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Tenth Circuit Focuses on Standing

Marriage Equality Trials

First, if you haven’t read Scottie’s report, close this tab, and go read his post now. I think you can gain a lot through a listen or two of the audio (MP3 file available here), but there is just nothing that can make up for the ability to see the argument in person and view the body language of the judges. It is one of the reasons that I am so supportive of the work that Scottie has been doing. If you are able, consider clicking on that donate button up top.

Anyway, I have now had an opportunity to listen to the tape, and I guess the biggest thing I can say is: standing, Standing, STANDING. I figured it would come up, but not that the plaintiff’s attorney would spend almost all of his time on standing. Briefly, wikipedia has the following definition for standing: “ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.” That’s perhaps more broad than we need here, but basically it means that you want parties that can best represent the issues to the court.

If you look back to the previous 10th Circuit panel which dismissed the case for standing, the court basically told the plaintiffs to sue the county clerk as the best representative of the judicial branch that authorizes marriages in Oklahoma. And that’s what the plaintiff said as he was trying to steer conversation back to the more substantive issues. And maybe they haven’t found the exact perfect defendants, but I believe that at least two of the judges were leaning towards finding standing.

Now, the related questions that seemed to be most troubling for the three judges was standing for the question of whether the court had standing when legally married same-sex couples from other states tried to be recognized in Oklahoma. The judges seem to clearly understand that the clerk took action when issuing a new license, but when you move from, say California, to Oklahoma, do married couples go to the clerk? And who would be the right person to sue for that? Is there a right person at all?

It was at this point that Judge Lucero brought up the concept of “Capable of repetition, yet evading review.” This is a concept under the mootness doctrine that allows courts to hear cases even when the case isn’t really at issue anymore. Your textbook example of that is a case involving a pregnancy. The pregnancy ends, but the issue will remain for other women. The same could also be said to be the case here.

The other side of out of staters coming in was the question of “severability.” That is, if the panel strikes down the licensing provision, would the whole scheme fail? Or could the ban on out of state couples endure? That result would be something of a head scratcher, and really make no practical sense. But, I suppose it could happen if you don’t strike down the whole provision, and then the court can’t reach a decision on out of state marriages.

In the end, one suspects that much of this conversation will be academic. If the court decides to strike down the whole same sex ban, then the question of out of state marriages probably becomes a logical victim of circumstance and practicalities. As for the substantive issue, I don’t think we can read a whole lot more into today’s hearing than we got from the judges questions in the Utah case.

If I were a betting man and pressed on the issue, I’d be inclined to say 2-1 in favor of equality for both cases. But I think Holmes and Kelly could yet go either way. Holmes may just find that a simple rational basis test compels upholding the ban. Or perhaps Kelly could even switch over to striking down the measure on a heightened scrutiny basis. Reading the tea leaves on judges questions is a tough, tough business, so perhaps we just have to hope that the decision comes down soon.

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  • 1. Michael  |  April 17, 2014 at 10:27 pm

    Thank you for that report! It adds to my understanding of the court appearance.

  • 2. Guest  |  April 20, 2014 at 3:28 pm


  • 3. Ragavendran  |  April 17, 2014 at 11:20 pm

    This was painstaking, but I finally transcribed the audio manually. Here is my (unofficial) transcript of the oral argument in Bishop. Note that I might have made mistakes, and corrections are welcome!

  • 4. Retired lawyer  |  April 18, 2014 at 4:19 am

    We all owe you a hearty thank you, Ragavendran, for that fine labor of love in transcribing the oral arguments.

  • 5. RCChicago  |  April 18, 2014 at 8:01 am

    Thank you for your hard work to benefit so many—Bravo!

  • 6. jdw  |  April 18, 2014 at 10:27 am

    Awesome, Ragavendran!

  • 7. Ragavendran  |  April 18, 2014 at 10:41 am

    You're all welcome! I'll see if I can do this for Kitchen as well over the weekend, so there is a searchable record of all post-Windsor appellate oral arguments for future reference. I can now almost surely recognize Judges Kelly, Holmes and Lucero just by their voices. Not sure if this is a useful skill though πŸ˜‰

  • 8. Bruno71  |  April 18, 2014 at 12:09 pm

    I think that's a highly useful skill.

  • 9. SPQRobin  |  April 18, 2014 at 6:09 pm

    Awesome! To make it fully perfect: where you wrote "In [who?] versus Glucksberg, to begin with" he says "and why are we in Glucksberg to begin with" πŸ™‚

  • 10. Ragavendran  |  April 18, 2014 at 6:18 pm

    Thank you! That makes sense – I've changed it. If you have any more insights into what the other [?] and [indiscernible] portions of the transcript might be, feel free to let me know!

  • 11. SPQRobin  |  April 18, 2014 at 6:46 pm

    I could perhaps review it and fix where needed. Though I'm not familiar with scribd so I don't know how easy it is to let others edit it.

  • 12. Ragavendran  |  April 18, 2014 at 7:28 pm

    Thanks! Here is the link to a Google doc where I have listed the items that need more clarification/correction. Anyone with this link can comment, so feel free to markup and comment on the suggested corrections:

  • 13. Retired lawyer  |  April 19, 2014 at 6:54 am

    We all owe you a hearty thank you, Ragavendran, for that fine labor of love in transcribing the oral arguments.

  • 14. Retired lawyer  |  April 19, 2014 at 7:17 am

    Sorry about the re-post. I am all thumbs this morning. I just wanted to put some context around Washington v. Glucksberg, 521 U.S. 702 (1997). Defense counsel in the marriage equality cases wants to argue that same sex marriage is being claimed as a new right, a liberty interest protected by the due process clause of the 14th amendment. It fails under Glucksberg , the argument goes, because same same sex marriage is not "deeply rooted" in the nation's history. The Supreme Court in Glucksberg rejected rejected a claim that a assisted suicide was a right (liberty interest) saying that it was not deeply rooted, and could not be regarded as fundamental. So far, the courts have spotted the circular reasoning: defense counsel assumes the conclusion by asserting that same sex marriage is not marriage. That is why you have judges asking counsel why it is necessary to even get into a discussion of Glucksberg. The issue is marriage itself, which the Supreme Court has established is a fundamental right guaranteed by the Constitution. Glucksberg is irrelevant.

  • 15. Michael  |  April 19, 2014 at 2:25 am

    I love Ragavendran.

  • 16. Pat  |  April 19, 2014 at 2:36 pm

    Thanks! Wow, amazing work!

  • 17. Rose  |  April 17, 2014 at 11:29 pm

    We NEED to STOP using the term "GAY" or "SAME-SEX" Marriage because in reality……that's NOT what these cases are about……they are about having the same FUNDAMENTAL RIGHT to marry the person of our choosing WITHOUT regard to gender!!!

    As long as these terms are used……people will CONTINUE to think we are asking for some "SPECIAL" right and that's NOT the case!!!

    After dealing with my wife being audited in 2011 because she filed head of household and claimed her step-daughter and grandchild as dependents even though they are ONLY her dependents because of our marriage……..we FINALLY got the matter resolved. The IRS DOESN'T see us as ANYTHING but MARRIED and that is what this fight is about!!!

    I truly appreciate all the information that this site provides and to folks like Ragavendran who go above and beyond to get the information out…….but if we are truly to ever get the RIGHT question in front of SCOTUS…….we NEED to keep this focused on the FUNDAMENTAL RIGHT to marry just as Justice Holmes kept bringing up Loving vs Virginia instead of Baker vs Nelson.

    I believe we will eventually prevail when this issue goes in front of SCOTUS……and I believe that one Justice who most believe would vote against Marriage Equality…..may well surprise us all!!!

  • 18. ragefirewolf  |  April 18, 2014 at 1:41 am

    You're right. It's just like saying "mixed-race marriage." It's irrelevant to the right itself.

  • 19. Lymis  |  April 22, 2014 at 9:13 am

    There are times and places where what you say is absolutely true. I'll agree that our default term really ought to be "marriage equality" and that we need to make it a point to discuss our marriage as marriages and our spouses as our husbands and wives.

    But at the same time, there are also times when the discussion is specifically about the challenges that same-sex couples face, and when it's appropriate to point out that it is specifically gay people and bisexual people in same-sex relationships that are being discussed.

    My marriage is a marriage and is as real and valid as the marriages of my straight neighbors, but at the same time, if we all hopped in a car and drove across the border, my marriage "evaporates" in many ways that theirs does not. Pretending otherwise is disingenuous, and I am not willing to hamstring my ability to point that out by refusing to use terms like "gay marriage" or "same-sex marriage" when that's the clearest way to discuss it.

    It's not like those who are opposed to my equality would drop the issue if we changed the vocabulary about it – or that they themselves won't continue to use the terms.

    Yes, speaking of our marriages in language that emphasizes the fact that they are, legally (where legal) identical in all other respects the same as those contracted by opposite sex couples often makes a big difference.

    But there are times when if all we do is speak of "marriage" that our own relationships become invisible, precisely because they aren't what people think of when we just say "marriage."

    All doctors are doctors. And a woman is no less a doctor than a man, given the same degrees and training. But female doctors face some unique challenges. Black legislators face some unique challenges. Muslim clerics face some unique challenges. And so on.

    When the discussion is ABOUT those challenges, about inequality, about institutionalized bias and discrimination, it's not inappropriate to say so, and to make those distinctions.

    In court, same-sex marriages are distinctly disadvantaged.

    You're right that it's a topic where some more attention to our choice of language can often make a big difference. But we owe it to ourselves to keep all our options available rather than overcorrecting, especially while there is such a difference in how they are viewed.

  • 20. Retired lawyer  |  April 18, 2014 at 4:46 am

    Standing, I am afraid, is one of those issues that lawyers and judges find fascinating in the way that English teachers love crossword puzzles. Only that can explain the inordinate amount of time devoted to standing at the oral argument. At MOST, an adverse decision on this point would only mean that an out of state married couple challenging Oklahoma's non-recognition laws would have to be turned down for a joint adoption or seek a divorce, or in some other way show an actual injury before bringing a suit. Non-lawyers (i.e., normal people) hear discussions of standing, and their eyes glaze over. Take home advice for general readers: ignore the passages that deal with standing.

  • 21. Paul  |  April 18, 2014 at 8:52 am

    There is a Supreme Court case that decided that a plaintiff did not need to be turned down, or arrested in order to challenge a law in court. They could simply show that there was a likleiehood that they would be affected. I think this came up in the challenge to DODT. The soldiers did not have to be discharged from the military to challenge the law, as there was a obvious likeliehood that they would be.

    I don't think there is any doubt that the plaintiffs in the case would be denied recognition of their out of state marriage license.

  • 22. Lymis  |  April 18, 2014 at 2:26 pm

    I suspect that another factor will be that if they hadn't gone out of state, they would still be denied a license in Oklahoma. Otherwise, essentially, OK is saying, "You can't sue us for denying you a license, because you are already married somewhere whose marriages we don't recognize, except for the purpose of denying you a license here."

  • 23. Jesse  |  April 19, 2014 at 9:14 am

    It's as if judges are saying to the lawyers, "well, maybe if the plaintiffs had tried to get a divorce in Oklahoma with their out-of-state license, then you'll have standing to sue the judiciary…"

  • 24. Retired lawyer  |  April 18, 2014 at 5:19 am

    Judge Holmes challenged defense counsel to square his arguments about procreative purpose with Turner. Judge Homes was referring to Turner v, Safley, 482 U.S. 78 (1987) in which the Supreme Court held that marriage is such a fundamental right that it could not be infringed by a requirement that a prisoner get permission from his warden before marrying. The Supreme Court held that the prisoner still had the unconditional, fundamental right to marry, even though there was no possibility of consummation or of procreation. The ADF lawyers avoid mentioning this case for pretty obvious reasons. It disposes of their argument that same sex couples can be excluded from this fundamental right on procreative grounds.

  • 25. Tim  |  April 18, 2014 at 7:08 am

    How did defense counsel respond?

  • 26. StraightDave  |  April 18, 2014 at 7:24 am

    My recollection was that he blew right past it, didn't even address it at all. There was nothing he could say. Perhaps the transcript can be more enlightening, but only with an absence of words. I remember that exchange well, and was dying to hear the response. Got nothing, which hopefully told the judge a lot.

  • 27. StraightDave  |  April 18, 2014 at 7:41 am

    Here's the relevant portion of the transcript (from Ragavendran), on p 4:
    Sure. Umm… The established fundamental right to marry is the right to enter the relationship of husband and wife. And the Supreme Court's past decisions in Loving, Zablocki, and Turner – all those cases involved marriages between a man and a woman AND, in all of those opinions, the Court expressly reflected marriage’s abiding connection with procreation and child-rearing.

    In Turner? How so in Turner?

    In Turner, the Supreme Court specifically talked about the consummation of the marriage, and it also talked about legitimizing children. But if there were any doubt on that point,…

    He then drifts into rambling about Baker….
    OK, so he did manage to utter the word "Turner", but said nothing at all to address the judge's question except to obfuscate/lie.

  • 28. JayJonson  |  April 18, 2014 at 9:00 am

    Campbell may have been glib, but he is a fount of misinformation. I think the judges saw right through him.

  • 29. Jesse  |  April 19, 2014 at 9:16 am

    I can't believe judges didn't press Campbell on Turner. How Campbell glibly said that procreation was still possible (and in the state's interest) of an incarcerated inmate.

  • 30. StraightDave  |  April 19, 2014 at 9:24 am

    I assume the judges just wrote him off at that point and decided not to waste any more time on it. They knew the argument was worthless. That's the advantage of being a judge. You don't have to score debating points in front of another judge. You are the damn judge. Just ring the guy up and move on πŸ™‚

  • 31. Steve  |  April 18, 2014 at 9:43 am

    Now read the decision and see what the Supreme Court really said. They list a whole list of other things that people could value in being married. He clearly knew that and chose to lie by omission.

  • 32. Rose  |  April 18, 2014 at 12:28 pm

    Are you saying that a lawyer would MISREPRESENT themselves in front of an Appeals panel? I'm SHOCKED……just shocked…….lol!!!

  • 33. davep  |  April 18, 2014 at 2:03 pm

    Indeed! If you listen closely you can almost hear the pitter patter sound of Campbell tap dancing as he makes those remarks…..

  • 34. Drpatrick1  |  April 18, 2014 at 2:17 pm

    Let me try my hand at explaining the procreation argument. I believe it was Cooper in the Prop 8 case who explained it the best… He argued that the state has an interest in ensuring children are raised by their parents if only because children not raised by their parents are more likely to need the state's help. Marriage makes this more likely as couples with children who are married are more likely to coparent their children than couples who have children but are not married. Marriage also has a stabilizing force on where one directs their sexual energy, if married, you are more likely to have sex with your spouse than with other people and Unmarried people are more likely than married to have other sexual partners. Infertile couples do not challenge this premise, as rarely are both members infertile. If you "channel" sexual activity to only your spouse, then even if your barren wife cannot conceive, your army of sperm will not impregnate another, and thus the marriage, even if infertile, does prevent children being conceived outside the stabilizing force of a married family. I bet they would argue that allowing prisoners with no possibility of consummation to marry will still take that other person out of the sex pool, and make it less likely that they will conceive a child outside of a marriage relationship.

    As for why they need this entire line of reasoning…it would seem it is all they have. They do not offer it to justify discrimination, they offer it to say there isn't discrimination because there is a difference here, so the same sex couples are not similarly situated with respect to marriage. They offer this as a rational basis by which government could reasonably believe that by offering marriage to heterosexual couples, the only type of couples believed to exist whereby routine coupling might result in procreation, they have a reasonable expectation that fewer children will become a burden on the state. That is their entire argument. Essentially, if rational basis is ruled sufficient, they need this argument to stick because without it, they lose even rational basis.

    However, I don't think this argument should hold up even rational basis. I mean, if two men were to marry, and if marriage made it less likely for them to have relations outside that married relationship, then they too would be taking each other out of the pool of men who randomly deposit sperm into appropriate women who then can conceive a child. So, just like the infertile couple, two men being married to each other has the same likelihood for reducing "out of wedlock" children. I think in this context, the fluid nature of sexuality works in our favor, and not against us as the "immutable characteristic" criteria in heightened scrutiny.

    As for whether gays make appropriate parents, most states do currently allow gays, single people, and a myriad of different types of parents who are not straight married to adopt. Therefore, at least in those states, it would not seem that ability to parent can even be brought up as an issue. I know we often hear arguments here that because procreation and raising children are not requirements of marriage, they should not be brought up in marriage equality discussions. They are only brought up to give the rational basis needed to uphold a law that discriminates when that discrimination is against a non protected class. By golly, it is far past time that SCOTUS accepts sexual orientation as a protected class, subject to a heightened scrutiny. That will finally put an end to all of these nonsensical arguments used to keep us from gaining equal rights in this country.

  • 35. sfbob  |  April 18, 2014 at 2:30 pm

    You've probably done the best it is possible to do. All of it of course begs the question as to why, if this is a justification for depriving gay or lesbian couples of the right to marriage, does it not equally apply to the infertile?

    The biggest problem with the "rationally-based" arguments is that they are (as it was put in Romer vs Evans) both underinclusive and overinclusive. None of them can be made without falling on unintended targets or else allowing kinds of couples to marry which the law already has independent, non-discriminatory bases for excluding. The only way to avoid either of those is to specifically target gay and lesbian couples, thereby creating a classification "undertaken for its own sake." As we all know and as an increasing number of judges have been reminding us recently, this is both a circular argument and a move which is impermissible under the Constitution regardless of level of scrutiny.

  • 36. SoCal_Dave  |  April 18, 2014 at 2:55 pm

    Thanks, DrPatrick, that's the first time I was able to follow along that long and winding logic road, as tortured and twisty as it is. I think one of the [many] flaws is the idea that in an infertile couple, only one is likely to be infertile. Surely there are heterosexual couples where both are infertile. They are still allowed to marry. So once again, gays and lesbians are singled out for no explained reason.

  • 37. davep  |  April 18, 2014 at 3:32 pm

    And of course another big reasons this type of 'rational basis' argument falls flat is that these trials are not examining a law that was created to specifically PROVIDE civil marriage to OPPOSITE sex couples, they are examining the laws that were enacted relatively recently for the specific purpose of DENYING civil marriage to SAME sex couples. And just pointing out one of the reasons that marriage is good for those who DO have access (while ignoring all of the other reasons that marriage benefits both opposite sex couples who currently do, and same sex couples who do not have access), does nothing to justify a law that denies those rights and protections to those who do NOT have access.

    The idea that denying the rights and protections of marriage to couples who are not at risk of procreating 'accidentally' or 'irresponsibly' somehow makes OTHER couples procreate more responsibly is completely illogical. While "Rational Basis" can be a big hoop to jump through, the argument still has to have some basis in rational thought. The actual effect of the law must somehow be rationally related to the reason offered as justification for the law.

  • 38. Josh  |  April 18, 2014 at 4:18 pm

    Nice explanation, Drpatrick1. That seems to be what they're going for, but I still don't see how excluding us from marriage promotes hetero marriages and potential kids. Maybe I missed that point in your post.

  • 39. DrPatrick1  |  April 18, 2014 at 10:59 pm

    Josh, I think they are not saying that marriage promotes children, or that the promotion of children is the purpose of marriage. (They likely interpret the bible this way, but they are not arguing this in court, and for obvious reasons). I think they argue that marriage makes "out of wedlock" children less likely, and those are the children who are more likely to become a burden on the state. They argue that the stabilizing effects of marriage, help to keep the parents together, helping to ensure that both parents raise the child, and making it less likely that the state will have to step in with food stamps etc. they argue that the state is trying to channel heterosexual activity into an institution that will make the potential side effect of that activity, children, less burdensome on the state. Because homosexual activity does not burden the state in the same way, same sex couples are not similarly situated, and thus it is not discrimination to exclude them from an institution that was set up to channel heterosexual activity. They do not argue that the purpose of the exclusion is to promote heterosexual marriage.

    Least my explanation confuses people on my stance on this, I think this is horse hockey! I don't think this line of reasoning should survive even rational basis. I just think it shows just how weak their argument is, that this is all they have left! What this argument forgets, is that if marriage is supposed to prevent out of wedlock children, then the exclusion of same sex couples then necessarily excludes those with children. Because the exclusion then demands that those children are raised out of wedlock, and make it MORE likely for them to become a burden on the state. I do not know how this argument can meet even the lenient burden of rational basis, when it can be shown that the effect of the exclusion actually makes children MORE likely to be a burden on the state.

  • 40. Lymis  |  April 22, 2014 at 9:30 am

    I know you're trying to explain the rationale, not to defend it.

    But this is like saying that women need access to health care because of the prevalence of cervical cancer and breast cancer. True. But that doesn't mean that those facts are any justification for denying health care to men because men don't have cervixes.

    And that's what they are doing. It's also worth noting that the reason they are focusing on it is transparently because they have decided that it's the only thing they can point to that distinguishes opposite sex couples from same-sex couples. The argument itself is an example of sexual orientation discrimination.

    If all gay people were infertile, there might be some justification for making the point. But we're not. Often, the same people who claim that "gays have the same right to marry as straights – they just have to marry someone of the opposite sex" ignore the fact that some people in same-sex couples still have sex with members of the opposite sex, and can still make babies with someone who isn't their spouse – and that the resulting children still have as much right to having their parents' relationship supported by the state.

    And, that same focus draws attention away from the fact that validly married opposite sex couples often cannot or do not have children. Unless and until they make proven mutual fertility a condition of marriage, it lacks rational basis to exclude other mutually infertile couples.

    If the move was to make a tiered matrimony system where couples without children have one set of somewhat limited rights and couples with children get more, then a focus on fertility might have some room in the discussion. People would "childless marry" and then, once pregnancy is proven or adoption is approved, they could upgrade to "child-raising marriage." But nobody anywhere is proposing that, certainly not as a matter of state law or the wording of their Constitutions. And, even then, it wouldn't justify excluding same-sex couples.

    There is, therefore, no rational connection between the state's claimed interest and the mechanism they have in place. And they know it, or they'd have a coherent explanation for allowing the marriages of childless straight couples.

    They simply cannot claim that procreation is the central and defining feature of marriage when they don't even ask the question of fertility or the intent to raise children on the marriage license application and have no mechanism whatsoever for following up to ensure that couples procreate or risk an annulment.

  • 41. DrPatrick1  |  April 22, 2014 at 10:51 am


    I think you misunderstand the procreation argument. They are not arguing that by putting opposite sex couples in an institution like marriage, more children will be born, or that the state has an interest in ensuring more children are born. They don't care if a married couple has children or not, only that children are begotten within a married relationship, as those who are not are more likely to become a burden on the state. Marriage, here, serves two purposes: first, their claim is that marriage is more likely than not to identify the biological parties responsible for any offspring produced within that marriage. As such, many states have a requirement that any children produced within a marriage are the legal responsibility of the parties of the marriage. This can be the case even when DNA testing proves one of the spouses are not the biological parents. The fact that such laws exist, is quite strong evidence of the states interest in trying children to a marriage, and thus, having the effects of a heterosexual relationship be a fundamental part of what a marriage is. Second, they argue that the stabilizing force of a marriage is such that it helps to ensure that children are raised by two parents. Children begotten within a marriage can through divorce or death end up being raised by a single parent, and even when raised by two parents, can sometimes need welfare etc. however, children begotten outside of a marriage relationship are much more likely to need government services. They argue that the governments interest in marriage is that it helps keep children from needing/relying on government services, and then being a burden on the government. In a way it's like a dad who gives his teenager an allowance, he has an interest in how that money is spent. But when that teenager grows up and earns their own money, the dad's interest in how that money is spent diminishes. Here, they argue the government's only interest in the personal relationships of adults is due to the potential consequence that relationship might have on being a burden on the state.

    This is the area where same sex couples are not generally similarly situated to opposite sex couples. As a potential difference, they need to exploit this difference, as it is the only thing left they have to argue with. Indeed, it is not out of the mainstream to accept this as a rational basis by which to accept that the government has a rational reason, not to exclude same sex couples, but to only include opposite sex couples in the government institution we call marriage.

    I argue that this is not enough! The government can no longer treat out of wedlock children differently than "legitimate" children, and even such terminology is offense to the modern ear. Therefore, I argue the government's interest in legitimacy is gone. By denying gay couples with children, the effect of this law is to ensure those children are more vulnerable to becoming a burden on the state, so it is not rational to accept that the purpose of a law is to prevent the very thing this law ensures. Therefore, that should not be used as a rational basis.

    I argue in all other important ways, same sex couples are exactly like opposite sex couples, and thus are very much similarly situated. I argue that denying gay couples equal access to this important institution has the direct effect of treating gay couples as something other, something less than, and that the US constitution declares this impermissible. This line of thinking relies on equal protection jurisprudence and not the right of privacy jurisprudence. This was the tact that Roberta Kaplan successfully pursued in Windsor, as opposed to the less successful tact chosen by Olsen and Boise in Prop 8. Remember, the record only shows them winning in district court and thus not setting strong precedent. They did establish a trial record that can easily be used in other cases, but it wasn't the historic win of the Windsor case.

    We can easily dismiss their logic as faulty. But it is only when we truly understand it, and the reasons they are choosing this path, can we finally defeat them.

  • 42. Randolph Finder  |  April 18, 2014 at 7:34 pm

    Oddly enough in the discussion of Oklahoma and Utah, what hasn't been mentioned is that Utah *does* mention to ability to reproduce. See….

    If First cousins wish to marry, they must either both be 65 or older *or* both 55 and older and that either party be unable to reproduce.

    So in a small situation, a straight couple must be infertile to get married…

  • 43. davep  |  April 18, 2014 at 8:12 pm

    Yup, which completely pulls the rug out from under any argument to deny it to couples that can't procreate. As we see in this instance, the couple is denied marriage if they CAN procreate, and are allowed to marry if they CANNOT procreate. Clearly then, their marriage must serve a purpose for both the participants and the state that has nothing to do with them procreating…….

  • 44. Ragavendran  |  April 18, 2014 at 8:16 pm

    Hear hear – can somebody point this out to Tomsic please? This does obliterate any remaining rational basis for the "responsible procreation" argument. If I were Utah though, I'd scramble and come up with a weak response that it still doesn't refute the "gender-diverse parenting" argument (which is refuted by countless studies and common sense).

  • 45. Dr. Z  |  April 18, 2014 at 9:57 pm

    It definitely should be mentioned at SCOTUS. If it gets to that, I suggest that the collective community of EoT submit an amicus brief. Why not?

    Hey Ragavendran – are you up for the first draft of that? We could review it as a community – a crowdsourced amicus brief, as it were.

  • 46. Ragavendran  |  April 18, 2014 at 10:04 pm

    Great suggestion! It will be an enormous undertaking though, if we're serious about it in doing a good job. I'm up for devoting some time towards a first draft (though not single-handed) this summer (July).

  • 47. JustMe  |  April 19, 2014 at 4:25 am

    You have to be a lawyer admitted to the bar of the SCOTUS in order to file papers there…

    Rule 37 … "An amicus curiae brief may be filed only by an attorney admitted to
    practice before this Court as provided in Rule 5."

  • 48. Dr. Z  |  April 19, 2014 at 6:30 am

    Oh ye of little faith.

  • 49. Ragavendran  |  April 19, 2014 at 2:20 pm

    Oh I'm sure we can find someone who qualifies. Thanks for pointing it out.

  • 50. Robert Rhea  |  April 20, 2014 at 3:02 pm

    It can't be that hard to get admitted, Orly Taitz and the hacks from ADF did.

  • 51. NetAmigo  |  April 19, 2014 at 8:40 am

    This point about first cousins has been made to the court. I remember reading it but don't recall where I saw it.

  • 52. Jesse  |  April 19, 2014 at 9:17 am

    I don't remember either, but I do believe the counterargument to it was that they still represented the gender "norms" by which procreation was most likely (read "most favored").

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

    I couldn't find it in the Plaintiffs' brief, so I still doubt that Tomsic is aware of it. Maybe in an amicus brief?

  • 54. sfbob  |  April 21, 2014 at 11:37 am

    I know it was pointed out on various websites, including this one. I'm not certain whether or not it found its way into the record.

  • 55. DrPatrick1  |  April 18, 2014 at 10:41 pm

    I think the other side 's argument would be that the state's interest in this marriage might still be to remove the non infertile partner from the pool of heterosexuals who randomly mix their genitals with strangers and thus might procreate outside of marriage. By linking them in marriage, they will be less likely to procreate with someone else, in a non marital relationship. The requirement for the couple to not produce children is to prevent contaminating the gene pool.

    This argument sounds so absurd to most of us, but this is all they have left! I'm glad they are going with this, as it seems to be helping turn the tide in our favor!

  • 56. davep  |  April 18, 2014 at 11:42 pm

    …. and it still doesn't explain how denying a marriage license to a same sex couple prevents either of those two people from going out and having 'irresponsible procreative sex' with someone other than their partner, and of the opposite sex. If anything, it would make it more likely. If they want to argue that marriage makes people less likely to do that undesired behavior, and also argue that orientation is fluid and not immutable, they have just argued that the state should provide it for same sex couples for the same reason they are arguing that the state provides it to other couples.

  • 57. JustMe  |  April 19, 2014 at 4:31 am

    You're assuming they have the same loose morals that you do, that they would cheat in the first place, or even consider it.

    When you're married, cheating is a recipe for financial disaster… which a lot of gay people are about to find out, because of this little thing called common-law marriage. Forget the license, once the ban on same-sex marriage is declared unconstitutional, then a lot of you are about to find out you are already married under the rules for common-law marriage, and thus cant get a marriage license.

  • 58. Concern_troll  |  April 19, 2014 at 6:52 am

    And you are assuming we have loose morals. I know plenty of straight couples that have cheated in their marriage, and many LGBT couples who have been faithful in their marriages and/or union. People are people and sexual orientation says nothing about morals, loyalty, integrity, or anything else.

  • 59. Steve  |  April 19, 2014 at 7:10 am

    More nonsensical word salad from you.

  • 60. Thomas  |  April 19, 2014 at 8:00 am

    Like many other things it depends on the state. I believe common law marriage states are a minority. Heterosexuals don't cheat? Get serious.

  • 61. davep  |  April 19, 2014 at 2:41 pm

    Hey 'justme', when you get around to doing something about the pathetic track record of 50% divorce rate among opposite sex couples and their rampant problems with unintentional and irresponsible procreation resulting in abortions and abandoned children that end up burdening the state and other more responsible citizens, feel free to point fingers about 'morals'. Until then, you're making a complete fool of yourself.

  • 62. bayareajohn  |  April 20, 2014 at 9:31 pm

    Right – the shocking statistics don't lie, well over 99% of all illegitimate births are due to heterosexual sex. And last time I checked, there were lots of them.

  • 63. Reformed  |  April 19, 2014 at 3:31 pm

    If marriage is made legal, then I doubt very much that couples would be considered married the next nano second. But hey, decades of discrimination might create a few legal issues, what do I know. Thanks for the heads up and your concern. Consider that, like loose molars, loose morals, are an individual in nature. Think along the lines of "JustMe" if you have difficulty with the concept. Then you can fix your molars, or your morals, as the case may be.

  • 64. Glenn I  |  April 19, 2014 at 3:40 pm

    you're saying morals are like a drag queen's genitals – best when tucked?

  • 65. bayareajohn  |  April 19, 2014 at 8:47 pm

    Trolls, like dogs, are nastiest when they are afraid. You lose. Good day sir!

  • 66. Straight Ally #3008  |  April 19, 2014 at 5:07 pm

    Threatening gay people with something they've been fighting to obtain for years and years? Well, alrighty then.

  • 67. Busybody Repellent  |  April 19, 2014 at 7:19 pm

    Your "concern" is not needed nor wanted silly person. Go away. This site doesn't concern you.

  • 68. davep  |  April 19, 2014 at 8:36 pm

    ….besides, how could it be agued that opposite sex couples are NOT prone to those undesirable behaviors like cheating on their partner, when it is being argued that the reason marriage is provided to these couples is to discourage them from engaging in those behaviors? Your rhetoric doesn't make sense, which makes it a pretty hollow insult.

  • 69. JustMe  |  April 20, 2014 at 4:16 am

    When you commit matrimony, you commit monogamy. When you are not married, you are not committed to monogamy.

    Thats why adultery is a ground for divorce… The vows of the marriage (monogamy) are no longer valid.

  • 70. KarlS  |  April 20, 2014 at 12:57 pm

    Go fuck yourself, asshole.

  • 71. Mike in Baltimore  |  April 20, 2014 at 2:16 pm

    If marriage means monogamy, then you should be all in favor of gays and lesbians being able to be married in same sex marriage. After all, didn't you say "When you commit matrimony, you commit monogamy. When you are not married, you are not committed to monogamy"?

    So, by your reasoning, if gays and lesbians are not allowed to marry, it sets up a self-fulfilling prophecy that you ASSume will carry over into Marriage Equality. Or are you saying you don't want to see if that is true, you just ASSume it to be true?

    By the way, can you explain why the states with the highest divorce rates tend to be in the bibble belt?

  • 72. JustMe  |  April 20, 2014 at 3:00 pm

    States with the highest divorce rates in 2012:

    1Nevada14.2 %
    2Maine13.6 %
    3Oklahoma12.9 %
    4Oregon12.8 %
    5Vermont12.6 %
    5Wyoming12.6 %
    6Arkansas12.5 %
    6Kentucky12.5 %
    6Tennessee12.5 %
    6Washington12.5 %

    Hmmm … Maine = SSM state. Oregon = SSM state. Washington = SSM state. Vermont = SSM state.

    Source: Center for Disease Control, National Survey of Family Growth

  • 73. OctaboonaA  |  April 20, 2014 at 5:29 pm

    Oregon is not (yet) a SSM state and certainly wasn't in 2012.

    Maine did not become a SSM state until the beginning of 2013 and Washington in December 2012 meaning the vast majority of divorces in that year were before SSM.

    So really the only state on your list with SSM in 2012 is Vermont.

    Correlation does not imply causation.

  • 74. davep  |  April 20, 2014 at 9:11 pm

    A ha, I missed Maine! You are correct, OctaboonaA.

  • 75. davep  |  April 20, 2014 at 5:36 pm

    …. Since Washington and Oregon didn't recognize or perform same sex marriages until 2012 and 2013, that "top ten" list only includes TWO states that had same sex marriage when those figures were recorded. Wow, you are really grasping at straws, and then missing them.

  • 76. Mike in Baltimore  |  April 21, 2014 at 2:04 am

    If you need assistance understanding the word 'tend', please go to .

    And are you denying that Oklahoma, Wyoming, Kentucky, Arkansas and Tennessee are in what is popularly known as the bibble belt?

    Nevada is a special case, so five of your top ten (actually nine) are bibble belt states. And you are incorrect on three of the other four.

    By the way, Massachusetts has had Marriage Equality the longest of any of the states, which means it should have the longest experience with divorce under Marriage Equality, and it is almost at, if not AT, the bottom of states reporting divorce rates. Kinda blows all your theories about Marriage Equality being only pretend marriage, thus prime for divorce, out the window, doesn't it?

  • 77. davep  |  April 20, 2014 at 2:37 pm

    That's what I was saying, and you're still not seeing the gigantic logic hole in your "argument". If marriage is good for encouraging monogamous behavior and keeping participants in a relationship out of the 'procreation pool' so they dont' procreate with people other than their partner, it makes no sense to use that argument to deny marriage to people who are in a same sex relationship who might other wise have no encouragement not to go procreate with someone of the opposite sex. Cuz orientation is so 'fluid' and it's a 'choice', right? Your two bogus arguments contradict each other. That's the problem with lies. You have to put some effort into keeping track of them and making sure you don't paint yourself into a corner. You got nothing, troll.

  • 78. JustMe  |  April 20, 2014 at 3:02 pm

    SSM = No Procreation

    So the logic of marriage for opposite sex couples doesnt apply.

  • 79. Zack12  |  April 20, 2014 at 3:48 pm

    So infertile couples or elderly people should be forbidden from marrying then?
    What about people like my cousin who has been married for 12 years and has no children because he and his wife don't want them?
    Is their marriage not real either?

  • 80. davep  |  April 20, 2014 at 5:25 pm

    But according to the "argument" from your side, the benefits of marriage are provided in order to discourage the participants from procreating with OTHER people, OUTSIDE their own relationship, resulting in unintended children being born outside of that relationship. And since orientation is 'fluid' and a 'choice', either party in a same sex relationship should be discouraged from procreating with an opposite sex person outside of their relationship, just as much as people in any other relationship. So the fact that same sex marriages and same sex relationships don't result in procreation is irrelevant. Your argument is about them procreating with OTHER people. You're still not seeing the gaping hole in the "logic" of those "arguments".

  • 81. Richard Weatherwax  |  April 22, 2014 at 5:43 am

    Who says same sex couples cannot have children?

    They have been doing so for thousands of years. Adoption is one method, but gau couples often hirer a host mother, while a lesbian couple will use doner sperm. Nothing new or unusual here. Infertile heterosexual couples have been using the same methods for years, and the offspring has always been accepted as belonging to the married couple.

  • 82. Guest  |  April 20, 2014 at 3:29 pm

    Ryan Conrad gets it – he specifically said that SSM was being advocated to destroy marriage and the family unit.

  • 83. bayareajohn  |  April 20, 2014 at 9:24 pm

    You obviously have no idea who Ryan Conrad is or what he "specifically said". 5 minutes on Google would clearly show what a deliberate misrepresentation that was. What's more, Conrad's politics could not be more opposite yours… to hold him up in support of your position could not be more ingenuous. Oh, google "ingenuous" for help.

  • 84. JustMe  |  April 20, 2014 at 4:20 am

    "I _____, take you ______, to be my wedded wife. To have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness or in health, to love and to cherish 'till death do us part. And hereto I pledge you my faithfulness."

    Or in Old English:

    "I,____, take thee,_____, to my wedded Wife, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part, according to God's holy ordinance; and thereto I plight thee my troth"

  • 85. StraightDave  |  April 20, 2014 at 7:57 pm

    Any reason a woman can't speak those words, and sincerely mean them?
    You're quite a piece of work, JustMe. What do you do in real life? Must be the life of the party.

  • 86. bayareajohn  |  April 19, 2014 at 8:39 pm

    Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. And none of them bar conversion. So you are just a fool throwing bits of things you've heard second hand and do no thinking for yourself. A shame. A waste of flesh. Not what your god intended.

  • 87. Lynn E  |  April 19, 2014 at 11:03 pm

    Ironically, it was the legislation under 10th Circuit review that changed Utah from a common-law state to the current "common-law if recognized by a court" mess that is Utah's marriage statutes. It has to be, after our alcohol consumption laws, the most difficult bodies of law in the State.

  • 88. JustMe  |  April 20, 2014 at 4:14 am

    Thats where you are wrong … ALL states "recognize" common-law marriages. The nine you mentioned are the only ones who allow you to enter into them… the rest require a license.

    I guarantee you that a common-law marriage from Texas is valid everywhere around the world.

  • 89. mackenzie  |  April 20, 2014 at 8:13 am

    Why are you so full of malice JustMe? Your comment on morals, aside from being counterproductive and patently false, achieve nothing more than to cause resentment. I hope whatever is hurting you in your life and causing you to spread your misery is resolved quickly.

  • 90. Bruno71  |  April 20, 2014 at 12:11 pm

    Some people feel more whole when they denigrate others. If s/he were really intent on having a dialogue with us on these issues, s/he wouldn't be making such facile, blanket judgments on a whole group of people. With impure motives so obvious, I wouldn't hold out much hope for any quick resolution in this matter.

  • 91. JustMe  |  April 20, 2014 at 3:09 pm

    Being against SSM doesnt mean that I am full of malice.

  • 92. davep  |  April 20, 2014 at 5:30 pm

    Your comments here have abundantly proven that you are exactly that. You have no argument against same sex marriage, and have now resorted to pointlessly wishing for bad outcomes of the relationships and marriages of same sex couples, as well as tossing petty insults. It's childish and vindictive. Grow up.

  • 93. JustMe  |  April 20, 2014 at 7:44 pm

    Im not the one arguing here that 2000 years of opposite sex only marriage is irrational, bigoted and prejudiced…

  • 94. StraightDave  |  April 20, 2014 at 8:07 pm

    Neither is anyone else. For most of those 2000 years, nobody thought about it at all, not even realizing it was a question. So your premise is flawed, and very deliberately so.

    More accurately, most of us are arguing that the very recent, deliberate, and conscious efforts at exclusion are indeed irrational, bigoted and prejudiced. Quite a significant difference when discussing this honestly.

  • 95. davep  |  April 20, 2014 at 8:09 pm

    GRANTING marriage to OPPOSITE sex couples is none of those things.

    DENYING marriage to SAME sex couples certainly is.

  • 96. bayareajohn  |  April 20, 2014 at 8:25 pm

    Right, just like you and your buddies weren't the ones arguing that 7,000 years of male-only voting and of slavery were irrational, bigoted, or prejudiced. Our point entirely. Good to finally agree on SOMETHING.

  • 97. sfbob  |  April 21, 2014 at 11:51 am

    For most of the past 2000 years…and longer…the overwhelming majority of child-producing relationships did not involve recognition of parents by either state or church. While illegitimacy as such was certainly known, nobody much cared about it except where the disposition of significant amounts of money and/or property were concerned.

    And over a good portion of human history slavery of one form or another was recognized as perfectly acceptable under a variety of conditions. Given the long history of that institution are you suggesting it be reintroduced? For most of human history, at least in the West, women were considered legally inferior to men and few questioned that either until relatively recently.

    Tradition and long-standing practice are not, as has been noted by the courts numerous times recently, by themselves acceptable arguments in favor of the constitutionality of any laws.

  • 98. Background Gal  |  April 20, 2014 at 12:36 pm

    Nice way to spin away from your earlier contention that all SS couples would suddently find themselves in marriages that would prevent getting a marriage license.

    Maybe the talkback section at NOM isn't your best resource for actual fact.
    On this, try the National Conference off state legislatures, they have a full detail on common law marriage. Actual fact alert!

  • 99. Dr. Z  |  April 20, 2014 at 7:23 pm

    JustMe does not engage with rational thought.

  • 100. bayareajohn  |  April 20, 2014 at 8:21 pm

    Agreed, it's obvious that as he plays out each overheard argument until it dead-ends due to pesky facts and reasoning, he just goes back to his intellectual superiors at NOM to get the next argument on the list. We and he are wasting our efforts here. =WE= can stop. I bet he and his group of multiple personalities can not.

    But damn it's hard to let fools talk unchallenged. There's always the slight possibility that some other fool would take the silence as a lack of defensibility.

  • 101. B&E  |  April 22, 2014 at 7:54 am

    Please stop feeding the trolls.

  • 102. JayJonson  |  April 19, 2014 at 7:02 am

    This article, from the Salt Lake Tribune, says that Utah is worried that the Kitchen case will be dismissed on a standing issue and that therefore Judge Shelby's ruling will stand. Any thoughts about that?

    Here is the money quote:

    "During Utah’s arguments last week, Judge Jerome A. Holmes — widely considered to be the "vote to get" in the case — asked Tomsic to explain why the defendants her plaintiffs had singled out were appropriate.

    Further, he asked whether the state continued to have the right to appeal the case, given that Salt Lake County Clerk Sherrie Swensen declined to appeal Judge Shelby’s Dec. 20 decision to overturn Utah’s same-sex marriage ban.

    "You sued the clerk of court," Holmes said, referring to Swensen. "But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case. "

    Tomsic argued that because the governor and the attorney general have authority over the county clerks in Utah — unlike in other states where clerks who issue marriage licenses are members of the judicial branch of government — they are, ultimately, the proper authorities."

  • 103. Retired lawyer  |  April 19, 2014 at 3:04 pm

    Gay couples win if the 10th Circuit holds that no one has standing to appeal and Judge Shelby's decision stands. This would be a parallel to the Perry prop 8 case; the Supreme Court held that Dennis Hollingsworth and the other intervenors had no right to appeal Judge Vaughn Walker's decision, hence everything that happened in the 9th Circuit should not have happened at all (the 9th's decision was "vacated") , and Judge Walker's decision became final, and all stays of his injunction were lifted.

  • 104. bayareajohn  |  April 19, 2014 at 8:42 pm

    Turning away on standing is an appellate cop-out, sought out to prevent having to make a precedent from a higher court.

  • 105. TKinSC  |  April 21, 2014 at 1:02 am

    I disagree with your prognosis. If a state law is involved, then the state has a justiciable interest in the case, independent of who the original party was. And besides, the district court injunction applies to the entire state, not one county (such as happened in Cook County, IL for instance, and it's worth noting that state officials didn't object there as is the case in Utah).

    That said, if the Gov/AG are declared standingless, what it will mean is that the Salt Lake County clerk can (must?) continue issuing licenses, but the State of Utah will continue to be free (required?) not to recognize them. That would be a peculiar situation indeed.

  • 106. Lynn E  |  April 22, 2014 at 1:31 pm

    What if they hold that the State Representatives in the suit should not have had the suit brought against them. They could toss Judge Shelby's ruling on those grounds (although there was a County Clerk in the lower decision, so that fact may prevent this finding). Standing is just a way of making a decision without making a decision; akin to a Governor allowing a law to become law without adding his name to it. It's a non-position.

  • 107. Lynn E  |  April 21, 2014 at 9:26 pm

    At least one County Clerk refused to issue licenses until the Governor and AG issued a direction to comply with Judge Shelby's ruling. As a Utahn, I was somewhat surprised by the standing question from the Judge. Since this case was brought by a combination of individuals, some already married in other States, the Governor and Attorney General have direct responsibility for the enforcement of the Constitutional Amendment.

  • 108. Eric Koszyk  |  April 19, 2014 at 8:07 am

    In Virginia, "Three constitutional scholars, including the principal architect of Virginia's current constitution, have filed court papers supporting Attorney General Mark Herring's decision not to defend the state's prohibition of same-sex marriage."


  • 109. Retired lawyer  |  April 19, 2014 at 8:43 am

    Weird coincidence: one of the three scholars, Prof. Carl Tobias of the University of Richmond School of Law, is also one of the authorities quoted in the Salt Lake Tribune article posted above by JayJonson, with reference to Kitchen v. Herbert.

  • 110. Michael Grabow  |  April 21, 2014 at 10:54 am

    I see him quoted in a massive amount of articles on the topic.

  • 111. TKinSC  |  April 21, 2014 at 12:52 am

    It's one thing for the AG to determine that something is a lost cause that he won't spend state resources on (although it's interesting to note how many of the AGs doing that are Democrats). It's quite another for him to jump ship and throw his office's weight *against his client*. As far as I'm concerned, that's an impeachable offense.

  • 112. StraightDave  |  April 21, 2014 at 6:44 am

    The AG's client is the state's best interest, not some brain-dead law that was born of all sorts of stupid and illegitimate reasons. He's not just conserving the taxpayers' money, he's standing up for their civil rights, health, welfare, and also their financial interests. I think that's doing a pretty damn good job for his clients.

    And just for icing on the cake, his oath of office also includes upholding the US Constitution. That is his "prime directive".

    Any other questions?

  • 113. Michael Grabow  |  April 21, 2014 at 11:03 am

    I think you may have missed this part:

    "THREE CONSTITUTIONAL SCHOLARS, including the PRINCIPAL ARCHITECT of VIRGINIA'S CURRENT CONSTITUTION, have filed court papers supporting Attorney General Mark Herring's decision not to defend the state's prohibition of same-sex marriage."

    Something tells me they know better than you.

  • 114. KarlS  |  April 21, 2014 at 2:45 pm

    Only ignorant bigots consider it an 'offense'. He's simply doing his job as he sees fit. Now go out and play in traffic.

  • 115. Eric Koszyk  |  April 21, 2014 at 8:01 pm

    Good luck doing that. As a resident of Virginia I can tell you that there is much more chance of Herring becoming the next governor than being impeached for him doing his job and protecting the rights of Virginians

    By the way his predecessor, Republican Ken Cuccinelli, did the same thing. I wonder, did you ever call for his impeachment?

  • 116. ragefirewolf  |  April 19, 2014 at 8:38 pm

    Interesting strategy in a new state court case in Wisconsin. Worth a read.

  • 117. Lymis  |  April 22, 2014 at 9:36 am

    The criminal penalties in Wisconsin for same-sex couples who are Wisconsin residents who marry out of state make it a unique parallel to the Loving case. Some people try to claim that is was precisely the criminal penalties the Lovings faced that made the case something for the Supreme Court. (I disagree, but that's beside the point.)

    It's hard to imagine that it would be the deciding factor for SCOTUS, but it does add a unique twist and an added urgency – as well as an even sharper equal protection argument.

  • 118. Margo Schulter  |  April 19, 2014 at 9:29 pm

    Ragavendran, kudos from me also for your efforts in producing that transcript for the Oklahoma case, and your offer to provide an unofficial transcript for Kitchen v. Herbert also! I’ve had problems understanding the audio recordings that maybe are at least in part software-specific, so that your transcriptions are invaluable to me and others in this situation.

  • 119. Margo Schulter  |  April 19, 2014 at 9:54 pm

    Now that, thanks to Ragavendran, I’ve been able to read the defense’s reliance on Baker v. Nelson, the main thing I’d add as an indication that Baker is no longer governing precedent is a look at how Justice Scalia’s dissent in Windsor might have read if he had thought that this 1972 summary dismissal still controlled. How about:

    Sadly, the wisdom of Congress as the representative body of the People must yield to the opinions of five justices of this Court and the usual contingent of “enlightened” academics in the social sciences. But defenders of definitions of traditional marriage as enacted by the States are happily still clad in the invincible panoply of our decision in Nelson v. Baker, which this ruling, however otherwise disastrous and ill-advised, does not — at least not yet — overrule.

    Of course, Scalia says nothing of the kind, but rather that challengers of State marriage bans are now well armed with the reasoning of Windsor to press due process or equal protection claims. It’s curious how with Baker, also, his dissent is a powerful indication that marriage equality at the State level now is, to say the very least, “a substantial federal question.”

  • 120. david  |  April 20, 2014 at 6:17 am

    A request from outside interest for en banc hearing all cases in 6th circuit

  • 121. tbpitt  |  April 21, 2014 at 11:27 am

    In the PA Whitewood v. Corbett, both sides are looking to the judge to issue a summary judgement and drop the trial.

  • 122. Michael Grabow  |  April 21, 2014 at 12:31 pm

    Great news!!

  • 123. Michael Grabow  |  April 21, 2014 at 12:40 pm

    Boy o boy. PA, AR, OR, 10th circuit, all of the upcoming circuit cases…keep them coming!

  • 124. Reformed  |  April 21, 2014 at 1:37 pm

    Does this mean that there will be no objections from the defendant side?

  • 125. ebohlman  |  April 21, 2014 at 1:51 pm

    Yes. From the linked press release: "The commonwealth, which has agreed there is no need for a trial, is expected to file its own motion for summary judgment today."

  • 126. ebohlman  |  April 21, 2014 at 1:39 pm

    Yeah, except to popcorn makers: an actual trial in front of Judge Jones would have been a very entertaining spectacle. However, it is not for the taxpayers of Pennsylvania to pay for our entertainment.

  • 127. SeattleRobin  |  April 22, 2014 at 5:02 pm

    I have to admit that I was a little disappointed at the news for this very reason.

    But I guess the writing is on the wall from the Prop 8 and Michigan trials that expert witnesses for the defense don't fare well. The State in this case has none, so a trial would be a bit silly (and less entertaining).

  • 128. Rose  |  April 21, 2014 at 1:37 pm

    Why ask for something that the State aka the losing side will NOT accept and appeal? At least with a trial….there is a record of what silly ass evidence was used by the State to justify their animus towards a group of individuals!!!

  • 129. Pat  |  April 21, 2014 at 2:36 pm

    Wow! The article says "A trial became unnecessary after the commonwealth stated that it will not call any experts to counter the plaintiffs’ argument that there is no rational reason why lesbian and gay couples are excluded from marriage, nor does it plan to dispute the specific harms caused to the plaintiffs by the marriage ban."
    So, why would they wait until way after a trial was scheduled in order to decide they won't even call any experts to counter the plaintiffs' arguments? It seems that they should have either come to their senses much earlier or that they would have gone to trial anyway. The timing seems odd, or am I missing something?

  • 130. davep  |  April 21, 2014 at 3:26 pm

    Maybe the state took a good look at the Regnerus fiasco from last month's Michigan trial and realized they had nothing to offer.

  • 131. Retired lawyer  |  April 21, 2014 at 3:48 pm

    I think that you are right, davep. The trial before Judge Bernard Friedman in DeBoer v. Snyder featured all of the most prominent and most widely quoted "expert" social scientists trotted out by our opponents. In his capacity as the trier of facts, Judge Friedman shredded them, and was so contemptuous of Mark Regnerus that I expect that defense counsel across the country will never so much as mention him again.

  • 132. davep  |  April 21, 2014 at 3:51 pm

    Do you mean his 'study' will become 'the defense that dare not speak its name'? : )

  • 133. Retired_Lawyer  |  April 22, 2014 at 4:16 am

    Well put!

  • 134. Mike in Baltimore  |  April 21, 2014 at 6:46 pm

    It could be that the state of Pennsylvania took a look at who the judge was (John E. Jones III) and (belatedly, maybe after a serious internal intraoffice argument) remembered the judge's ruling in Kitzmiller v. Dover Area School District, where he not only dismissed the 'expert witnesses', he tore them a new one in his opinion.

    Maybe the state doesn't want it's 'expert witnesses' destroyed like Regnerus and the 'experts' were in the previous case, thus 'saving' them for other cases?

  • 135. ebohlman  |  April 22, 2014 at 10:28 am

    Who was the state planning to call? Girgis, Regnerus, Price, and Allen are now damaged goods; who's left? Paul Cameron? George Rekers? Maybe they forgot that David Blankenhorn switched sides and were planning to call him.

  • 136. Craig Nelson  |  April 22, 2014 at 3:18 pm

    Quite. There is now no-one left to call without looking very silly. And to be fair even Michigan was pushing the envelope somewhat. Post Michigan it's just not an option. It would be a very lop sided 'trial'. I am guessing they are free to appeal the ruling should they so wish or alternatively someone with standing could be found who might appeal the ruling.

  • 137. StraightDave  |  April 22, 2014 at 10:08 am

    It still not clear to me if PA is dropping its defense, offering only a pro-forma defense, or relying purely on legal arguments as opposed to expert testimony. I'm assuming they are looking for summary judgement based on legal arguments in defense of their laws. If they were really throwing in the towel, we would have heard about it more loudly and clearly. This one article was so out of left field that I don't know what to make of it as far as where the the state's head is at..

  • 138. Zack12  |  April 21, 2014 at 12:45 pm

    IMO, OR is going to be the 18th state with full marriage equality. Would be amazing to see PA be the 19th.

  • 139. SPQRobin  |  April 21, 2014 at 1:35 pm

    Oregon won't be appealed, but Pennsylvania will probably be another stay and an appeal taking several months…

    There's also a lawsuit in state court, Ballen v. Corbett, but I haven't seen any progress on that.

  • 140. ebohlman  |  April 21, 2014 at 1:58 pm

    There's also another Federal case (don't have the name at hand) on out-of-state recognition, and a state case appealing the ruling ordering the county court clerk who was issuing licenses last year to stop.

  • 141. SPQRobin  |  April 21, 2014 at 2:06 pm

    I know. In total in Pennsylvania, there is:
    – Whitewood v. Wolf (federal court; Judge John E. Jones III; full SSM case)
    – Palladino v. Corbett (federal court; Judge Mary A. McLaughlin; recognition of out-of-state SSM)
    – Pennsylvania Health Dept. v. Hanes (state court; concerning the county clerk that issued licenses)
    – Ballen v. Corbett (state court; full SSM case)

  • 142. Guest  |  April 21, 2014 at 2:39 pm

    How come Oregon won't be appealed? Is that a lack of standing?

  • 143. SPQRobin  |  April 21, 2014 at 2:45 pm

    The state is not defending and there are no other defendants. There is basically nobody who is seeking to have the ban upheld.

    From… "Teresa Harke, a spokeswoman for Oregon Family Council, which opposes same-sex marriage, said the organization did not seek to get involved in the Oregon case or file a legal analysis because it does not have legal standing."

  • 144. Bruno71  |  April 21, 2014 at 3:11 pm

    They would have standing to defend the case if the judge granted it to them, and they could certainly file a legal analysis. They just couldn't appeal the ruling. Very interesting.

  • 145. Bruno71  |  April 21, 2014 at 3:20 pm

    Speak of the Devil, here comes NOM:

  • 146. davep  |  April 21, 2014 at 3:31 pm

    Ha! They want to intervene two days before the trial date? Nope. Ain't gonna happen. Too little too late.

  • 147. sfbob  |  April 21, 2014 at 3:39 pm

    Lots of luck to them. On what possible basis could they claim injury?

  • 148. Zack12  |  April 21, 2014 at 3:43 pm

    We can't impose our religious beliefs on everyone. WAAAHHH
    That is basically all they have.

  • 149. Schteve  |  April 21, 2014 at 10:46 pm

    They don't have to be personally injured to intervene as a defendant; that is precisely what was allowed to do in Perry. Granting such a request is not unusual in district court when the named defendants decline to defend a case, as a way to ensure both sides of the argument are represented fully. Intervenor-defendants still would not have standing to appeal a ruling, however.

  • 150. Dr. Z  |  April 22, 2014 at 2:15 am

    Not the same situation here. represented the sponsors of the Proposition 8 initiative; their legal interests in defending the law were still being debated in 2009 when the case was brought in federal court (and their lack of Article III standing has now been addressed by SCOTUS in the Hollingsworth v Perry case.)

    NOM, on the other hand, had nothing to do with passing Oregon's Measure 36. Its sponsor was the Oregon Christian Coalition.

  • 151. Schteve  |  April 23, 2014 at 3:47 am

    Judge Walker certainly had no doubt that lacked standing when he granted them intervenor status, as he rejected their motion to stay his order citing lack of standing.

    If it were done again, a judge would still be able to grant intervenor status to, or in this case the National Organization against Marriage. That's not to say one would be likely to.

  • 152. Bruno71  |  April 21, 2014 at 4:03 pm

    What I find absolutely extraordinary is that the supposed single organization responsible for fighting marriage equality nationally would be so slow on the uptake here. Did they not realize no one else was defending the law? Isn't that something they should have wanted to know sooner? Amazing.

  • 153. Zack12  |  April 21, 2014 at 4:07 pm

    They knew back in February this would be the case and if they had asked back then, they might have been able to defend the ban.
    But waiting two days before the arguments? Not going to happen.
    MOre to the point, the Prop 8 case set the standard, NOM is going to be shown the door.

  • 154. Bruno71  |  April 21, 2014 at 5:16 pm

    I really think they must've thought the local Oregon bigots would step in. I can't understand any reason why else they'd let this go so late, other than the obvious point that they're extremely poorly run.

  • 155. Dr. Z  |  April 21, 2014 at 7:04 pm

    The local bigots are tired of fighting these battles, as are some of the older members of the LGBT community. Don't forget Scott Lively got his political start here in Oregon back in the late 1980's; we've been thru these battles many times.

  • 156. Zack12  |  April 21, 2014 at 8:11 pm

    Sad to say but the local bigots are more focused on passing the "religious freedom" bill this fall then worrying about equality in Oregon.
    It sickens me that the bill will even be allowed to get put on the ballot.

  • 157. Dr. Z  |  April 21, 2014 at 8:17 pm

    It may yet fail to qualify. That would be a pleasant surprise.

  • 158. Stefan  |  April 21, 2014 at 9:08 pm

    They haven't even begun collecting signatures yet as it's tied up in court over the language of the question. They will only have until July to collect remember.

  • 159. JayJonson  |  April 22, 2014 at 3:59 pm

    Judge McShane just denied the NOM's attempt to delay tomorrow’s scheduled oral arguments. The oral arguments will proceed as scheduled tomorrow afternoon at the Federal Courthouse in Eugene. However, the judge will consider NOM’s motion to intervene in the case and has scheduled oral arguments on that issue for May 14th. If the motion to intervene is accepted, Judge McShane would then schedule a second briefing schedule on summary judgement or move the case to trial. In other words, NOM has succeeded in delaying the ruling.

  • 160. JayJonson  |  April 21, 2014 at 3:35 pm

    The article says that Eastman would represent them in court if the judge allows it. I guess they no longer trust Cooper to represent them. Matt Barber must be busy.

  • 161. davep  |  April 21, 2014 at 3:52 pm

    Cooper is busy too. Something about wedding plans for his daughter…

  • 162. Dr. Z  |  April 21, 2014 at 5:34 pm

    Obviously NOM has no standing – it's no good claiming they represent a (unnamed?) county clerk. The clerk would have to intervene, not NOM, and even then it would do no good because the Oregon Supreme Court already ruled in 2005 in Li and Kennedy v. State of Oregon that a county clerk cannot represent the state in matters of marriage recognition. That's why the SSMs performed by the Multnomah County clerks were invalidated, because clerks do not set state policy..

  • 163. Zack12  |  April 21, 2014 at 6:00 pm

    Ironic that another one of the bigot's "victories" has come back to bite them.

  • 164. Dr. Z  |  April 21, 2014 at 7:00 pm

    In rereading NOM's press release I notice they didn't actually claim to "represent" the clerk. They said that one of their "members" was a county clerk in Oregon. But knowing how litigious the NOM is about protecting the identity of their donors, I rather doubt that NOM will ever name this clerk, citing fear of imminent persecution.

    Really, NOM is getting desperate. One of their two wealthy donors must have asked Brown rather pointedly what he was going to do about this.

  • 165. Bruno71  |  April 21, 2014 at 7:39 pm

    It's probably just posturing to make it look like they didn't do ABSOLUTELY NOTHING while the evil left usurped the rule of law and let a gay judge make law for the ________ bazillion Oregon voters who enacted the ban a decade ago.

  • 166. Dr. Z  |  April 21, 2014 at 8:19 pm

    Gives them an opportunity to gay bash the judge for denying their motion – good for fundraising. Never mind the fact that NOM failed to submit a timely motion, as the Oregon ACLU pointed out.

  • 167. Zack12  |  April 21, 2014 at 8:25 pm

    Indeed, if nothing else, the fact they waited 48 hours before the ruling.. that won't fly.

  • 168. Zack12  |  April 21, 2014 at 3:31 pm

    I'd have to look up the cases but I do remember hearing Prop 8 was NOT the first time a case has ended up at the Supreme Court where the state had refused to defend a law.
    But in those cases, the people defending it were able to show harm being done to them.
    All the Prop 8 backers had, like the Oregon Family Council does, is the fact they can't impose their religious beliefs on everyone else.
    That doesn't come even close to showing any kind of harm if the law isn't upheld.

  • 169. Michael Grabow  |  April 21, 2014 at 1:55 pm

    The court is expected to hand down a ruling on the Oklahoma ban next week.

    Has anyone heard this elsewhere?

  • 170. davep  |  April 21, 2014 at 2:05 pm

    Whoa, had not heard that. I wonder what info they have that would indicate this?

  • 171. KarlS  |  April 21, 2014 at 2:42 pm

    It hasn't made its way into any of the local (Okla) media. That I've noticed anyway… Hmmmm not sure how I feel about that (if it's true)…

  • 172. Pat  |  April 21, 2014 at 2:44 pm

    If that's true, isn't it indeed odd that they would ALREADY issue the OK ruling and wait for the Utah ruling? Wouldn't that suggest that they just decided to punt on standing?

  • 173. KarlS  |  April 21, 2014 at 2:49 pm

    Well, it sure would explain the quick response…but it's the same circuit so it's not like they can hide from the issue by doing it that way. I think the CO channel 9 report might be erroneous. But anything's possible I suppose.

  • 174. Guest  |  April 21, 2014 at 2:50 pm

    Yeah, either that or improper parties or it's just a typo where the author intended to say "next month."

  • 175. Ragavendran  |  April 22, 2014 at 10:23 am

    I contacted the reporter, Summer Nettles and she clarified that it was a mistake:
    "Thank you so much for bringing this to my attention. Unfortunately, I mis-read an earlier report. The cases are “under submission and the court is (continuing to work) on a decision together,” according court clerk Betsy Shoemaker."

  • 176. Michael Grabow  |  April 22, 2014 at 10:59 am

    Dang! I thought it might be too good to be true. Thanks for reaching out for clarification!

  • 177. KarlS  |  April 22, 2014 at 12:44 pm


  • 178. Margo Schulter  |  April 21, 2014 at 3:10 pm

    Ragavendran and all, to fill in one detail in Campbell’s last statement near the very end of your excellent transcript of the Tenth Circuit oral argument in Bishop v. Smith, the second case he cites is Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981).

    A quick assessment is that it’s very readily distinguishable from the marriage equality cases, as well as an antiquated affirmance of gender-specific statutory rape laws (essentially on the ground that only underage women are put at risk of pregnancy).

    There are some powerful dissents, and California adopted in 1993 a gender-neutral statute prohibiting “unlawful sexual intercourse” with a nonspouse under the age of 18 (Penal Code Section 261.5, replacing the version at issue in Michael M.).

    By 2000, all 50 States had gender-neutral laws — so unless one of them has gone retrogressive, Michael M. is now academic, although it still stands as one of the Court’s low moments of “not-so-heightened scrutiny” on sex discrimination.

  • 179. Margo Schulter  |  April 21, 2014 at 3:35 pm

    An interesting aspect of Michael M. v. Superior Court of Sonoma County is that Justice Rehnquist, in his plurality opinion, remarks that “the traditional minimum rationality test takes on a somewhat `sharper focus’ when gender-based classifications are challenged.” 468 U.S. 464, 468.

    So Rehnquist evidently saw what’s often been termed “intermediate scrutiny” for gender discrimination as a kind of rationality-plus, interestingly rather like one of the readings of Justice Kennedy’s decisions such as Romer.

    And this might tie in with one side of a remark by Judge Holmes at the argument of the Utah case, Kitchen v. Herbert, that if the level of scrutiny is anything higher than minimal rationality (the kind of test used for economic legislation), then it looks like Utah loses!

    Under “rationality-plus,” a jurist like Justice Rehnquist so disposed might be able to find some persuasive purpose in a statutory rape law with a claimed purpose of “preventing teenage pregnancies, to which only underaged females are subject” — although the four dissenting justices very persuasively argue that there is no such cogent rationale for not pursuing this purpose in a gender-neutral way.

    However, the alleged rationales for marriage bans are so convoluted and unpersuasive that not even the level of “rationality-plus” applied by the plurality and by Justice Stewart in his concurrence could save them.

  • 180. Michael Grabow  |  April 21, 2014 at 4:16 pm

    Am I crazy, or was there a post made about PA around 4pm that was quickly taken down?

  • 181. davep  |  April 21, 2014 at 4:27 pm

    There's a comment from "tbpitt" a few comments above, is that what you were looking for?

  • 182. Michael Grabow  |  April 21, 2014 at 5:39 pm

    No, sorry, I meant an actual post about the PA case, not a comment. Thanks though.

  • 183. sfbob  |  April 21, 2014 at 4:48 pm

    If I leave this site and then return, sometimes responses to comments seem to disappear. You will find there is a link that reads "[x number of] replies." Clicking that will show the responses; clicking it again will hide them once more.

    Does that help? I have found it confusing on more than one occasion.

  • 184. bayareajohn  |  April 21, 2014 at 5:23 pm

    Yes, it is more confusing because it only happens when the reply chains get long in a total talkback that has gotten long. Didn't used to happen because the comments didn't used to be so plentiful. (146 posts in this topic at the moment!)

    If you are coming into a topic from a link on the new posts area at the left, sometimes you seem to dead-end to no post because either there are so many posts that the page flip occurs before the page is complete to the point of the post you want, or the post is inside a collapsed REPLY view-switch. It makes it more challenging that we'd like… though the only probable cure is fewer posts!

  • 185. SoCal_Dave  |  April 21, 2014 at 8:54 pm

    I think that happens when total comments goes over 100.

  • 186. Margo Schulter  |  April 21, 2014 at 9:20 pm

    This is just a quick correction to my cite at comment 139, which should be 450 U.S. 464, 468 (somehow I typed the page number as also the volume number).

  • 187. Margo Schulter  |  April 21, 2014 at 9:33 pm

    Ragavendran, while you’ll want to check this, I seem to recall that the other case cited by Campbell near the very end of the Tenth Circuit argument may have been Rostker v. Goldberg, 453 U.S. 57 (1981).

    This was a case which sustained selective service registration for males only, with the policies of the armed forces at that time to exclude women from combat positions, and judicial deference to Congress and the armed forces in military affairs, as factors.

    As in Michael M. v. Superior Court of Sonoma County, there are some powerful dissents, which seem timelier than ever with the decision to admit women servicemembers to combat roles as well as the end of DADT.

    If it is Rostker v. Goldberg, then I what I might see is the defense grasping for any Supreme Court precedent sustaining a sex-based classification, especially if “procreation” is somehow involved, as in Michael M..

    For the marriage cases, some of the equal protection cases in the 1970’s dealing with gender classifications affecting child custody and adoption and the like would seem much more relevant, and those weigh against a “moms and dads are not interchangeable” rationale.

  • 188. Ragavendran  |  April 21, 2014 at 11:04 pm

    I've completed transcribing the oral argument in Kitchen. Here it is. It was nearly twice as long, so twice as hard, but I'm glad I finished! As before, feel free to point out corrections/clarifications as comments in this Google Doc.

    I learned A LOT in doing this, and had several laughs in the process, since it has been a while, and I urge you all to go through the oral argument again – it's worth it! Thank you for all of your encouragement – after my ordeal in transcribing Bishop, I might not have embarked on the much longer Kitchen mission if not for your support and appreciation!

  • 189. Retired lawyer  |  April 22, 2014 at 3:22 am

    I just finished reading your transcript, Ragavendran, and you did a superb job. Judge Holmes' sparring with plaintiffs' counsel on the issue of rational basis or heightened scrutiny and his repeated references to the Loving case hints to me that he may favor heightened scrutiny based on the gender discrimination inherent in excluding same-sex couples from marriage. One minor, but funny item has to be noted. Defense counsel probably described Maggie Gallagher as a commentator, rather than a common hater.

  • 190. OctaboonaA  |  April 22, 2014 at 7:35 am

    I went through and tried to resolve as many of the indiscernible portions as I could.

    The only other point I had was that on page 14 you missed out the word "get" from the sentence "and so those couples and their children are able to "get" federal benefits now"

  • 191. Ragavendran  |  April 22, 2014 at 10:43 am

    Thanks a bunch! I've made all these corrections and updated it. If you can spare the time, I'd appreciate your help in doing the same for the Bishop transcript. The Google doc is here, and the transcript is here.

  • 192. OctaA  |  April 22, 2014 at 12:05 pm

    I've done what I can, I just wanted to thank you for creating the transcripts. It must have been a much more time consuming task than simply trying to fill in some blanks.

    Very grateful.

  • 193. Ragavendran  |  April 22, 2014 at 12:35 pm

    You're welcome! Yes you're right, nevertheless, I appreciate your contribution – it helps to have a second person listen to the same audio and confirm what was said or offer alternate suggestions πŸ™‚

  • 194. SPQRobin  |  April 22, 2014 at 1:39 pm

    On page 7, "fundamental class of different visions" should be "fundamental clash of different visions" I think.

    In any case, you did an awesome job! Must've been a lot of work!

  • 195. Ragavendran  |  April 22, 2014 at 10:48 am

    Yeah, especially on Page 22, when Kelly brings up Price-Cornelison, suggesting that it is a binding precedent for applying only rational basis review, both Lucero and Holmes jump on it and helpfully guide Tomsic through the holes in that argument and alternative ways of applying heightened scrutiny. Lucero suggested that it only applied to equal protection and not due process and Holmes suggested it only applies to sexual orientation and not gender discrimination. Sounds like these two will team up to give us a victory.

    And yeah, that's funny about Maggie. I listened to that part again, and it makes sense, but why oh why would he pronounce that word in two-parts "commen… tator…"? Ha ha…

  • 196. DrHeimlich  |  April 22, 2014 at 10:57 am

    I know that everyone in my row of the courtroom snickered when Schaerr mentioned Maggie Gallagher's name. There may have been more of a titter throughout the whole gallery that I wasn't fully aware of over our own quiet laughter. Perhaps Schaerr heard us and stumbled a bit in his presentation?

  • 197. davep  |  April 22, 2014 at 9:59 am

    Wow, thank you so much for doing this!

  • 198. Sagesse  |  April 22, 2014 at 3:19 am

    Prop 8 judge was emotional during testimony on gay conversion therapy, having experienced it himself [ABA Journal]

    "Vaughn Walker, the openly gay U.S. district court judge who presided over a California trial that led to the legalization of same-sex marriage, underwent "conversion" therapy to become straight, a new book states.

    "The story is shared in Forcing the Spring: Inside the Fight for Marriage Equality, the San Francisco Chronicle reports. Written by Pulitzer Prize-winning New York Times reporter Jo Becker, it is scheduled for release Tuesday.

    "Walker, who Becker interviewed, received the treatment in the late 1970s, according to the article."

  • 199. montezuma58  |  April 22, 2014 at 7:24 am

    Looks like a suit has been or will soon be filed in Georgia.

  • 200. ebohlman  |  April 22, 2014 at 11:43 am

    Now only 1% of the population lives in states without either marriage equality or marriage equality lawsuits (AK, MT, ND, SD)..

    Department of Southern Names that Sound Strange to Northerners: Judge Pinkie Toomer.

  • 201. OctaA  |  April 22, 2014 at 3:16 pm

    NE, KS and MS are similar to AK and MT in that they only have lawsuits related to marriage equality.

    Technically OH doesn't have a marriage equality lawsuit either, just an out of state recognition one.

  • 202. Pat  |  April 22, 2014 at 3:49 pm

    As far as I understand, the case in TN (Tanco) is also 'just' an out-of-state marriage recognition one (which would make a 9th state without a proper lawsuit targetting the marriage ban)

  • 203. Paul  |  April 22, 2014 at 6:49 pm

    Anyone know or have any indication of a time line for ruling? I know it's not defined, but I was just curious of any thoughts

  • 204. Stefan  |  April 22, 2014 at 8:32 pm

    Likely by the end of June would be my guess. 2-3 months seems to be a typical time frame with Circuit courts. However, because this case has been on an expedited track, it could very well be handed down sooner.

  • 205. Margo Schulter  |  April 22, 2014 at 7:15 pm

    Ragavendran, thank you so much for taking on not only Bishop v. Smith but also the much longer argument in Kitchen v. Herbert! For some reason Google’s link to their cached version gives me a 404 error, but I may be able to access the scribd version tomorrow from a local university terminal (my browsers don’t seem to support it).

    Although I seem unable to access the menu at Google Drive, I can note any corrections or guesses as to case names in comments here, as I did above for Bishop v. Smith.

    Again, warmest thanks for your diligence, determination, endurance, and sense of humor in the process! Bravo!

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