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Sixth Circuit asks Michigan same-sex couple to respond to state’s request for initial en banc hearing

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Michigan state seal

The Sixth Circuit Court of Appeals has asked the same-sex couple who filed the lawsuit challenging Michigan’s same-sex marriage ban to respond to the state’s request for initial en banc hearing.

Michigan officials had earlier requested an initial en banc hearing, which is a request for the appeal to be heard initially by all Sixth Circuit judges, instead of a three-judge panel. The state pointed to several reasons it might be more beneficial to hold a hearing with all the appeals court judges: they argued it would promote judicial economy, and that, since all states that fall within the Sixth Circuit have marriage equality cases pending there, an initial hearing that results in a decision by all Sixth Circuit judges would avoid confusion.

The other marriage cases in the appeals court will likely be heard by random three-judge panels, meaning that different cases could come out differently, within the same circuit. Instead of allowing that confusion, the request suggested, all Sixth Circuit judges should decide the Michigan case, and the outcome would be binding in the entire circuit.

The response from the Michigan couple is due April 21.

Thanks to Kathleen Perrin for these filings

For more information on DeBoer v. Snyder from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Naomi  |  April 8, 2014 at 9:15 am

    So…can someone parse this form me? Do we want an en banc hearing, or not?

  • 2. DrHeimlich  |  April 8, 2014 at 9:50 am

    I'm not sure it makes an enormous difference. There seem to me to be pros and cons either way.

    If the whole thing is taken care of at once, en banc, it speeds the time table of this case. Rather than first arguing with the three-judge panel and then dealing with an en banc appeal before moving on to SCOTUS, this case would get to skip a step. That increases the likelihood that this case, rather than one of the many other marriage cases, would be the one to be taken up by SCOTUS. (Without the acceleration, I would place my bets on the Utah or Virginia cases being "the one.")

    On the plus side, this case had a full trial (as did the Prop 8 case), which provides a case history that's not easy to ignore. That history includes the complete discrediting of Regnerus and his "study."

    On the minus side, this case doesn't have the purest "legal bloodline," if you will, of all the available cases. The plaintiffs initially sought only to challenge adoption laws, and were asked by the judge to amend their complaint. This could be seen as "judicial activism." By contrast, the Utah case is straightforward: plaintiffs sued for marriage equality, the State opposed and defended the law the entire time, and are now the ones appealing.

    Back on the plus column, if the Michigan case was NOT heard en banc, and as suggested, different cases out of the Sixth Circuit somehow received different rulings, it would make it impossible for SCOTUS to procrastinate in taking up the issue. But on the other hand, it's probably a stronger message for our side to continue our unbroken string of wins post-Windsor.

    Six of one, half dozen of the other? Ultimately, given that justice delayed is justice denied, I come down on the "en banc = good" side.

  • 3. sam  |  April 8, 2014 at 1:11 pm

    The 6th is one of the less-"friendly" circuits. I think It would be better to have circuits like the 10th and 4th to rule first. With favorable outcomes in those more likely, that would make it harder for the 6th at a later date to go against the tide. So it seems to me fast-tracking straight to en banc would be (relatively) bad.

  • 4. Rob  |  April 8, 2014 at 4:19 pm

  • 5. jdw  |  April 8, 2014 at 10:15 am

    Here's the Sixth Circuit:

    The make up:

    10-5 GOP with 1 vacancy
    5-4 Dem in active Sr Judges

    If it's En Banc, the State goes straight to that 10-5 GOP number, and we would need to flip 3 GOP judges to get an 8-7 win.

    If it's a three person panel, the pool to be drawn from is 15-9 GOP, which are lower odds for the State to get a 2-1 GOP panel. In turn, in most Circuits if a Sr Judges is part of the Panel then he/she also will be added to the En Banc. So…

    Let's say that the panel is 2-1 GOP, with 1 Sr GOP and 1 Sr Dem, with the sole Circuit Judge is GOP. I think I've seen one of these were two of the panel were from the Sr pool. Anyway, then let's say we "win" with a 2-1 where in an upset the Sr GOP joins the Dem while the Circuit Judge is against. If you ask for an En Banc after that it's:

    10-5 GOP + 1-1 Sr

    With the knowledge that both of the Sr are going to vote down the Ban. That turns the 10-5 to a 10-7 and we now only need to flip 2 of the 10.

    You'd get the same thing if the panel included two Sr Judges who were Dem: a 10-5 that suddenly becomes 10-7.

    We need to recall that this is an appeal of a ruling by Friedman, who is a Reagan appointee. In addition, Friedman, like the beloved Judge Walker here in California, did a Trial rather than just ruling on the papers. He was thorough and thoughtful is his ruling. Then up above, there's the GOP Kennedy with his Windsor ruling. Those things are probably giving some of the GOP judges some pause.

    The problem for our side is that a staggering 8 of the 10 GOP on that court are GWB appointees, and perhaps a little more stuck in their Roberts/Alito mode that some of the older judges starting to see the light such as Friedman.

    So… from a strategy standpoint, it's probably smarter for the Bad Guys to try to go this route and quickly get a decision before SCOTUS takes up one of the other cases (likely Utah, OK or Nevada). Once those get taken up, it's extremely likely that all of these other ones will be stayed pending a decision by SCOTUS on the issue (i.e. striking down all of the state bans since that's pretty much where Kennedy has boxed himself into, intentionally or not).

  • 6. Dr. Z  |  April 8, 2014 at 10:25 am

    What we need is for someone to do a Bayesian analysis, i.e. given Rep how likely to support; and given Dem how likely to support. Alternatively, are there specific individual judges we want to avoid, like O'Scannlain on the Ninth circuit. I would say that if there are three or four judges we specifically want to avoid then we should support the en banc.

    Calling Nate Silver…

  • 7. Eric  |  April 8, 2014 at 10:42 am

    A review of past rulings may be more informative than party affiliation.

  • 8. Dr. Z  |  April 8, 2014 at 11:40 am

    Specific information on individual judges is always helpful, provided it's available. However, we now have enough data points on rulings throughout the country that we can begin to assess the base probability for a judge to rule in a given direction, given a party affiliation. In other words, we now know enough to do a Bayesian revision of probabilities rather than continuing to rely on the simplistic (and so far inaccurate) "Republican bad, Democrat good" formula.

  • 9. Larry  |  April 8, 2014 at 10:40 am

    I think this is overthinking it. Isn't the big reason judicial economy? Having 4 different states (MI, KY, OH, TN) defend marriage bans at the appeals level simultaneously, not to mention 4 different panels as opposed to getting everything taken care of all at once. Also, Michigan might be planning to appeal a 6th circuit panel ruling en banc anyway, so that cuts out a level.

    Also, I think the math is a lot more complicated than X Democrats and Y Republicans, seeing how many Republican-appointed judges have made favorable decisions recently.

    Then again, the first panel to rule would be binding on other 3 judge panels, and there's no guarantee that any state would appeal en banc rather than go straight to the Supreme Court, so I have no idea. It's entirely the 6th Circuit's decision.

  • 10. B Z  |  April 8, 2014 at 11:02 am

    Why can't they do the same thing as the 10th Circuit, and make sure all the appeals are heard by the same 3-judge panel?

  • 11. Guest  |  April 8, 2014 at 11:51 am

    They are.

  • 12. Ragavendran  |  April 8, 2014 at 12:05 pm

    Probably because the four cases here are more different than the ones in the 10th Circuit. Michigan's case is one that started off as an adoption case and then turned into a marriage case, Kentucky is just a marriage recognition case, Ohio is just a marriage recognition case on death certificates, Tennessee is a marriage recognition preliminary injunction for just three couples. Undoubtedly, there are common issues involved, but there are several other issues in which these cases differ. Still, I think it does make more sense to have the same panel hear all four cases. This complication is all the more reason for an initial en banc hearing to be granted.

  • 13. Ragavendran  |  April 8, 2014 at 11:57 am

    Agree with the judicial economy argument. I will even go further and say that should an en banc hearing for Michigan be granted, the proceedings of the other appeaIs should be stayed pending the outcome, for the same judicial economy reason.

    However, I don't believe that the first panel to rule will be binding precedent on the other panels, since it is a peer panel with same (not higher) authority. It will be persuasive precedent though. So, the four panels can come up with conflicting decisions.

  • 14. Guest  |  April 8, 2014 at 12:14 pm

    This is an incorrect statement of the law. A later panel may _not_ overrule a previous panel of the same circuit in a factually and legally indistinguishable case. This is true in every circuit. Only an en banc panel or the Supreme Court may do this, with the following extremely narrow exceptions: the passing of an intervening statute, an undercutting en banc or Supreme Court decision, the circulation of an opinion throughout the Circuit Court for their approval.

  • 15. Ragavendran  |  April 8, 2014 at 12:37 pm

    Okay, I see. You are correct, I spoke too soon – not a lawyer here (hence the choice of "I don't believe" phrase, but now I do believe). However, despite these rules, intra-circuit splits are not uncommon and different circuits have different rules for dealing with them:

    "There are several explanations of how intra-circuit splits arise. One such explanation is that the second panel and the parties to a case failed to discover the previous panel’s decision during the course of their research. Another explanation for an intra-circuit split is that the second panel distinguished the two decisions when, in reality, the cases are not materially different. A more controversial reason for two panels reaching conflicting decisions, however, is that the second panel intentionally omitted discussion of the first case in order to achieve a different result. Regardless of the reasons for their creation, these intra-circuit splits signal uncertainty for the third panel."

    The first reason is impossible in this case, but the other reasons are entirely possible here. And:

    "In most federal courts of appeal, resolution of an intra-circuit split is straightforward: the earliest decision controls. But in the Eighth Circuit, a third panel faced with conflicting decisions of two previous panels may choose which decision to follow, and in the Ninth Circuit, a third panel is instructed to immediately call for the en banc court to resolve an intra-circuit conflict."

  • 16. Guest  |  April 8, 2014 at 1:20 pm

    The kinds of decisions the author of that article is talking about are ones where the issue creating the intra-circuit split are secondary, preliminary, procedural, or "threshold" questions. He is not referring to two panels deciding differently on the central questions of the dispute. That is why the examples he chooses in the second section are procedural/Erie issues. It is also why he emphasizes that judges "steadfastly adhere to [the] prior panel."

    There is little to nothing to distinguish these cases that would make it permissible for a second panel to depart from the first, although they may note their disagreement in dicta.

  • 17. Ragavendran  |  April 8, 2014 at 1:32 pm

    I would disagree. The appeals now at the Sixth Circuit differ in several ways: adoption rights, marriage recognition versus right to marry in-state, permanent injunction versus preliminary injunction, recognition for all versus recognition for three couples versus recognition for purposes of death certificates. Even though the common underlying issue is the same for all the appeals, procedurally, there are varied differences that could definitely suffice for a rouge panel to go its own way (not that that would be right to do). Also, due to the varying scope of these appeals, most decisions may only bind one-way. For example, overturning a preliminary injunction by the Tennessee panel on procedural grounds will not be binding on the Michigan panel to overturn Friedman (but not the other way around).

    Anyway, all these possibilities are all the more reason that an initial en banc hearing should be granted for the Michigan case, which would bind the panels in all other appeals.

  • 18. Pat  |  April 8, 2014 at 2:01 pm

    I'm a bit confused. Once the first panel rules on the first case (say, the DeBoer appeal on the marriage ban), assuming they uphold the lower court ruling, doesnt it bring marriage equality in all the state (and circuit)? In that case, doesn't it make all other cases moot anyway? (for sure, it people have the right to marry, then it will also be valid on death certificates, and also out-of-state marriages will be recognized)

  • 19. Ragavendran  |  April 8, 2014 at 2:10 pm

    Yes, if the first panel to rule is the Michigan panel. And since it is most likely that oral arguments in the other cases would have happened by then, the other panels could either simply apply that precedent, or, (and I'm not sure if this is possible/relevant here) remand the case back to district court in light of the new development.

    However, if, say, the first panel to rule is the Tennessee panel, and it overturns or upholds the preliminary injunction, then it probably will not render the other appeals moot, as the appeal differs markedly from the others.

    I guess it is also probable that panels might simultaneously release opinions, which could possibly differ.

  • 20. sfbob  |  April 8, 2014 at 2:16 pm

    I suspect that no matter which panel rules first, the ruling will be stayed immediately. I don't think we're going to see anything definitive in the 6th Circuit until one or more of these cases is granted cert and ruled upon by SCOTUS or all of them are denied cert. Or if all of the defendants suddenly decide to stop appealing (which is extremely unlikely).

  • 21. Ragavendran  |  April 8, 2014 at 2:23 pm

    Oh yeah, I had forgotten about stays. So a stayed decision will not be binding precedent on the later panels?

  • 22. sfbob  |  April 8, 2014 at 3:17 pm

    Well not being a lawyer I'm not sure how these things work. I will note that as each district court decision is issued, it ends up being cited in the next decision that's issued, even though it's been stayed, and even if it's in a different circuit. As far as what gets enforced, I don't think anything becomes a binding precedent until the fighting stops. And even there it's open to debate; after all consider the Baker decision which marriage equality opponents continue to cite even though that its precedential value is essentially nil.

  • 23. Guest  |  April 8, 2014 at 3:24 pm

    You're correct in what you said above in re the stay. The other poster is incorrect in his/her assumption about the scope of a holding on appeal from a preliminary injunction. I would also totally agree, as all who are watching this litigation do, that the Supreme Court will eventually weigh in and that all of these decisions will be stayed pending that final determination.

  • 24. Ragavendran  |  April 8, 2014 at 3:45 pm

    "The other poster is incorrect in his/her assumption about the scope of a holding on appeal from a preliminary injunction."

    Could you please explain how a ruling by the Tennessee appeals panel that overturns the preliminary injunction on the marriage recognition of three couples will definitely render the other three appeals moot? (My statement was that it will probably not render the appeals moot.)

  • 25. Guest  |  April 8, 2014 at 4:11 pm

    In that case, fill in x, y and z below with, "the court below did not abuse its discretion because WE HOLD that laws that discriminate on the basis of sex/sexual orientation are subject to heightened scrutiny, that they violate due process, etc. etc."

  • 26. Guest  |  April 8, 2014 at 3:09 pm

    No, what the Sixth Circuit holds, as a matter of law, in their ruling on an appeal from a preliminary injunction binds the jurisdiction.

  • 27. Ragavendran  |  April 8, 2014 at 3:35 pm

    Not if they don't reach the merits. Then, like you argued below, it sets no precedent on the other three appeals. That's what I meant.

  • 28. Guest  |  April 8, 2014 at 4:09 pm

    As you pointed out above, one of the factors a court will consider on appeal is whether the court below abused its discretion in deciding the likelihood of success on the merits. If the Sixth Circuit were to hold, as a matter of law, that success is likely because x, y, and z. X, Y, and Z now control within the jurisdiction. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS v. Regents of University of Michigan, Court of Appeals, 6th Circuit 2012 (citing Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 250 (6th Cir. 2006) (on appeal from a preliminary injunction) for a previous panel's application of the 14th Amendment).

  • 29. Guest  |  April 8, 2014 at 2:59 pm

    Your disagreement is noted, but still incorrect. All of the issues that you raise, save for the ability to marry in-state, are secondary to the core, substantive question of whether state bans on same sex marriage violate the EPC and DPC of the 14th Amendment. The adoption rights in the MI case are subsumed under substantive state marriage law. The injunction issue is only a question of relief, not a holding on the merits, etc.

    Further, the example that you raise could not even create precedent, binding or otherwise, since the matter would have been disposed of procedurally (meaning the panel would never have reached the substantive question).

    There is simply no way of getting around this, and no panel is going to "go rogue" as you suggest and sabotage their own careers by reversing a previous panel full of judges that they will have to work with for the rest of their professional lives.

  • 30. Ragavendran  |  April 8, 2014 at 3:31 pm

    I don't understand what you mean when you say that my disagreement is "incorrect". It is a fact that these appeals vary greatly in their scope. I think you may have missed the part where I did agree with you about the core issue in these four appeals being the same. And the injunction issue does involve merits to some extent, because one of the main factors is whether the State is likely to win the case on its merits. Evaluating this likelihood (even qualitatively) requires consideration of the merits, though a decision is not a holding on the merits. When you say the preliminary injunction decision will not create precedent for the other three appeals, that was exactly my point, so we do agree there.

    Also, not all judges get an A+ for their professional ethics. There are examples of judges who have "gone rogue" in the past without considering whether they will "get along" with others in the Court who will disagree with them. I'm not saying that they will blatantly reverse a previous opinion (because they are not allowed to do so as you say), but there are judges who, if they get a chance to exploit procedural differences in the cases, will pounce on it to carve out a different legal path that might lead to a different decision.

    And, I'm done arguing on this issue. Don't tell me it is incorrect for me to be done arguing 😉 (just joking to lighten the mood a bit)

  • 31. Guest  |  April 8, 2014 at 3:42 pm

    Yes, I know what the four factors are. It is your abiding contention that there is anything that legally distinguishes these cases as a matter of substantive law such that panel B would/could disagree with panel A. I see that since you have not studied law, you probably are unfamiliar with the difference between questions of substance, questions of procedure, etc. and how these differences impact the precedential force of a decision.

    You are free to speculate on a legal website, although I really do not understand why you continue to defend legally incorrect positions when individuals in a far, far better position to understand them have pointed out your mistakes.

  • 32. Ragavendran  |  April 8, 2014 at 3:55 pm

    No, you continue to misunderstand me. I won't keep arguing on the issue of the appeals and precedents, as I said I'm done arguing about that.

    As for your final comment, it is perfectly okay that you do not understand me – no problem! I will gladly accept your pointing out my mistakes. Did I not agree with you that you are correct and I was incorrect about the intra-circuit splits in the beginning of our exchanges: "Okay, I see. You are correct, I spoke too soon."

    In the discussion that followed though, I don't think you understand what the statement I'm trying to make is (and I'm not saying that's your fault or anything – as you point out, I haven't studied law, therefore, I may not communicate my points clearly). Therefore, what you are saying is incorrect is what you think I'm saying, which I think is different from what I'm actually saying. I don't even get what you mean by "legal website". And what your standards for "speculation" are. Sorry.

    Since it is clear by now that we do not understand each other, it is best not to continue this!

  • 33. Dr. Z  |  April 8, 2014 at 5:29 pm

    IANAL. Curious why adoption rights (a question of family law) is subsumed under substantive state marriage law. Is that specific to Michigan, because single persons aren't allowed to adopt? Didn't this couple originally challenge the adoption law on just that basis, that the law was unconstitutional because it precluded unmarried persons from adopting (or allow second-parent adoptions)?

    That doesn't appear to be the case in at least some other states, where adoption law is independent of marriage law.

  • 34. Rose A. Dana  |  April 8, 2014 at 5:59 pm

    I don't know why so many people feel the need to start with IANAL. Your preferences are not at issue here. For the record, if it matters, IORAL.

  • 35. Straight Ally #3008  |  April 8, 2014 at 8:28 pm

  • 36. Dr. Z  |  April 8, 2014 at 8:37 pm

    The palindrome of IANAL is LANAI.

  • 37. Michael Grabow  |  April 9, 2014 at 1:25 pm

  • 38. Nyx  |  April 8, 2014 at 6:44 pm

    Single people can adopt in Michigan but their unmarried partners cannot co-adopt their children. I found it interesting that the court did not address this issue by ruling that lgbt couples should have the right to get married… and then co-adopt.

  • 39. sfbob  |  April 9, 2014 at 11:48 am

    If I understand correctly, the judge's reasoning in suggesting that they sue for the right to marry is that they could not have standing to sue for the second-parent adoption if they were married to each other. So in order to gain that right, they should sue for the right to marry.

  • 40. Warren  |  April 8, 2014 at 10:49 am

    I hope the plaintiffs chose not waive their right to three-judge panel just to speed up the trail. The odds are on the plaintiff side. Can't trust the conservatives and their agenda. Let the legal system work to the full advantage of the plaintiffs.

  • 41. Rick O.  |  April 8, 2014 at 11:52 am

    I believe in the 10th it IS the same 3 hearing Utah this week and Oklahoma next week.

  • 42. Ragavendran  |  April 8, 2014 at 12:06 pm


  • 43. Mike in Baltimore  |  April 8, 2014 at 4:22 pm

    That is true for the 10th.

    It is not necessarily true for the 6th.

    We are not discussing the proceedings of the 10th Circuit, but the 6th Circuit.

  • 44. Rick O.  |  April 9, 2014 at 11:36 am

    I'm not sure it's a rule in the 10th, just the way they decided to handle these two cases. There was also much talk about hearing the Utah and Oklahoma cases at the same time, but they opted to allow each to have their own day in court

  • 45. Mike in Baltimore  |  April 9, 2014 at 2:53 pm

    I posted "That is true for the 10th." The 10th Circuit decided that the same panel of judges will hear both cases.

    Did I infer, imply or state that it is a RULE in any Circuit Court?


    I stated that it is the case in the 10th, but the discussion is about the FOUR cases in the 6th Circuit, and apparently there will be NO combining of cases, nor having the same judges hear all four, unless ALL cases are heard en banc (which the 6th, so far, has given no indication will happen).

  • 46. Corey  |  April 8, 2014 at 11:05 am

    I believe the anti-gay conservatives are choosing en banc in the implicit assumption that conservative judges, on balance, will rule their way. However, I think their strategy will backfire; after all, they also assumed that "scary scary gay" counted as evidence in trial.

  • 47. sfbob  |  April 8, 2014 at 11:25 am

    Those folks don't seem to learn. What the REALLY don't seem to get is that while, yes, a certain proportion of judges and justices (we know who the latter are) can be relied upon to do the bidding of their masters, most federal judges, no matter who appointed them, understand what the law means and how it is to be applied. It should be the simplest matter in the world to demonstrate that denial of marriage equality and LGBT equality in general is patently unconstitutional. The record from Windsor onward seems to indicate that they federal judiciary really does understand this. So any confidence conservatives may have in "their guys" is, I suspect, going to end up being misplaced.

  • 48. StraightDave  |  April 8, 2014 at 12:27 pm

    I fully agree. A year or 2 ago, it would be a much safer bet that judges would default to their supposed partisan leanings. I don't mean to impugn their judgment, but everyone brings some personal background to the table. Since Windsor, it's pretty obvious that the Fed judges feel they have been given a legal and social green light to "do the right thing". And to their credit, that are doing just that. The culture wars do not seem to have infested the district courts (mostly). Let's hope the circuits are reading the same book.

  • 49. AndyInCA  |  April 8, 2014 at 1:48 pm

    I agree too. Judges have a vested interest in ending up on the right side of the ultimate SCOTUS ruling (and of history), regardless of who appointed them. They can't but see the writing on the wall.

  • 50. ebohlman  |  April 8, 2014 at 2:27 pm

    Also let's not forget that Federal judges are appointed for life and don't have to run for re-election. At the appellate level, that means that the only real political factor is if a judge is hoping for a SCOTUS nomination and In the Sixth, only Sutton and Kethledge (both GWB appointees) are young enough for that to be a a potentially major consideration.

  • 51. SPQRobin  |  April 8, 2014 at 1:22 pm

    Rather important international news: a Nigerian court will hear arguments on April 28 about the constitutionality of the Same Sex Marriage (Prohibition) Act 2013, which also prohibits e.g. gay clubs and the public display of same-sex relationships.

    Here's the Act:

  • 52. Christian  |  April 9, 2014 at 7:02 pm

    In a country where something 97% of the country absolutely hates gay people, in fact it's one of the few points of bipartisanship in Nigeria, the result of this challenge is as forgone a conclusion as the case of Arabella Hunt in 1680 (Sexual identities in early modern England: the marriage of two women in 1680’, Gender and History) considering Nigerian society is socially medieval on this.

    It's hard to imagine that the court will not simply, in interest of self-preservation (I am certain any ruling other than in affirmation of the law would seriously endanger the judges life), result in a 'Bowers' verdict on steroids.

    I hope, nonetheless, I am seriously proven wrong.

  • 53. Eric  |  April 8, 2014 at 4:30 pm

    If the anti-gays want it, I'd be inclined to oppose it. If the panel gets it wrong, one can always appeal to the rest of the circuit. If the panel gets it right, the full circuit will decline to hear the case.

    If their interest was really judicial efficiency, they would have applied for cert directly with SCOTUS.

  • 54. Marriage Equality Round-U&hellip  |  April 9, 2014 at 8:11 am

    […] USA, Michigan: The 6th Circuit is asking the plaintiffs in the marriage equality case to respond to the state’s request for an en banc (full panel) hearing on their case. full story […]

  • 55. Marriage Equality Round-U&hellip  |  April 9, 2014 at 8:35 am

    […] USA, Michigan: The 6th Circuit is asking the plaintiffs in the marriage equality case to respond to the state’s request for an en banc (full panel) hearing on their case. full story […]

  • 56. Pat  |  April 9, 2014 at 10:27 am

    A nice preview of the main players in tomorrow Utah appeal:

  • 57. Chris M.  |  April 9, 2014 at 11:30 am

    Interesting read. What really stood out for me is this quote from opposing counsel: [I'm doing this to] “fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides.”

  • 58. sfbob  |  April 9, 2014 at 11:49 am

    Yeah, that's really creepy. I guess he didn't much study the Establishment Clause when he was a law student. Then again, given where he studied, maybe they didn't place much emphasis on it at his school.

  • 59. Zack12  |  April 9, 2014 at 11:53 am

    The whole Utah case has been a mess from the start.
    Remember that they didn't even bother to file for a stay.
    Partially because of the mess the AG's office has been in but because I think they truly thought there was no way they were going to lose.
    As Rachel Maddow pointed out, they failed to do something they teach you to do in your first week of law school.
    Let's hope they keep that record of stupidity going.

  • 60. StraightDave  |  April 9, 2014 at 2:09 pm

    Hiring their current assistant AG to argue their case was a good down payment on that record.

  • 61. davep  |  April 9, 2014 at 12:22 pm

    That's the warped view of the Constitution that is held by some of these folks. I've seen several examples of this kind of Orwellian 'logic' attempted by people who are both deeply religious and involved in trying to defend these bans with some kind of argument that tries to appear to be based on the question of whether the law is constitutional.

    They try to argue (or convince themselves, really) that the actual process of constitutional law, and the actual content of the Constitution which clearly reveals that these laws don't comply is somehow not relevant, and that instead they should just be able to point to things like 250 year old quotes from the founders which mention their respect for religion and 'morals', and then twist that into the conclusion that therefore the protection of rights mandated in the Constitution somehow doesn't apply to people whom they view as 'immoral'. It's an elaborate and bizarre thought process.

  • 62. Lynn E  |  April 9, 2014 at 1:00 pm

    Here in Utah, there is a new pro-equality ad campaign featuring local newscasters and celebs. The Fox affiliate did a report on this campaign Sunday night. The opposing viewpoint (director of the Eagle Forum, a verrry right-wing group) cited the talks given in the weekend's LDS General Conference to support her opposition. Granted, this is Utah, but given the facts surrounding polygamy and Utah's statehood in the 1890's, should they be cited as any kind of moral authority?

  • 63. davep  |  April 9, 2014 at 1:21 pm

    … and more to the point, "moral views" and "moral disapproval" are not a valid reason for a civil law to deny Equal Protection anyway. Laws cannot exist simply for the purpose of allowing one group to express 'moral disapproval' of another group. The courts have made that quite clear, but these guys prefer to keep denying this fact. And as long as they remain in denial of this and insist on continuing to fight with 'arguments' based on this denial, they will continue to lose.

  • 64. Rick O.  |  April 9, 2014 at 12:02 pm

    Keep ears on Tomsic. Her performance in the Kitchen v Herbert briefs and live in front of Judge Shelby has been stellar, both excellent reasoning and very quick on her feet. A Utah native (I think she was born in Price but grew up in the big city, pop. 5,000, of Moab), she has taken this case to heart. Someone could easily make a successful "To Kill a Mockingbird" type movie by casting her as herself.

  • 65. AndyInCA  |  April 9, 2014 at 1:12 pm

    Peggy Tomisic is awesome. Very quotable… "I'm here to prove that the 14th amendment is ailve and well, even here in Utah".
    or, responding to Utah's SSM stay request, where the state said they wanted to avoid confusion, she replied "The only confusion is in their minds" referring to the State AG, etc.

  • 66. Zack12  |  April 9, 2014 at 12:35 pm

    Speaking of the 9th circuit, there will be a judicial hearing Thursday on Michelle T. Freidland, in which cloture is likely to be invoked.
    Once that is done though, she will likely be confirmed by the skin of her teeth but confirmed nonetheless.
    Not only will this fill the 9th circuit but it will put a major LGBT ally on the 9th circuit for us.
    She of course, is making the wingnuts heads explode.

  • 67. Rick O.  |  April 9, 2014 at 2:17 pm

    The 9th Circuit filled, no openings? How many decades has that taken?

  • 68. Zack12  |  April 9, 2014 at 1:41 pm

    Reading an article on the Washington Post that suggests the judges could rule the issue should be left up to voters.
    I highly doubt that will be the case though. You don't put a minority group's right up for a vote,period.

  • 69. davep  |  April 9, 2014 at 2:00 pm

    Or another way to look at that would be that, technically, you CAN put a minority group's rights up to majority vote, but the resulting measure will be overturned if the public votes to do something that violates the Constitution.

    From the article, regarding the idea that this issue should be left up to public vote at the state level: "It’s an institutional argument that we’ve seen at the Supreme Court and we’ve seen in state litigation" … Uh, yeah, sure. It just wasn't the WINNING argument.

    This article seems rather….. let's call it 'misguided'.

  • 70. sam  |  April 9, 2014 at 2:22 pm

    I think they were trying to make the article less one-sided, but absent of any convincing argument on the other side manufactured an opposing opinion that at least to the uninitiated sounds reasonable.

    To be fair the writer does a better job of that than Utah…

  • 71. Rick O.  |  April 9, 2014 at 2:27 pm

    Well, the Post is trying to be "fair and balanced". Probably the same issue has an article in the sports section about how this year the Cubs are going to win the pennant. An article with similar tone appeared in Denver last week, probably to avoid the embarrassing lop-sidedness that has arisen as anti-ME arguments pale.

  • 72. Mike in Baltimore  |  April 9, 2014 at 3:10 pm

    The article is not by a reporter of the WaPo, but a reproduction of some article by an unnamed AP writer.

    And remember, SCOTUS Justice Kennedy, although appointed by a Republican (Ray-Gun), and generally not very 'liberal' in viewpoint on most issues, is probably one of the better friends of the GLBT community on the high court.

  • 73. Retired lawyer  |  April 9, 2014 at 3:18 pm

    Although the article is on WashPo's site, it was written by AP, and has the usual, "on the one hand, on the other hand" approach of the AP. There is nothing necessarily wrong with that, but here the AP writer was reduced to quoting on of the most fatuous men in a town full of them: Ed Whelan of the inaptly named Ethics and Public Policy Center. Said Whelan: "There are strong political factors that seem to be driving these district court decisions." Could anyone be more wrong? The district courts have been driven by the facts and the law, as they must be. Whelan, to the AP, goes on to proclaim: "It's not the job of lower courts to predict where the Supreme Court will go." Actually, it is their job to deduce the law base on Supreme Court decisions, and anticipating how that Court will rule is very much part of the process. If a reporter needs someone to say something foolish, Ed Whelan is a safe bet. The courts will make short shrift of any argument that they should not rule on Constitutional issues squarely before them.

  • 74. jpmassar  |  April 9, 2014 at 2:01 pm


    Salt Lake City – While the eyes of Utah (and much of the nation) are on the 10th Circuit Court, which will hear oral arguments tomorrow on whether to uphold a lower court’s decision to strike the state’s ban on same-sex marriage, Utah Republican Attorney General Sean Reyes has quietly filed a Petition For Emergency Extraordinary Relief with the Utah Supreme Court to allow the state to halt adoptions by LGBT parents already in motion…

    The suit, filed by the Attorney General on behalf of the Utah Department of Health and the Office of Vital Records and Statistics, is seeking to overturn the rulings of multiple judges in Utah who signed the orders allowing the adoption proceedings to begin prior to the United States Supreme Court granting a stay on Judge Shelby’s ruling.

  • 75. jpmassar  |  April 9, 2014 at 2:02 pm

    The Emergency Petition gives the adoptive parents only three days to respond, an extraordinarily limited amount of time for these parents to find an attorney, prepare their arguments/briefs, and file with the court. Not to mention the nightmare of court and legal costs that can pile up on these parents who just finished paying adoption costs.

  • 76. Keith  |  April 9, 2014 at 2:31 pm

    The anti-gay marriage side probably realize they may not win on the same sex marriage battle so they are getting ready for their next assault against us. Which will be whether or not same sex married couples should legally be allowed to adopt children and/or be allowed to share equal parenting rights for children from other arrangements.

  • 77. sfbob  |  April 9, 2014 at 3:08 pm

    Having established that the constitution requires equal marriage rights for couples whether same-sex or opposite-sex, it's going to be impossible to justify disparate treatment where adoption rights are concerned because any attempt to do that would re-create a situation where there are two kinds of marriages. That ain't gonna fly.

  • 78. Dr. Z  |  April 9, 2014 at 5:37 pm

    Exactly my thought. AG Reyes has some nerve filing this give that the state LOST the district court decision. He's behaving as though they won.

  • 79. David ROH  |  April 9, 2014 at 10:20 pm

    Reyes takes his orders from the fifteen old white men who run this state from their office building adjacent to Temple Square.

  • 80. sfbob  |  April 9, 2014 at 3:21 pm

    Is there any way the state's move could be contested on a class-action basis?

  • 81. davep  |  April 9, 2014 at 2:24 pm

    Wow. That kind of move, and the way it was done with the three-day response time, is such a low-life douchebag move that if it happened in a movie it would be so pointlessly vindictive that it wouldn't be believable.

    We all owe so much to the families who have made the commitment to put themselves through this legal and emotional wringer. And the scum who insist on subjecting these families to this kind of harm have a lot to answer for.

  • 82. Rick O.  |  April 9, 2014 at 2:32 pm

    3 days? On adoptions in process? This seems particularly mean spirited. Talk about messing with people's lives. I hope it gets a lot of press and the notice of the 10th circuit judges; there is no conceivable way the "optics" on this are good for Utah.

  • 83. David ROH  |  April 9, 2014 at 10:14 pm

    Nothing that Utah officials do is actually good for Utah.

  • 84. StraightDave  |  April 9, 2014 at 2:38 pm

    There's a special place in hell for guys like that. Wasn't their new hot shot asst AG supposed to sit on them and make them behave nicely so they wouldn't continue to look like morons to the courts? Could they have chosen more stupid timing? I hope they get major blowback from average citizens just for the meanness factor. just wow!

  • 85. Zack12  |  April 9, 2014 at 3:44 pm

    I hope they do as well. In a sick way though, this only helps our side.
    There is nothing behind this but animus, no matter how hard they try to spin it.

  • 86. Steve  |  April 9, 2014 at 5:36 pm

    As if anyone needed more proof that the Mormon Church is pure evil

  • 87. David ROH  |  April 9, 2014 at 10:09 pm

    The big problem is/are government officials who pander to the religionist extremists who control the Utah TheoPlutocracy.

  • 88. Dr. Z  |  April 9, 2014 at 5:39 pm

    If the Utah SC were to grant this motion, the next stop is straight to SCOTUS.

  • 89. Tom  |  April 9, 2014 at 10:16 pm

    A friend of mine knows these couples, they just want to adopt, they have no resources to hire someone to respond in 3 days. Their burden is overwhelming.

  • 90. Dr. Z  |  April 10, 2014 at 6:42 am

    I feel for these couples. They're being used as pawns in a bigger game.

    Seems to me that the state's motion has been filed in the wrong place. If the state objects to the adoptions they should express that via the federal courts, not the Utah SC. If the Utah SC rules for the state (the expected outcome given that the justices are expected to conform to the wishes of the LDS elders) then the appeal would go directly to SCOTUS – constitutionally, it has to. They will then have to sort out the mess they created with their stalling games. The SCOTUS would be forced to hear the appeal, they cannot just turn away and permit such a blatantly unconstitutional harm to be inflicted pending the appeal at the 10th Circuit.

    Or, they could stay the Utah SC ruling. That would return us to the question we were discussing a few days ago – does SCOTUS have the authority under the US Constitution to override procedural decisions within the State courts? Or must SCOTUS treat state courts as sovereign, with SCOTUS involved only in appeals on final decisions of the state SCs? Remember, this emergency request is procedural in nature.

  • 91. Sagesse  |  April 9, 2014 at 8:22 pm

    Emergency? What emergency? The decision was handed down on December 20, and was stayed on January 6. Some 1300 couples were married prior to the stay, and these adoption petitions have been advancing through the courts since. How did this become an emergency on April 9?

  • 92. Background Gal  |  April 10, 2014 at 11:07 am

    Read the brief in the post below. This is an attempt to stop a specific adoption that the court ordered to proceed.

  • 93. StraightDave  |  April 10, 2014 at 12:06 pm

    Apparently it is only one of many similar cases. Within the brief below is this:

    "13. On information and belief, Defendants [State of UT] have filed similar “Petitions for Emergency Extraordinary Relief” in numerous other cases in which Utah state court judges have allowed married same-sex couples to complete stepparent adoption proceedings"

    It appears that the only justification offered for stopping the adoptions is UT's refusal to recognize their own marriages, which are a prerequisite for adoption. But the judges obviously must have taken that requirement into account and thus implicitly recognized the marriages. Now the AG is pretending they're not real.

  • 94. Ragavendran  |  April 10, 2014 at 10:14 am

    Plaintiffs just now filed a supplemental facts and analysis in the Evans v. Utah marriage recognition case in support of their request for a preliminary injunction, calling out the AG's recent actions as "continuing to impose irreparable harm on Mr. Barraza and Mr. Milner."

  • 95. Christian  |  April 9, 2014 at 2:34 pm

    SB 1306, repeal of Prop 22, passes senate judiciary committee 5-2.

  • 96. Background Gal  |  April 9, 2014 at 4:07 pm

    Link goes to a dead page.

  • 97. sfbob  |  April 9, 2014 at 4:19 pm

    You have to monkey with it a bit; try going to the home part first.

    Basically it a) re-revises statutes revised to conform with Prop 8 (for example, recognizing same-sex marriages in other states only if performed prior to 11/5/2008) and b) replacing references in other statutes to "husband" and "wife" with more gender-neutral terminology ("spouse;" "spouses.").

  • 98. Christian  |  April 9, 2014 at 4:54 pm

    Ya basically the bill turns the clock back to 1971-1976 with terminology

  • 99. Christian  |  April 9, 2014 at 4:52 pm

    So sorry about that :/

    That better?

  • 100. Rose  |  April 10, 2014 at 8:13 am

    Yes, and thank you… I understand why this repeal is necessary.

  • 101. Rose  |  April 10, 2014 at 6:29 am

    Sorry, nothing at the link and why would Prop 22 need to be repealed when it was already overturned by CSSC in May of 2008?

  • 102. Deeelaaach  |  April 11, 2014 at 4:45 pm

    Removing it from the books? Yes, I do mean this as a question, not sarcasm.

  • 103. Jae  |  April 9, 2014 at 3:29 pm

    There is some News out of NC

  • 104. Tim  |  April 9, 2014 at 8:15 pm

    Exhaustive list of marriage equality lawsuits pending all across the country. From Lambda Legal (includes theirs and all the others). Bookmark-worthy:

  • 105. davep  |  April 9, 2014 at 10:16 pm

    Indeed! Thanks, Tim!

  • 106. Sagesse  |  April 9, 2014 at 8:26 pm

    More desperation.

    Ohio State Rep’s Homophobia Reaches Critical Mass [New Civil Rights Movement]

    "State Representative John Becker… has introduced a bill to impeach Judge Timothy Black."

  • 107. Mike in Baltimore  |  April 12, 2014 at 7:51 pm

    Good luck impeaching, via state law, a Federal judge. The ONLY legislative body able to impeach a Federal judge is the US House of Representatives, and if not convicted by the US Senate, everything is as before the impeachment – the person stays in office.

    Consider that all Federal judges are appointed for life. I'm sure there will never again be an issue the state might be interested in before that District judge (or others who work with him). (/sarcasm)

  • 108. jpmassar  |  April 9, 2014 at 8:59 pm

    Oops. Utah disassociates itself from Regnerus report.

    Utah files this supplemental letter in response to recent press reports and analysis of the study by Professor Mark Regnerus, which the State cited at footnotes 34 and 42 of its Opening Brief, and which addresses the debate over whether same-sex parenting produces child outcomes that are comparable to man-woman parenting. First, we wish to emphasize the very limited relevance to this case of the comparison addressed by Professor Regnerus.

    As the State’s briefing makes clear, the State’s principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents. Second, on the limited issue addressed by the Regnerus study, the State wishes to be clear about what that study (in the State’s view) does and does not establish.

    The Regnerus study did not examine as its sole focus the outcomes of children raised in same-sex households but, because of sample limitations inherent in the field of study at this point, examined primarily children who acknowledged having a parent who had engaged in a same-sex relationship. Thus, the Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements.

  • 109. sfbob  |  April 9, 2014 at 9:15 pm

    I suspect I see where they're going here. In saying this:

    "As the State’s briefing makes clear, the State’s principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents…"

    …what they're implying is they're afraid that if marriage equality becomes the law, the children of heterosexual parents will see it as normal. Either they will suggest that that is somehow undesirable on its own terms or else they are going to in effect make the normalization of same-sex relationships into a form of "homosexual propaganda," giving kids the idea that it's okay to be gay or lesbian which will give them implicit permission to "experiment with homosexuality" and ultimately "turn them gay."

    So they're cutting Regnerus loose simply because they have their own brand of crazy to proffer.

  • 110. StraightDave  |  April 10, 2014 at 6:08 am

    Now they're even lying about what their own briefs say.
    "… State’s principal concern…long-term impact on the children of heterosexual parents…"

    Didn't they waste numerous trees carrying on about the impact on children of SS parents? Have they suddenly decided that those kids will do just fine, or that UT no longer cares about them at all? (as if they ever did)

  • 111. Steve  |  April 10, 2014 at 7:33 am

    They just like to throw shit around in the hope that something sticks

  • 112. StraightDave  |  April 10, 2014 at 6:33 am

    sfbob might be onto something, bizarre as UT's logic would be.

    However, if seeing SS marriage as normal has supposedly undesirable effects on children, then wouldn't the kids of SS parents be infinitely more influenced by what they see in their own homes everyday than any of the kids with hetero parents?? And if that's such a bad thing, wouldn't UT be more concerned about the well-being of those kids, since they are the ones more at risk, by UT's reckoning?

    The fact that UT doesn't follow their own argument to its logical conclusion speaks volumes about what they really care about, and the absence of any rational justification.

    Come on, judges. Ask a couple of really hard questions today.

  • 113. Dr. Z  |  April 10, 2014 at 7:36 am

    Shorter version: "Won't someone PLEASE think of the (straight) children?!?"

  • 114. davep  |  April 9, 2014 at 10:22 pm

    …..wait…. so at the same time that the Utah AG files a "Petition For Emergency Extraordinary Relief with the Utah Supreme Court to allow the state to halt adoptions by LGBT parents already in motion", they also submit THIS, which throws their pal Regnerus under the bus? So on what basis are they pursuing this action to try to halt adoptions??

  • 115. StraightDave  |  April 10, 2014 at 5:24 am

    This is what happens when you choose to go down a wildly irrational path to begin with. Once it starts to unravel, your scrambling to pull it out of the fire looks even more idiotic. There is no way out and all they're doing now is throwing dumb on top of dumber…. and on the eve of oral arguments?!?!?!?!?
    Panic reigns in SLC. Love it!!

  • 116. JayJonson  |  April 10, 2014 at 8:02 am

    Well, at least they have been honest that they don't care a fig about the children of same-sex parents. That is the logic that unifies both the brief and "Petition for Emergency Extraordinary Really Urgent Relief to stop adoptions by lgbt parents."

  • 117. Zack12  |  April 10, 2014 at 8:06 am

    They viewed those children as "damaged" due to being raised by same sex couples, likely due to the belief the parents have "turned" them already and thus they don't care what happens to them.
    I should also note that in many cases, the kids being adopted are the ones no one else wants, so it doesn't shock me they aren't being shown any compassion.

  • 118. davep  |  April 10, 2014 at 11:40 am

    …. but if they want to argue that they don't care a fig about the children of same sex parents, again, where's their basis for the bizarre emergency request to halt adoptions by same sex parents? These guys just make no sense at all, and every time the submit something they shoot themselves in the foot.

  • 119. Rick O.  |  April 10, 2014 at 5:13 am

    Well, a good example of how Judge Friedman's choice of an actual trial (with witness Regnerus demolished on the record) is having a far-reaching, positive, effect.

  • 120. StraightDave  |  April 10, 2014 at 5:48 am

    "…given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents. "

    Since when do kids get to choose their parents?
    Exactly what alternatives do they have available? Apparently they do have some, but just not SS parents?!?!?!? ("not be one of the…")
    OK, maybe not "normally", but sometimes??? What the hell are they saying?

    Why even bother to write such a nonsense sentence in the first place? Is this the logic by which they gracefully excuse themselves from Regnerus?
    Not only is your own orientation a choice (per UT), but the orientation of your parents now is….. only sometimes, just not normally.

    Clock is ticking down……
    No time to proofread, edit, ask for a 2nd opinion, maybe think….

    I absolutely must set aside quiet time tonight to listen to the recorded hearing.

  • 121. Dr. Z  |  April 10, 2014 at 6:22 am

    I've reread this newest filing several times now, thinking that somehow a thread will emerge from the word salad. All I've come away with is the impression that the state of Utah has used its bag of taxpayer dollars to hire Lionel Hutz, Attorney at Law.

    "Your honor, I'd like to move for a…bad…court…thingie."

  • 122. Jesse  |  April 10, 2014 at 11:10 am

    "I absolutely must set aside quiet time tonight to listen to the recorded hearing. "

    I'll be doing the same with a glass of wine in-hand.

  • 123. Chris M.  |  April 10, 2014 at 6:57 am

    I had to do a double-take reading this. What they are saying is that children in same-sex households are in all likelihood no worse off than children in opposite-sex households. So gay marriage doesn't negatively impact those children who are most directly affected. But it has terrible adverse effects on children in opposite-sex households who barely come in contact with same-sex parents? And those effects that I doubt they can even articulate, much less prove, are so bad that the state has to massively infringe on our rights? Now that's rational, even compelling logic by Utah standards…

  • 124. StraightDave  |  April 10, 2014 at 8:46 am

    That is what they are saying, hoping that it gets swallowed whole with questioning. I can't wait to hear them clear up any confusion the 10th Circuit might have about it today.

  • 125. StraightDave  |  April 10, 2014 at 8:48 am

    *with NO questioning

  • 126. Pat  |  April 10, 2014 at 1:59 am

    What would be the most likely delay before a ruling is issued for both UT and OK appeals? Could it be just a couple of weeks, like for some recent lower court rulings? Or is it much more likely to take 3-4 months? (or much more?)

    Another question: since the panel is the same for both OK and UT cases, will they really be writing a separate decision for each case? It already seems surprising that they would hear both cases separately, since as far as I can tell, they are exactly the same, aren't they? Are there any specificities of each case?

  • 127. Zack12  |  April 10, 2014 at 6:47 am

    On a different note, there will be a hearing on whether to confirm Michelle Friedland to the 9th circuit.
    If you want to know how imporant getting rid of the nuclear option was, under the old rules there is no way she would even be up for a vote.
    She helped represent Prop 8 victims and has been a long supporter of LGBT rights. No way she would have gotten through before.
    The people fighting against her nomination are the same ones who have no qualms about nominating the most far right person they can find to be on the bench but will fight tooth and nail against even a moderate.

  • 128. Lee  |  April 10, 2014 at 9:28 am

    Breaking news: A federal judge this morning granted an emergency request to force Indiana to immediately recognize the marriage of a lesbian couple who wed in Massachusetts. The order will last for 28 days. A preliminary injunction hearing is scheduled at that time. The couple argued that the emergency request for recognition is about dignity and recognizing a family.

  • 129. Lee  |  April 10, 2014 at 9:32 am

    Lambda Legal has prepared a very helpful chart listing all of the cases by state, circuit, kind of claim, case name, attorneys, and status.

  • 130. seannynj  |  April 10, 2014 at 10:22 am

    Very nicely done but someone needs to remind Lambda that Puerto Rico is not a state. It's a commonwealth.

  • 131. RAJ  |  April 10, 2014 at 11:58 am

    Listening to the 10th circuit arguments now — at about the 18 minute mark Schaerr concedes that children of same-sex couples would be better off if their parents were married!

    He goes on to fog and try to muddy the waters, but I thought, shades of Blankenhorn . . .

  • 132. Rose  |  April 10, 2014 at 12:00 pm

    I want to hear the arguments……do you have a link?

  • 133. RAJ  |  April 10, 2014 at 12:11 pm

    In case you didn't see Kevin's post above (Thank you Kevin).

  • 134. StraightDave  |  April 10, 2014 at 12:10 pm

    I can't wait til he gets to the part where the children of hetero couples will lose something, so that counts more. Isn't that what he just put in writing? …..waiting……

  • 135. Kevin  |  April 10, 2014 at 12:03 pm

    The argument audio is here:

  • 136. Matt Rogers  |  April 10, 2014 at 5:57 pm

    I'm a little late to the races, as I'm still thinking about the 6th circuit en banc issue.

    My concern is that the state is trying to have the conservative 6th circuit hear the case en banc so that the next step will be the Supreme Court. This, it seems, would have four possible effects.

    If the 6th circuit overturns the Michigan ruling, the couple will then appeal to the Supreme Court. That court will have two unsavory options. First, it can decline to hear the ruling, which would leave the 6th circuit's decision in place and be a setback for marriage equality. Second, it can hear the case and have a chance to bring marriage equality to the entire country, but sooner than it feels comfortable with. So, the court may decide to punt and render a less favorable decision than it would like.

    If the 6th circuit upholds the Michigan ruling, the state will appeal to the Supreme Court. Again, that court will have a chance to grant marriage equality nationwide but may feel constrained to render a less favorable decision. The alternative would be to reverse the Michigan ruling, which would be a real setback.

    Thus, the alternatives could amount to a setback, or a limited ruling in our favor. If the 6th circuit allows a panel to hear the case, other circuits could move ahead of the 6th. The Supreme Court could then rule decisively in our favor, an outcome that Michigan may be trying to avoid.

    Could the state's real motive be judicial economy? Yes, but my sense is that lawyers want to win. Failing that, they want the outcome that's best for them and their clients. I'm guessing that this desire is what's motivating them here.

    While it could be worse, I fear a (relatively) negative outcome if the state gets its way.

  • 137. Ragavendran  |  April 11, 2014 at 10:01 am

    Plaintiffs oppose:

  • 138. sfbob  |  April 11, 2014 at 11:25 am

    Yes. Their arguments make very good sense. And I think simply as a matter of courtesy to the plaintiffs it's in our best interests to support those arguments even if we might find some reasons to disagree with them.

  • 139. Ragavendran  |  April 11, 2014 at 11:55 am

    Yeah – the plaintiffs do make valid points, and I support them in their decision to oppose, but in weighing the tradeoff, my personal opinion is that a 3-judge panel is okay only if the Sixth Circuit grants the request for an expedited schedule.

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  • 141. Chris M.  |  April 12, 2014 at 5:51 pm

    I had a somewhat disconcerting experience today: after the district court ruling overturning the marriage ban, I decided to fly a rainbow flag on my mailbox post, which sits on a well-traveled road just outside of Ann Arbor, the liberal bastion of Michigan. When the decision was stayed, I decided to keep it up, until we have full marriage equality. When I went outside this morning to get mail, someone driving by shouted epithets and obscenities at me – I couldn't make out the license plate, but the back of the car was decked out in Jesus and "pro life" stickers. All I could think was that Jesus would in all likelihood have not behaved like they did.

  • 142. Mike in Baltimore  |  April 12, 2014 at 9:06 pm

    Don't feel real bad.

    Just outside Baltimore City is the town of Arbutus, where many of the residents would not disagree with the KKK, and most residents are 'proud' that the town is the birthplace of former governor boobie ehrlich.

  • 143. Ragavendran  |  April 15, 2014 at 9:22 pm

    In an interesting twist, Plaintiffs in Obergefell, the Ohio death certificate appeal before the Sixth Circuit, have sought to intervene by means of an amicus memorandum in support of the Plaintiffs in De Boer, the Michigan appeal, in urging the Sixth Circuit to reject Michigan's request for an initial en banc hearing:

    "The Obergefell plaintiffs oppose en banc consideration and urge the Court to proceed in the normal course through assigned panels. In the alternative, the Obergefell plaintiffs ask that the Court not hold Obergefell in abeyance. Further in the alternative, the Obergefell plaintiffs ask that the Court also consider Ohio's appeal en banc."

  • 144. Tim  |  April 15, 2014 at 9:52 pm

    Me confoosed. Any theories on this? Especially asking to consider Ohio's appeal en banc but not Michigan's.

  • 145. Ragavendran  |  April 16, 2014 at 7:50 am

    I think they are concerned that if the Sixth Circuit grants De Boer an initial en banc hearing for "judicial economy" reasons, then the logical next step is to stay proceedings in one or more of Obergefell, Bourke, and Tanco until De Boer is decided. So they are asking the Sixth Circuit not to grant an initial en banc hearing. However, in the event the Sixth Circuit does grant the initial en banc hearing, they are requesting that (a) their appeal is not stayed, and (b) their appeal should also be considered en banc.

  • 146. Tim  |  April 16, 2014 at 8:40 am

    Helpful. Thanks.

  • 147. Ragavendran  |  April 16, 2014 at 11:14 pm

    And today, the Sixth Circuit granted their motion to file their amicus memorandum in support of the Plaintiffs' response to the State's request for an initial en banc hearing, meaning that they will take their arguments under advisement.

  • 148. Ragavendran  |  April 17, 2014 at 1:28 pm

    Another twist. Roberta Kaplan, of Windsor fame, has informed the Sixth Circuit of an intent to intervene in Michigan's DeBoer appeal on behalf of her clients Equality Ohio and Equality Ohio Education Fund. She, contrary to the Plaintiffs, supports an initial en banc hearing, but for a very different reason than that offered by the State of Michigan. Her reasoning is as follows. Current Sixth Circuit precedent dictates that rational basis review is the standard for discrimination based on sexual orientation. (On a side note, however, she believes that it is no longer controlling since Windsor came down, just like the Ninth Circuit found in Smithkline.) She believes that heightened scrutiny should apply, and that the Sixth Circuit has to sit en banc to reverse the existing precedent and provide the requested relief. Note that her motion to intervene hasn't been filed yet – this is just a letter informing the Court of her intent to file one.

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