014 at 9:40 am

    Mrs. Shepard should drag that braying ass into court and sue him for every penny he has.

  • 106. ebohlman  |  February 28, 2014 at 9:02 am

    For what? US law doesn't recognize posthumous defamation as an injury that the decedent's estate can seek redress for.

  • 107. Bruno71  |  February 27, 2014 at 10:03 am

    I wonder if Elton John will play at Limbaugh's next wedding. Or maybe he can counsel him through another stint in rehab.

  • 108. Rick O.  |  February 27, 2014 at 12:12 pm

    6 federal judges in 2 months, and looking at their bios a more unlikely group of revolutionary "activists" there has never been. For those of you who have followed the courts before, do you have any comments on whether this is becoming a self-sustaining trend? Or is it not till an appeals decision that we can read anything into it?

  • 109. sfbob  |  February 27, 2014 at 12:49 pm

    I don't claim to have inside information but the simple fact that each new decision cites the recent decisions from other circuits is pretty strong evidence of a trend. There really don't seem to be any outliers here, at least not thus far.

  • 110. Bruno71  |  February 27, 2014 at 5:26 pm

    It's certainly an example of judicial momentum, where each court is influencing the decision of the next. However, no doubt an appeals court and/or SCOTUS could feasibly tamp this momentum. I have a feeling the 5th Circuit will be chomping at the bit to reverse the Texas decision at least.

  • 111. Kevin  |  February 27, 2014 at 5:26 pm

    I have watched the courts for many years on issues ranging from data privacy, to the Fourth Amendment, copyright/trademark, and LGBT rights. The jurisprudence around heightened scrutiny/'rational basis with bite', immutability, class distinctiveness, political powerlessness, and rights to 'marriage' as opposed to 'same-sex marriage' have begun to coalesce in a serious way.

    Think of it this way. If you were deciding a constitutional ban on SSM case on the merits but wanted to uphold the ban, you would have to ignore the 6+ decisions on the issue and the fact that all SCOTUS opinions have been pro gay rights in the past ~25 years. But, more importantly, (and this is really the fundamental problem with upholding a ban from a judicial perspective) you would have to write an opinion that articulates why gay men and lesbians a) somehow "choose" to be gay and thus do not belong to an immutable class; b) have such political power that suspect class status is inappropriate (which is historically laughable); c) are not injured by the social stigma of being walled off from the most important relationship in life; d) how the denial of marriage benefits advances a rational state interest, etc. Furthermore, the opinion would *have* to address all these points, and more, given the rigor of the briefing. Gone are the days when you can sweep these questions under the rug with a summary denial.

    Nobody wants to write such an opinion! They're inauthentic, deeply unpopular with the next generations, and now easily recognized for what they are: bullshit. Bruning is a joke and a relic. It's only defense of rational basis review is "the SCOTUS never said so" and its only defense of the ban was a states' rights argument. No respected member of the bench could get away with writing that today.

  • 112. Rick O.  |  February 28, 2014 at 5:50 am

    Thanks, I hope you are right that now some cogent thought has to be applied. I was astounded a year+ ago when that ancient geezer (Mormon?) district judge in Nevada actually passed off his ruling upholding the ban by accepting the weirdest argument of all: that SSM would cause fewer straights to get married.

  • 113. SPQRobin  |  February 27, 2014 at 4:06 pm

    If they were really smart they would not appeal this decision because (assuming the Fifth Circuit rules against us and SCOTUS will wait for a circuit split) then it would take longer for SCOTUS to make a final ruling. In any case looking forward to what the Fifth Circuit comes up with 🙂

  • 114. StraightDave  |  February 27, 2014 at 5:30 pm

    TX doesn't give a rat's ass what the rest of the country thinks. They're gonna defend their own turf even if it brings down all the other states with them. They're not thinking long term, big picture, team player, none of that stuff. They will die with their boots on.

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