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Equality news round-up: Tenth Circuit update, new Michigan case, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

– Yesterday, when a federal judge declared unconstitutional Ohio’s laws barring recognition of same-sex marriages performed outside the state, the judge asked for briefs on whether he should issue a stay pending appeal. The plaintiffs filed their opposition to a stay, and that can be read here.

– As expected (because of a previous order), the same three-judge panel that heard Kitchen v. Herbert last week in the Tenth Circuit will hear Bishop v. Smith, the Oklahoma case, this week.

– India’s Supreme Court has ruled that transgender people will be recognized.

– The ACLU has filed a lawsuit in Michigan seeking to have legally-performed same-sex marriages recognized by the state, after state officials put recognition of those marriages on hold.

Thanks to Kathleen Perrin for these filings


  • 1. Pat  |  April 15, 2014 at 8:42 am

    I actually wonder how the hearing on Bishop can possibly differ from Kitchen. Same panel and same issues. Sure, each plaintiff might have a different personal story, but that's about it. So unless I'm missing something, the same panel will once again have to sit through the very same arguments over again? Hem I'm sure the judges are thrilled to hear that case…

  • 2. NetAmigo  |  April 15, 2014 at 8:46 am

    Possibly. However, the arguments do get better. I think last week the plaintiff's lawyer stumbled slightly when questioned aggressively about animus. I'll bet the lawyers this week will be well-prepared to respond if the topic comes up again.

  • 3. StraightDave  |  April 15, 2014 at 10:07 am

    I agree, there is room for improvement. Plus the OH ruling may provide some good material for us. On the other hand, the state's case has no upside.

  • 4. DrHeimlich  |  April 15, 2014 at 8:58 am

    I would expect the following:

    In the Kitchen hearing, Holmes seemed to indicate that he thought this case might turn on scrutiny. Under rational basis, the State wins; under any level of heightened scrutiny, the plaintiffs win. I expect Lucero and Kelly to each ask more pointed questions about whether heightened scrutiny or rational basis should apply, respectively. Possibly even more pointed questions from Lucero pointing out how the State even loses on a rational basis level.

    I expect many more questions about standing in this case. Standing got only a few questions from Holmes over a minute or two. But the Bishop case has a LONG history of changing defendants, appeals and remands, and a lower-court ruling stating that some of the plaintiffs in this case DON'T have standing. All of this differentiates it from Kitchen.

    And, as NetAmigo points out, expect the arguments to get better. You KNOW these lawyers listened to the recordings of Kitchen, and paid very careful attention to which arguments seemed effective and ineffective against which judge. Expect these lawyers to have carefully refined their points accordingly.

  • 5. Ragavendran  |  April 15, 2014 at 9:22 am

    There is an appeal and a cross appeal in this case. Also, DOMA section 2 is being challenged, if I recall right. Standing will be key in the DOMA challenge. In short, more complicated case than Kitchen but only half as much argument time (15 minutes per side).

  • 6. Christian  |  April 15, 2014 at 2:18 pm

    I still don't understand how the district court managed to uphold Section 2 of DOMA considering that it singles out 1 particular class of citizens for discrimination in state marriage policies and how DOMA both sections 2 and 3 were both created under great amounts of animus as was displayed in floor debates and in the House committee report

  • 7. sfbob  |  April 15, 2014 at 2:38 pm

    If I understand things correctly, the purpose behind Section 2 of DOMA was to provide support for a state to invoke the so-called "public policy exception" to the Full Faith and Credit Clause. And if I'm not mistaken (I may well be; please note) the district court did not so much uphold Section 2 as say it wasn't relevant.
    As I've noted elsewhere, the moment Section 2 is challenged directly it is going to fall since, just like any other piece of legislation, it is at least subject to rational basis review. And as every single court since Windsor has ruled, there is no legitimate basis which can be ascribed to Section 2 of DOMA. Its sole and entire purpose is to provide states with an excuse to disregard one specific set of otherwise legal marriages.

  • 8. Paul  |  April 16, 2014 at 8:29 am

    DOMA Section 2 is like me writing a law saying that you are free to drive whatever speed you wish. That's kind of obvious. However, you still have to abide by speed limit laws. If you choose to speed, you will probably get a ticket.

    Section 2 suffers the same fate. If states choose to discriminate as DOMA section 2 appears to allow, then they still need to comply with the Constitution. Most don't. I'm not sure if there is a way to deprive gay couples of marriage and still comply with the Constitution, but concevably there could be (perhaps a state ban against all infertile couples), no state has done it yet for obvious political reasons.

  • 9. DrHeimlich  |  April 15, 2014 at 2:40 pm

    That was certainly a weird part of the district court ruling, and I'm not sure I completely understood it.

    From what I read, the judge didn't actually uphold section 2 of DOMA; instead, he ruled that because the law itself doesn't actually order a State to do anything (in fact it says they don't HAVE to do anything, in regards to out of state marriages), it's not actually causing an injury to the couple in the case. Put another way, even if DOMA section 2 didn't exist, Oklahoma still wouldn't be recognizing the couple's marriage in this case. Therefore, there is no injury the federal government can redress here, and thus the affected couple has no standing to sue.

    But if I understand the case history correctly, the only reason the couple in question here is suing the target they are is because the appeals court forced them to amend their complaint. It's a Catch-22 situation of "you're suing the wrong people… but you can't sue the people we told you to because they're not the ones harming you."

    Perhaps the hearing on Thursday will be enlightening on this strangeness?

  • 10. Dr. Z  |  April 15, 2014 at 5:39 pm

    I got the impression that the Oklahoma plaintiffs walked right into the crossfire of a longstanding dispute between the district court judge and the 10th Circuit on the question of standing. That would explain the strangeness of this case having taken nearly 10 years to reach this stage.

  • 11. Ragavendran  |  April 15, 2014 at 3:08 pm

    DrHeimlich is correct. The district court did not uphold Section 2 of DOMA. It dismissed that part of the complaint for lack of standing. Similarly, the district court dismissed the part of the complaint challenging the marriage-recognition part of the amendment. The Plaintiffs are appealing these portions of the ruling as well, claiming that they do have standing. Hence the cross-appeal.

  • 12. sfbob  |  April 15, 2014 at 3:47 pm

    I'd assume that Section 2 of DOMA would become pertinent if some state were to resist recognizing an out of state same-sex marriage using that sole remaining section of DOMA (apart from Section 1, which consists of nothing more than the title) as justification for doing so.

  • 13. DrHeimlich  |  April 15, 2014 at 9:00 am

    The Ohio brief does make a particularly compelling case against a stay. If any case has a chance of snapping the string of stayed rulings, I think this is it. It would be very interesting to see if the Sixth Circuit or SCOTUS then stepped in.

  • 14. ebohlman  |  April 15, 2014 at 12:44 pm

    There's also the fact that Judge Black's prior Obergefell ruling, which this one is significantly based on, is the only unstayed final order in the post-Windsor series of cases. Of course that's partially because of its very narrow scope and application to especially time-sensitive matters, but the plaintiffs' brief's point about how the need for recognition normally arises in a just-in-time, as-needed context is pretty compelling.

  • 15. Michael Grabow  |  April 15, 2014 at 12:54 pm

    Tennessee as well, no?

  • 16. ebohlman  |  April 15, 2014 at 12:56 pm

    That's a preliminary injunction, not a final order; the case hasn't been decided yet.

  • 17. ebohlman  |  April 15, 2014 at 12:55 pm

    Ohio's motion to stay is now up at

    It doesn't really address the four-factor test, just claims all the stays in the other cases as precedent. Doesn't ask for a stay on the ruling as applied to the specific plaintiffs, only on application to others. Doesn't address issue of amending birth certificates for kids adopted out-of-state, so presumably Judge Black won't stay that one (he said he was disinclined to stay it).

  • 18. Michael Grabow  |  April 15, 2014 at 1:11 pm

    As in Bourke, this Court’s order is a momentous change in Ohio’s marriage law, that will require widespread—but in light of appeal, possibly temporary—changes in Ohio law. The public interest and other parties are not served by such confusion. In addition to the harms that would come with confusion in various governmental settings, a special harm arises if same-sex couples not party to this case prematurely rely on this Court’s decision, and spend time and money based on that reliance. Some might change estate plans or other arrangements. Some might even travel to other States to marry, counting—prematurely— upon Ohio’s recognition of their marriages when they return. Indeed, news reports describe efforts to do just that, based on this case. “Columbus gays travel to Chicago to marry,”

    Oh, they're SO concerned about people potentially wasting their time and money. What nice guys!!

    "…Widespread change…sweeping change…momentous change…"

    Is it that big of a change? Really? Is it??

  • 19. Michael Grabow  |  April 15, 2014 at 1:22 pm

    "At least seven states are involved in lawsuits seeking to overturn state bans on same-sex marriages."

    In other news, there are also at least 10,000 people currently living in the United States…

  • 20. JayJonson  |  April 15, 2014 at 1:27 pm

    Somewhat off-topic, but interesting on tax filing day, an article about the hoops married gay and lesbian couples have to go through filing their taxes if they live in a state that does not recognize their marriage:

  • 21. Zack12  |  April 15, 2014 at 1:34 pm

    I've read where some couples are filing as married and more or less daring the state to come after them.

  • 22. StraightDave  |  April 15, 2014 at 2:09 pm

    If they are legally married (somewhere), then the wind surely is at their backs now. The odds are that most states will not win their case, if any. By pursuing taxpayers, the states will only hasten the demise of their own laws. Go for it!

  • 23. Rick O.  |  April 15, 2014 at 2:33 pm

    Colorado Dept. of Revenue saw trouble coming (CO being one of many states basing income tax on federal returns) and the state did the sensible thing – added joint filing status to last year's civil unions. Solving this potential accounting and legal nightmare cost the state nothing, and attracted all of 1, count 'em 1, Republican vote.

  • 24. Zack12  |  April 15, 2014 at 3:05 pm

    Bottom line, in many of the state parties, Republicans are going to be against gay rights, simple as that.
    Any moderates who think otherwise have mostly been purged for the most part.

  • 25. Steve  |  April 15, 2014 at 3:14 pm

    It's the exact reverse of what happened under DOMA when a couple lived in a marriage equality state.

  • 26. sfbob  |  April 15, 2014 at 3:44 pm

    I was going to say just that but decided not to. Friends of mine had their accounts prepare their CA tax returns and the federal returns, including with latter a note stating that he'd complied with the law as best it could be understood. It really was a mess, particularly in community property states (such as California). The IRS had to issue guidance which in effect violated DOMA because failing to do so would have violated other portions of the Internal Revenue Code.

  • 27. Eric  |  April 15, 2014 at 7:21 pm

    The IRS isn't quick about fixing their harm, either. They have had our DOMA caused, amended returns for 24 weeks now, without issuing our refunds. One of our returns, they unilaterally rejected with no notice. When I called to find out why, they said that we didn't include a copy of our marriage license to prove that we were actually married. I wonder how many straight couples are required to submit their marriage license, to prove they are married, when they file?

  • 28. ebohlman  |  April 15, 2014 at 7:56 pm

    Er, how many straight couples have had to amend previous returns to change the filing status from single to married?

  • 29. Dr. Z  |  April 17, 2014 at 7:46 am

    That's why there are automated checks in place to flag those returns for an audit.

  • 30. Dr. Z  |  April 15, 2014 at 8:13 pm

    Interesting. We had a hunch that SCOTUS would rule in our favor, so this time last year we filed for a prospective refund for the tax year 2009. Just about three weeks ago we got a letter from the IRS indicating we would be audited because we had changed our filing status from single to married filing jointly for a tax year prior to the Windsor decision. That letter arrived just before we visited our tax preparer to file amended returns for 2010, 2011, and 2012 so we took the precaution of making several copies of our Canadian marriage license from 2005 and submitting them with our returns.

    I am inclined to suspect automated IT system checks rather than evil intent on the part of the IRS. They have had a series of budget cuts over the years that put a premium on processing by actual human beings.

  • 31. Rose  |  April 16, 2014 at 12:32 am

    Hi Eric……back in 2011, my wife filed her tax return like she had in 2010, but for some reason the IRS decided to audit her return……we have spent the last 3 years fighting with the IRS……we also enlisted the Tax Advocate group from Senator Diane Feinstein's office……and today we FINALLY got our refund and the IRS had to pay is interest as well.

    I recommend (if you live here in California) that you enlist their help as well:-)

    Good Luck:-)

  • 32. Lynn E  |  April 16, 2014 at 12:51 am

    Great news, Rose. I work for the IRS, and even with DOMA in place, the situation in Community Property States like CA complicated the Federal Tax treatments of many shared assets. Glad to hear that your issue was resolved, just sorry that it took 3 years.

  • 33. Lymis  |  April 17, 2014 at 5:15 am

    Our amended returns went through with only one minor glitch – whoever processed them did one year out of order and managed to make the system think I hadn't paid any taxes that year, so the slapped me with three years of back interest – a phone call and a competent agent cleared that up.

    What irks me, particularly, though, is that even though DOMA was declared unconstitutional, we were only allowed to amend three years of prior returns, not all the ones we filed during the length of our legal marriage. The law should never have been passed, so we would have filed all those years as married but were not allowed to. But we can only correct the last three years. Yet another jab at us to prove we don't count quite the same as straight people.

    But the three years sure made a hell of a difference.

  • 34. Dr. Z  |  April 17, 2014 at 7:44 am

    The only way you could have amended more that three years would have been to file a notice of a prospective refund prior to Windsor. But that most likely would have given you one additional year, because prior to 2013 who could have guessed when or how SCOTUS was going to deal with this case?

    Technically we were also entitled to a refund of the imputed tax I was socked with for carrying my husband on my insurance, but the IRS did not require employers to report that for years prior to 2013 so mine didn't. We would have had to figure it out ourselves, a surefire way to get audited and slow everything down.

    On the advice of our tax preparer we submitted each year in its own envelope. She said the IRS doesn't expect to receive tax returns for multiple years in the same envelope, and it was best not to confuse them. But it didn't occur to me that might mean they'd process them in the wrong order…

  • 35. DaveM  |  April 15, 2014 at 6:47 pm

    Even if you might think you're off topic, you're not. Remember, Windsor was a tax case – and "The power to tax is the power to destroy." (C.J. Marshall, McCullough v. Maryland, quoting appellant counsel Daniel Webster.)

  • 36. JayJonson  |  April 16, 2014 at 8:14 am

    Yes, of course. Thanks for reminding us that it was a tax issue at the heart of the Windsor suit! My husband and I had to file 5 tax forms this year. I resent not only the extra effort and expense, but the indignity of it as well. It seems so petty for a state like ours that relies on the IRS data to force us to go through a charade (and a lie) in order to pay them money.

  • 37. jpmassar  |  April 15, 2014 at 2:54 pm

    Malta’s Parliament passed a bill to legalize gay and lesbian civil unions, allow for same-sex couples to adopt, and introduce anti-discrimination constitutional amendment that will protect “sexual orientation.” Although it will not be called marriage, same-sex couples will be granted the same rights as married heterosexual couples. The law will also allow for gay and lesbians who choose to marry outside of the country to have their unions recognized. It will also allow for couple’s to adopt.

  • 38. Ragavendran  |  April 15, 2014 at 3:16 pm

    Defendant Himes "respectfully requests that this Court do as it is inclined to do."

  • 39. Retired lawyer  |  April 15, 2014 at 3:52 pm

    No surprises here.

  • 40. ebohlman  |  April 15, 2014 at 4:41 pm

    Some interesting statistics on how quickly US Circuit Courts move. These are median times from the filing of notice of appeal to disposition (ruling on the merits or dismissal for procedural reasons), for the 12-month period ending last September, in order from fastest to slowest:

    Fourth: 5.0 months ("The Rocket Docket")
    Eighth: 5.8 months
    Third: 6.3 months
    Eleventh: 7.6 months
    Seventh: 8.0 months
    Tenth: 8.2 months
    Fifth: 9.3 months
    Sixth: 10.1 months
    Second: 10.4 months
    First: 11.2 months
    DC: 12.6 months
    Ninth: 13.3 months (surprise, surprise)

    Circuits where we have appeals pending are in bold.


  • 41. Pat  |  April 16, 2014 at 9:21 am

    Great stats! So the counter starts from the "filing of notice of appeal to disposition (ruling on the merits or dismissal for procedural reasons)"
    When was that starting date for our current cases currently under appeal? (Kitchen, Bishop, Bostic, De Leon, DeBoer and Sevcik)

  • 42. DrHeimlich  |  April 16, 2014 at 10:09 am

    In chronological order:

    Sevcik (Nevada, 9th Circuit) – Dec. 3, 2012
    Kitchen (Utah, 10th Circuit) – Dec. 20, 2013
    Bishop (Oklahoma, 10th Circuit) – Jan. 16, 2014
    Obergefell (Ohio, 6th Circuit) – Jan. 16, 2014
    Bostic (Virginia, 4th Circuit) – Feb. 24, 2014
    De Leon (Texas, 5th Circuit) – Feb. 26, 2014
    Bourke (Kentucky, 6th Circuit) – Mar. 18, 2014
    Tanco (Tennessee, 6th Circuit) – Mar. 18, 2014
    DeBoer (Michigan, 6th Circuit) – Mar. 21, 2014

  • 43. Ragavendran  |  April 16, 2014 at 10:19 am

    I suspect that the filing of the notice of appeal in all these cases would have been within a week of the corresponding district court judgment (especially the recent ones). According to PACER, here are the NOA (Notice of Appeal) filing dates of the appeals cases that are still open:

    Fourth: Bostic: February 24, 2014
    Fifth: De Leon: February 27, 2014
    Sixth: Obergefell: January 16, 2014
    Sixth: Bourke: March 18, 2014
    Sixth: Tanco: March 18, 2014
    Sixth: DeBoer: March 21, 2014
    Sixth: Henry: April ??, 2014 (quite soon, possibly within this week)
    Ninth: Jackson: September 7, 2012
    Ninth: Sevcik: December 3, 2012
    Tenth: Kitchen: December 20, 2013
    Tenth: Bishop: January 16, 2014

    Note that both Jackson and Sevcik were intentionally put on hold from January 7, 2013 to July 18, 2013 in anticipation of the Windsor and Hollingsworth decisions from SCOTUS. So, I'd probably deduct 6 months from the age of these two appeals.

  • 44. Pat  |  April 16, 2014 at 3:37 pm

    Thanks Ragavendran and DrHeimlich!
    So IF each case now under appeal was a perfect "median case", a ruling would occur on these dates, in chronological order.

    Sevcik (Nevada, 9th Circuit) – mid-January 2014 (though, as Ragavendran mentioned, this is pushed to July 2014 if we deduct the time the case was put on hold)
    Bostic (Virginia, 4th Circuit) – late July 2014
    Kitchen (Utah, 10th Circuit) – late August 2014
    Bishop (Oklahoma, 10th Circuit) – mid-September 2014
    Obergefell (Ohio, 6th Circuit) – mid-November 2014
    De Leon (Texas, 5th Circuit) – early December 2014
    Bourke (Kentucky, 6th Circuit) – mid-January 2015
    Tanco (Tennessee, 6th Circuit) – mid-January 2015
    DeBoer (Michigan, 6th Circuit) – late January 2015
    Henry (Ohio, 6th Circuit) – February 2015

    Actually we could probably refine these estimates knowing the median deadline between *hearing* and ruling (since it's clear by now that there is no way a ruling in the Sevcik case could be issued this summer, as they still haven't bothered setting a hearing date)

  • 45. DrHeimlich  |  April 16, 2014 at 3:45 pm

    Remember that many of these cases have been accepted on an expedited schedule. Granted, that term itself means different things in different circuits, but it doesn't seem unreasonable to expect that opinions in Bostic in the 4th and both Kitchen and Bishop in the 10th (which would surely be released on the same day) could come in June. At least, that's when I'll start getting antsy.

    Then we find out if the next step is en banc or SCOTUS.

  • 46. Stefan  |  April 16, 2014 at 7:13 pm

    Same with Sevik in the 9th, assuming they'll hear arguments in May.

  • 47. Ragavendran  |  April 17, 2014 at 10:54 am

    Speaking of the 9th, the simultaneous briefs in Smithkline are due today, if I recall correctly. It'll be interesting to see what the parties think about an en banc rehearing!

  • 48. jdw  |  April 17, 2014 at 9:58 am

    En banc seems unlikely if we win the panel's decisions:

    4th: 9-5 Dem (1 vacant)
    10th: 6-4 Dem (1 vancant)

    They aren't really Circuits that would benefit the other side to go en banc.

    Unless the goal would be to slow down the process and hope for a favorable ruling in one of the other Circuits (5th & 6th). But that would run the risk of Sevcik picking up pace to beat the 5th & 6th cases, and we probably have a good guess on how a 9th panel would rule unless we get a very bad luck of the draw.

    All that said, one doesn't get a sense of any unified strategy on the side of the Bad Guys… or frankly any strategy at all.

  • 49. W. Kevin Vicklund  |  April 17, 2014 at 10:11 am

    Well, other than delay the inevitable as long as possible.

  • 50. Stefan  |  April 17, 2014 at 11:26 am

    At this point they don't seem that interested in delaying things, unlike the Protect Marriage group that defended Prop 8.

  • 51. FYoung  |  April 17, 2014 at 2:43 am

    Based on Pat's predictions above, I wouldn't expect a circuit split until the Fifth Circuit decides in December 2014. That seems late for the SCOTUS to grant certiorari and issue a decision in the 2014-15 term. It suggests to me that the SCOTUS decision won't come until June 2016. What do you think?

  • 52. Dr. Z  |  April 17, 2014 at 7:51 am

    The Eighth Circuit already ruled against us in 2006.

  • 53. DaveM  |  April 17, 2014 at 8:22 am

    Great point, Dr. Z.

    And it would seem to me that recent (district court) decisions would give ample ground to overturn CEP v. Bruning – which used rational basis to conclude the amendment "serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters of § 29 were motivated solely by a desire to punish disadvantaged groups."

    Now that Regnerus has been destroyed, it's hard to use rational basis to "steer[]… procreation into marriage".

  • 54. sfbob  |  April 17, 2014 at 8:32 am

    There's the destruction of Regnerus, but the Windsor ruling had already dismissed that argument and all subsequent decisions have given it all the credence it ever deserved (which of course is none at all).

  • 55. grod  |  April 16, 2014 at 10:53 am

    Pat, I often reference your chart, and you keep it up-to-date. Barton and Bishop is likely the longest case dating back to November 3 2004. .

  • 56. ragefirewolf  |  April 16, 2014 at 9:44 am

    The link to the article about the ACLU has some seriously nasty comments. :-/

    You'd think they'd moderate that a bit more @ a CBS website.

  • 57. Ragavendran  |  April 16, 2014 at 10:30 am

    An update on the Bostic appeal: There is now an unopposed motion before the Fourth Circuit asking for additional argument time, citing the recent such successful motion in Kitchen. This would add 10 minutes per side, extending the total argument time to 1 hour.

  • 58. grod  |  April 16, 2014 at 11:22 am

    Kitchen does leave you with a sense that prepared text of more than a minute are for fallback use and that in the Q&A, the lawyers must be salient, but brief and credible. Peggy Tomsic being second had an advantage over Gene Schaerr, who would distract any listener if not himself with his frequent throat-clearing. Would more time been of assistance to Judge Holmes? Influence Kelly or Lucero? But to assume similarity of issues is to miss the difference between Barton and Bishop cases themselves. Give them the 10 minutes!

  • 59. Kevin  |  April 16, 2014 at 11:53 am

    I once had an opportunity to ask a Ninth Circuit judge whether oral argument had ever caused him to alter his opinion of a live case. His response was that it had, but only in circumstances where the attorneys were able to point to specific facts on the record that were either insufficiently stressed or explained in briefing. Thus, I doubt that additional time will influence any judge or justice either way in a high profile case, such as this, where any credible jurist will have undoubtedly read all the briefs very carefully.

  • 60. Retired lawyer  |  April 16, 2014 at 1:32 pm

    Your conclusion is correct. These important cases on appeal will be decided on the briefs. Most, perhaps all, lawyers with appellate experience in the federal courts regard oral argument as a quaint ritual that judges and counsel go through because it is an expected and time-honored custom. But it is no more meaningful than the quill pens set out on counsel tables at the Supreme Court or the cutaway coat and striped trousers worn by the Solicitor General and his deputy and assistants.

  • 61. Tim  |  April 16, 2014 at 8:35 pm

    This article suggests Judge Holmes may be inclined to defer "to the democratic process" rather than intervene. That's the first I've heard of that regarding him from the hearing. For those that listened, did you get that from his comments and questions from the Utah hearing?

    Holmes, appointed by President George W. Bush, said that while the gay-marriage arguments could be akin to those over interracial marriages two generations ago, they are a new concept for the courts, which should perhaps defer to the democratic process unless there are pressing reasons to intervene.

  • 62. Zack12  |  April 16, 2014 at 9:01 pm

    Blacks and whites wanting to marry each other was a new concept for the courts as well.
    As for refering to the Democratic process, Judge Holmes likely would NOT be where he is if people had been allowed to vote on his rights.

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

    What a ridiculous thing for a Supreme Court judge to say. Is he not aware that the purpose of the court is to intervene when 'the democratic process' results in a law that violates the Constitution?

  • 64. Zack12  |  April 16, 2014 at 10:16 pm

    Indeed… sad to say but if this is his mindset, it will 2-1 against us I'm afraid.

  • 65. Dr. Z  |  April 17, 2014 at 7:56 am

    SCOTUS already addressed this in Romer and Windsor. An anti-gay ballot initiative is invalid if the only justification for passing it is the bare desire to harm gay people.

  • 66. DaveM  |  April 17, 2014 at 8:31 am

    And as noted above, the 8th tried to distinguish CEP v. Bruning from Romer on the (pre-Windsor) rational basis of "responsible procreation." It's hard to see how Bruning would stand today – but SCOTUS must have the final say, in June of 2015.

  • 67. Tim  |  April 16, 2014 at 10:50 pm

    DrHeimlich? Ragavendran? You listened in person or via audio. Did you pick up on Holmes inferring this?

  • 68. Tim  |  April 16, 2014 at 10:56 pm

    I'll add lots of lawyer-smart people follow cases on below site and I've not seen them mention it there as well. But I have seen Kathleen Perrin say she was skeptical of how journalists cover court cases often mischaracterizing them in their reporting.

  • 69. Ragavendran  |  April 16, 2014 at 10:56 pm

    No, I don't recall hearing that (from any of the judges). Neither did my lawyer friend who was also listening. I plan on listening to the audio of both oral arguments in tandem this weekend and will watch out for that.

  • 70. Tim  |  April 16, 2014 at 11:11 pm

    Cool. I did some more internet sleuthing and it seems to have started with reporting by Nicholas Riccardi from Associated Press. The LGBTQ Nation piece I linked to above is also AP. I wish the Prop 8 Facebook Group would accept my 2 week old request to join their group and I would also ask them and share here, but alas they haven't, 😉

  • 71. bythesea  |  April 17, 2014 at 8:22 am

    I would guess the delay is due to the coverage of the 10th Circuit cases and others right now.

  • 72. jdw  |  April 17, 2014 at 10:07 am

    If you read the piece a little more carefully, it looks like the writer (either Kristi Eaton whose byline it is, or Riccardi who contributed) in that passage is transcribing the analysis passed along to him/her by Alliance Defending Freedom senior counsel Byron Babione. So… not to worry.

  • 73. DrHeimlich  |  April 17, 2014 at 9:10 am

    My take from sitting in the courtroom during the Kitchen appeal was that Holmes was not seriously considering the "let the voters decide argument."

    Holmes definitely questioned both lawyers and tried to poke holes in their arguments. But it seemed to me that his questions of the lawyer representing Utah were MUCH more pointed. How is this not just like Loving? Don't you lose automatically if this isn't rational basis?

    He did ask the lawyer representing the plaintiffs, "Don't YOU lose automatically if this IS rational basis?" but he didn't seem to really follow up when she answered "no, we still win." And it wasn't the only time Holmes threw out a question only to back down quickly at the answer. For example, Holmes asked if standing was going to be an issue in this case, and even though the plaintiffs' lawyer stumbled quite a bit in her reply (I don't think she was expecting the question), Holmes basically said, "sure, that answer is good enough for me."

    There was a fair amount of discussion about whether a particular prior 10th Circuit case was binding on sexual discrimination NOT receiving heightened scrutiny, so my feeling is that Holmes was curious as to whether he'd have to expressly overrule that case to find in our favor here. But he still WANTS to find in our favor, either way. That's my take anyway.

    I'm sure we'll have more grist for the speculation mill after the Bishop hearing today.

  • 74. Ragavendran  |  April 17, 2014 at 9:53 am

    Yes, that's exactly my thought on Holmes when I sat down to leisurely process what I heard after getting angry and upset in the immediate moments. He seemed convinced that the ban should go. And most of his questions seemed to be aimed at convincing himself that heightened scrutiny would be appropriate here, but at the same time, whether it was necessary to reach the scrutiny question – would rational basis be sufficient to throw out the ban or not. I don't think he'll hesitate to apply heightened scrutiny if he somehow got convinced that the ban would survive rational basis review (which I doubt).

  • 75. grod  |  April 17, 2014 at 11:21 am

    DrHeimlich do hope you are there again this pm, and as I have stated in other threads, this afternoon may provide a couple of occasions to reinforce what Peggy Tomsic said, or to under cut what Gene Schaerr has asserted like children raised by non-biological parents are at risk of become criminals. Your observations from last week that Jerome Holmes is amenable to the plaintiff's view is more reassuring than other commentators. I hope you continue to believe this after today. Indeed perhaps Judge Kelly will become less of a doubting Thomas.

  • 76. DrHeimlich  |  April 17, 2014 at 11:27 am

    I wish I could be there today too, but I could only spare the time off work for one of the two hearings, and I chose Kitchen.

    But I will be listening to the Bishop audio as soon as I can.

  • 77. JayJonson  |  April 17, 2014 at 4:07 pm

    This article is in error. It was not Holmes who referred to the democratic process, it was Kelly. He asked Peggy Tomsic, "Should we just ignore what the people have decided and the legislature has done.?"

  • 78. grod  |  April 17, 2014 at 10:02 am

    What is digitally [not] permissible at this pm hearing:

  • 79. Lynn E  |  April 17, 2014 at 12:31 pm

    Has there been any movement in Evans v. Utah? The District Judge heard the case on Mar. 12, and none of the websites have been updated since then. Is there a deadline for a ruling at that level?

  • 80. RAJ  |  April 17, 2014 at 12:45 pm

    I've wondered the same thing.

    I remember at the time arguments were completed, news accounts said a ruling could come at any time. Initially, I was expecting something pretty soon, but as time dragged on, I began to think there wouldn't be any movement until a decision was made in Kitchen.

    Anyway, there's so much else going on, I've stopped close paying close attention to Evans.

  • 81. Ragavendran  |  April 17, 2014 at 1:12 pm

    On March 21, Plaintiffs asked for extra time to respond to Defendant's motion to dismiss, reasoning that their response will depend on the outcome of the preliminary injunction motion, which hadn't been decided yet. Judge Kimball granted an extension to April 25. Since then, there has been a lull which was broken last week. On April 10, Plaintiffs filed a supplemental brief with facts and analysis in support of their request for a preliminary injunction, calling out the AG's recent actions (filing an extraordinary writ with the Utah Supreme Court in a separate adoption case involving Plaintiffs) as "continuing to impose irreparable harm on Mr. Barraza and Mr. Milner." The State responded yesterday to this brief with weak justifications for their actions.

    Also yesterday, the State filed a motion asking the district court to certify the following question to the Utah Supreme Court, as it concerns Utah law: "Do same-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law?" Plaintiffs today filed their strongly worded response in opposition to the State's repeated attempt to cause harm, stating that "it is time for the Court to issue a preliminary injunction based Plaintiffs’ federal claims, putting an end to Defendants’ use of this litigation to support its legal claims in other courts. Nothing short of a ruling based on the federal Constitutional claims will bring a prompt end to Defendants’ ongoing and brazen violation the rights of Plaintiffs and other legally married same-sex couples under the federal Constitution." It looks like they're losing patience with this judge.

  • 82. RAJ  |  April 17, 2014 at 1:35 pm

    Wow, Ragavendran, you're a dynamo! — Thanks for the informative update!

    One of the main reasons this case interests me, is that with Kimball being such an ultra-orthodox Mormon (and at the same time, a legal mind with a solid reputation to uphold) I imagine he he must be practically paralyzed by the conflict.

  • 83. Ragavendran  |  April 18, 2014 at 8:14 pm

    Today, the Plaintiffs asked for a second extension to respond to the Defendant's motion to dismiss (which is currently due next week), still reasoning that their response will depend on the outcome of the preliminary injunction motion. This time, they have been careful in asking that the new due date be "set at twenty (20) days following an Order by the Court on Plaintiffs’ Motion for Preliminary Injunction". I wonder if Judge Kimball went away on a vacation or something? Or, was he waiting to see how oral arguments in Kitchen and Bishop would play out?

  • 84. Ragavendran  |  April 21, 2014 at 6:41 pm

    Update: Judge Kimball granted the second extension today. Looks like he is still alive! I wonder when he will rule.

  • 85. Ragavendran  |  April 21, 2014 at 6:48 pm

    New Plaintiffs Erin and Shayla Blankenship seek to intervene in Michigan's De Boer appeal:

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