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Tenth Circuit hears arguments in challenge to Oklahoma’s same-sex marriage ban

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Tenth Circuit Court of AppealsThe second round of oral arguments in same-sex marriage challenges took place at the Tenth Circuit Court of Appeals here in Denver, Colorado. The three-judge panel that heard last week’s appeal in the case from Utah, Kitchen v. Herbert, heard today’s appeal from a challenge to Oklahoma’s same-sex marriage ban, Bishop v. Smith. In this case, a district court judge had ruled that the ban on performing same-sex marriages within Oklahoma is unconstitutional. Another set of plaintiffs had challenged Oklahoma’s provisions barring recognition of same-sex marriages performed outside of Oklahoma. The district court judge had rule that the couple who challenged those provisions lacked Article III standing.

Today’s argument was shorter than last week’s: each side was given 15 minutes, but the judges allowed more time for questions.

The Alliance Defending Freedom (ADF), an anti-gay organization that has been involved in defending several challenges, among them Prop 8 in California, represented Tulsa County Circuit Court Clerk Sally Howe Smith. The ADF attorney, James Campbell, first argued that courts should defer to the state’s legislative choices, so that only rational basis review – the most lenient form of judicial review – should be applied.

When he tried to make the argument that the ban isn’t sex discrimination because, he said, the amendment “does not discriminate… on the basis of sex” since both sexes are treated equally, Judge Holmes interrupted and redirected him to a discussion of Loving v. Virginia, the interracial marriage case. Judge Holmes pointed out that the state of Virginia in that case had argued essentially the same point: that because the ban affected both races equally, it didn’t offend the Equal Protection Clause. Holmes asked why that same logic wouldn’t apply to a same-sex marriage case.

Campbell suggested that the so-called “equal application” argument the Supreme Court rejected in Loving doesn’t apply at all here, because, he argued, the Supreme Court has never held it applicable in sex discrimination cases. In other words, in race discrimination cases, courts have held that even if a law affects both whites and Blacks equally, it’s not valid, but that’s not so in sex discrimination cases, according to the argument.

Campbell said that if a group has a distinguishing characteristic “relevant to the state’s interest” the state can act, and he cited a Supreme Court case (Cleburne) for that theory.

Like last week, the judges pressed the ADF attorney on the issue of fundamental rights: is marriage a fundamental right that can’t be taken away from same-sex couples, or are the plaintiffs asking for a “new” right to “same-sex marriage”? Campbell started to say that the court should decide the scope of the fundamental right at stake using the framework from a Supreme Court decision that had urged a careful description of the right at stake. But again Judge Holmes pressed him: why are we undertaking that analysis if there’s already a fundamental right to marry? “”Why don’t you explain why this shouldn’t fit” within the fundamental right of marriage?

Campbell cited three Supreme Court cases (Loving, Zablocki, Turner) suggesting that all of those involved opposite-sex couples. Plus, he argued, the Supreme Court’s 1972 case Baker v. Nelson decided the issue against same-sex couples.

Judges Lucero and Holmes both pushed Campbell to explain why Baker wasn’t implicitly overruled by United States v. Windsor, the Supreme Court decision striking down Section 3 of the federal Defense of Marriage Act (DOMA). Campbell suggested that the Supreme Court could “absolutely” have ruled the way they did in Windsor without implicitly overturning Baker.

Lucero and Holmes seemed to disagree: Lucero pointed out that Windsor was an Equal Protection (Fifth Amendment) case, which is the same issue raised in these challenges, except that it’s the Equal Protection Clause of the 14th Amendment. Holmes pointed to the Supreme Court’s citation to Loving v. Virginia, along with the statement that state marriage laws are subject to the constitutional rights of persons.

Campbell answered that it’s different in race discrimination cases: the race of a spouse is irrelevant, but, he said, the sex of each spouse is directly relevant to the public purpose of marriage.

When the plaintiffs’ attorney Don Holladay started speaking, he was interrupted by Judge Kelly (who had not yet asked a question), who said that the couples haven’t challenged statutes, which might affect Article III standing. Holladay responded that the state constitutional amendment subsumed all the statutes, so it was appropriate to bring that challenge.

The judges prodded Holladay on that question, with Lucero asking rhetorically, who could be sued if not the county circuit court clerk or the attorney general or governor?

Judge Kelly wondered if there was an “issue with respect to recognition” of same-sex marriages performed outside the state. He noted that the couple who brought that challenge “never approached any” officials regarding recognition of their marriages.

And like last week, Judge Lucero pressed the ADF attorney on the issue of children with same-sex parents. Since only one same-sex parent could adopt a child, “doesn’t that undermine” their arguments in favor of the ban?

Judge Lucero asked the ADF attorney about how same-sex marriage would affect opposite-sex couples: “[how] would a gay couple, electing to marry, having a stable relationship, having a child, how would that affect” a heterosexual marriage?

Lucero followed that up with a comment that it seems like the Oklahoma officials are saying “if gay marriage is allowed, that somehow that’s going to be a poison pill to marriage by heterosexual couples[.]”

The ADF attorney claimed that “no one knows for sure what the effects would be” if same-sex marriage is legalized, but he asked the judges to read two amicus briefs that point to worse outcomes for children of same-sex couples.

Judge Holmes interrupted to point out that the American Sociological Association “has a different take” on those amicus briefs. He noted their research says there’s “no difference” in same-sex and opposite-sex parenting. This issue came up in the Utah hearing as well: there, Judge Holmes suggested that if the research was “inconclusive”, the plaintiffs would lose – because the state would have a rational reason for the law.

The cases are expedited, so a decision could be expected relatively soon.


  • 1. Gregory in SLC  |  April 17, 2014 at 4:00 pm

    Court recording for 10th circuit Bishop v. Smith:

  • 2. Rik  |  April 17, 2014 at 4:13 pm

    ok can someone read those tea leaves for me?

  • 3. DrHeimlich  |  April 17, 2014 at 4:17 pm

    This is a re-post from the other thread (but more appropriate here anyway):

    I felt pretty sure of where Holmes really stood after the Kitchen hearing. I feel even more certain now after this. He again makes multiple references to Loving, and is particularly strenuous at around 9:44 in the audio. He seems to be exasperated at the attempt to ignore or differentiate these cases from Loving.

    Also, near the end of the hearing, there's an exchange about amicus briefs regarding "parenting studies," and the Oklahoma lawyer tries to cite some support of man-woman marriages as superior environments. It's Holmes — not Lucero — who interrupts to point out that the bulk of the studies discredit that opinion.

    So bottom line: we have Holmes. And there can be no doubt we have Lucero. During this hearing, he was frankly a better advocate for our side than the plaintiffs' actual lawyer (who got bogged down and spent all his time discussing standing and recognition). That makes 2 votes, and that makes for a win.

    As for Kelly? It feels possible he might rule against us on standing and not the merits. I don't know where that leaves him in Kitchen, but it does make me wonder if he might try to use standing as a way of passing on having to write an anti-gay ruling that would put him on the "wrong side of history."

  • 4. Rik  |  April 17, 2014 at 4:40 pm

    Thank you!

  • 5. Warren  |  April 17, 2014 at 5:17 pm

    I read in another article that Judge Holmes is the swing vote. Based on this article I'm thinking we'll win the double hitter in this round of cases.

  • 6. Michael Grabow  |  April 21, 2014 at 8:29 am

    Double header?

  • 7. jdw  |  April 18, 2014 at 9:38 am

    Thanks, Doc!

    Kind of thought the same thing: pretty confident (as in 90%) on Holmes after (i) denying the stay in Kitchen, and (ii) the Kitchen hearing. After this hearing, he's a dunker.

    Agree on Kelly. I appears to be looking for a reason to punt on the matter, knowing fairly well how SCOTUS/Kennedy will rule not when this is dropped on his lap. It doesn't appear that he wants to go all Scalia in a dissent.

  • 8. annajoy1  |  April 18, 2014 at 4:24 pm

    The only thing that seems a bit troubling is that Holmes said if the studies on child rearing were inconclusive then the plaintiffs would lose under rational scrutiny. Fingers crossed that Holmes feels the studies are not inconclusive.

  • 9. Dr. Z  |  April 18, 2014 at 5:32 pm

    I think you've gotten Holmes' position backwards. It's a little clearer in Scotty's summary of the Kitchen arguments:

    "In the final minutes of his opening argument, Schaerr tried to discuss parenting as a rationale for the ban, and the discussion went badly for his side. He was asked by Judge Holmes about the state’s letter, filed yesterday, addressing Mark Regnerus’ research. The letter had appeared to distance the state from Regnerus’ findings, seemingly leaving most of their legal arguments for the ban in shambles. Holmes asked “what’s left” of the state’s reliance on Regnerus and the state’s parenting rationale, if they’re backing away from his theory.

    Reacting to the question, Schaerr said that the science on these issues in inconclusive, and so there’s no proof for either theory.

    Holmes then asked, if the science is inconclusive, and the judges decide that laws that classify people on the basis of their sexual orientation warrant a heightened level of judicial scrutiny, doesn’t the state lose?"

  • 10. annajoy1  |  April 18, 2014 at 6:33 pm

    Thanks for this. My computer crapped out about half way through the audio, so I didn't hear that exchange. Everyone seems to think Holmes will rule for our side. Hope that happens.Sent from my iPad

  • 11. Dr. Z  |  April 19, 2014 at 6:56 am

    The quote above is actually from the Utah case rather than the Oklahoma case, but the same panel heard both. What Holmes was saying is that the state's path to winning the case is very narrow, they must show that rational basis applies AND that there is conclusive research supporting the rationale that the state is advocating (optimal conditions for raising children.) Note that, for the state to win there are many other things they must show as well, but if they can't at least show this then they have no case. That's what Holmes meant by "inconclusive." If the state argues what it usually does and says we don't know what the future harm may be (and therefore SSM should be banned until conclusive proof is available that SSM isn't harmful) then the state loses. The state can't both argue that there is a rational reason for banning SSM, while in the next breath arguing that the reason doesn't exist today but it could be found tomorrow.

    And given how Utah backed away from Regnerus at the last munute, that means Oklahoma has nothing to show.

  • 12. annajoy1  |  April 19, 2014 at 9:47 am

    Gay Marriage Watch has tweeted that the standing issue may derail the Utah appeal as well as the appeal in Oklahoma. Is this a real concern?Sent from my iPad

  • 13. Retired lawyer  |  April 19, 2014 at 10:22 am

    The named county clerk defendant declined to appeal, but Utah's governor and attorney general did. The defense is claiming that in Utah the county clerks are part of the executive branch, and thus report ultimately to the governor, so the governor has standing to appeal. This is simplifying somewhat. Remember, however, IF no one has a right to appeal, then Judge Shelby's opinion in our favor becomes the final judgment. I continue to think that all the attention paid to the standing issue in both of the oral arguments is all out proportion to its importance compared to other issues in the cases. If standing becomes a problem for our side, it is likely to involve only the out-of-state married couples seeking recognition of their marriages. The in-state couples seeking the right to marry are not likely to be adversely affected by standing issues in any way.

  • 14. annajoy1  |  April 19, 2014 at 10:26 am

    Good. Thanks for the thoughtful reply. Sent from my iPad

  • 15. annajoy1  |  April 21, 2014 at 3:48 pm

    Hi, Thanks for the response to my question RE standing in the Oklahoma appeal. Now there are a number of gay sites that raise the issue of standing in the Utah appeal. What is the thinking about this? Will we get to the merits and if not and the Utah appeal is dismissed on standing issues, is the case over for Utah or could it be raised again in appeal under new circumstances?Sent from my iPad

  • 16. Ragavendran  |  April 17, 2014 at 4:28 pm

    I'm working on a transcribing the audio (to the best of my abilities). Will have it uploaded and let you all know.

  • 17. RCChicago  |  April 17, 2014 at 5:07 pm

    This would be super, super, helpful, thanks. I'm surprised that a transcript isn't made available per the American Disabilities Act. Being able to read the arguments vs listening to them is much better for my comprehension. I'll be looking out for your post.

  • 18. grod  |  April 17, 2014 at 7:11 pm

    Thank you, that is no small task. Ranking the presenters, in my opinion James Campbell is a clearest communicators, easily drawns of comparative case law. He so engage Judge Lucero that he was permitted extra minutes. Gene Schaerr and Peggy Tomsic were tied for a distant second, tied because it's difficult for me to give relative weight to mental agility versus reliability of assertions. And because of my empathy bias in favour of Peggy. IMO, Don Holladay is a distant third. I want to address Holladay's weak performance on whether Tulsa's Sally Smith is the right defendant and the Bartons standing. Mr. Holladay lost these matters before Judge T. Kean and he may well have lost it here again. Why are our spokespersons struggling before their learned colleagues when those nine other favourable cases has put wind in marriage equality's sails. I take solace in Retired Lawyer's comment that seldom do oral arguments win/loose the day. But reading the text may change my mind. .

  • 19. Ragavendran  |  April 17, 2014 at 10:51 pm

    Done! See my comment under Brian's post.

  • 20. Rose  |  April 17, 2014 at 4:33 pm

    I haven't listen to ALL of this argument, but it seems that from what I have heard that it will probably be a 2-1 in both cases with a Stay and an appeal to SCOTUS.

  • 21. Keith  |  April 17, 2014 at 6:08 pm

    The conservative lawyer who defended California’s ban on gay marriage at the Supreme Court is at work on another project: planning his daughter’s upcoming same-sex wedding ceremony. Charles J. Cooper, a former top official in the Reagan Justice Department and onetime “Republican lawyer of the year,” learned of his daughter’s sexual orientation during the legal battle over California’s Proposition 8, according to journalist Jo Becker’s soon-to-be-released book chronicling the movement to legalize same-sex marriage.

    Full story at

  • 22. Keith  |  April 17, 2014 at 6:10 pm

    When it's one of "their own" how quickly they evolve.

  • 23. Paul  |  April 18, 2014 at 8:36 am

    I wonder if he'll apologize for all the pain that he caused to other couples?

  • 24. Steve  |  April 18, 2014 at 9:39 am

    Never. That's why he says he is "evolving". It's a way for him to avoid any responsibility for his past anti-gay activism (which goes a lot farther than just Prop 8).

  • 25. Bruno71  |  April 18, 2014 at 12:17 pm

    Also, defense lawyers aren't typically apologetic when they defend the indefensible.

  • 26. Tim  |  April 17, 2014 at 6:19 pm

    Smith-Kline and Abbot have responded to the en banc request. SK is opposed and Abbott supports it (which is interesting since they didn't appeal – this may not look good for them and their company). Link below. Anyone know what the next steps and timeline is?

  • 27. JimT  |  April 17, 2014 at 6:56 pm

    One of the meds I take is Kaletra and I drink Ensure as a supplement. I've been using both for several years. I'm going to write a letter to Abbott and let them know that they should not support this hearing and tell them that if they do I will switch meds and find another drink.

  • 28. Ragavendran  |  April 17, 2014 at 6:58 pm

    Interesting. According to the rulebook, "the requesting judge shall notify the panel and all other members of the court of any call, and shall forward a memorandum setting forth reasons […] within 7 days after the circulation of the simultaneous briefing." A vote will be taken 21 days after simultaneous briefs are submitted. All active judges will then have 14 days to vote.

  • 29. Cherylg  |  April 17, 2014 at 11:44 pm

    Tim, thanks for the news about the Smith-Kline en banc issue.
    You got me googling, and I think I found good news.

    Yes, Abbot wants en banc review, BUT for case issues unrelated to Judge Reinhardt's heightened scrutiny ruling.
    Abbott denies that they 'legally' discriminated. And spend 27 pages arguing that.

    I bumped into a website the 9th Circuit put out, because of media/public interest in this case. Unless I'm wrong, I see really good news for our issues.

    Here's the 9th's website, where we can keep posted.

    In Abbot's 27-pg brief, READ just P7.

    P7: "Abbott does NOT request review of the panel's holding that heightened equal protection scrutiny applies to classifications based on sexual orientation, or of its decision extending Batson to sexual orientation.
    Abbott condemns discrimination in all forms, including in jury selection, and no discrimination occurred here.
    But APART from the proper level of scrutiny or of its decision extending Batson, the issues presented here …. "

  • 30. Cherylg  |  April 18, 2014 at 12:12 am

    There's better yet. Smithkline submitted a terrific brief:
    "This case does not justify en banc revue."
    There are 16 readable, powerful pages defending and enhancing Judge Reinhardt's analysis. Signed by Atty Lisa S. Blatt, Arnold & Porter LLP.

    The brief was so good I looked her up.
    She heads Arnold & Porter LLP's Appellate and Supreme Court practice.
    – WSJ article: A Chat With Lisa Blatt, a Record-Holding Supreme Court Litigator

    The Smith-Kline Brief:

  • 31. Tim  |  April 18, 2014 at 7:14 am

    Thanks Cherylg. Since I posted I also found this from Scotusblog,,,

  • 32. Josh  |  April 17, 2014 at 8:08 pm

    Very nice article!! You won't find this detailed analysis anywhere else. Thank you, EOT (P8TT)!!

  • 33. Dr. Z  |  April 17, 2014 at 8:41 pm

    Meanwhile, in Oregon: for the first time, an openly gay federal judge will finally hear the challenge to Oregon's doomed DOMA law. It is virtually certain Oregon will join the ranks of marriage equality states, after having been among the first to issue (later invalidated) marriage licenses in March 2004. One of them was ours, and the pain of that invalidation lasts to this day even tho we remarried in Canada in 2005 (and will celebrate our 20th anniversary this November.)

    Anyway: a most remarkable judge. Very Portland.

  • 34. LK2014  |  April 17, 2014 at 9:16 pm

    Congratulations on both of your marriages, and all of your anniversaries! Good luck with Judge McShane, he sounds like an admirable man in and out of court.

  • 35. Dr. Z  |  April 17, 2014 at 9:51 pm

    If our luck holds, we can get re-remarried in May. Then we will have a "bingo" – five consecutive months (Feb Mar Apr May Jun) when we will have a marriage equality each month.

  • 36. Dr. Z  |  April 17, 2014 at 9:51 pm

    * anniversary.

  • 37. Stefan  |  April 17, 2014 at 11:01 pm

    Yah it should wrap up fast considering literally no one is defending it officially.

  • 38. Bruno71  |  April 18, 2014 at 12:22 pm

    Is anyone even defending it unofficially?

  • 39. Retired lawyer  |  April 19, 2014 at 10:35 am

    It will be interesting to see how the Court handles the complaint if, as seems possible, no one appears to defend. Does the Court enter a default judgment? Or does it wait for plaintiffs to move for summary judgment? If this was a run-of-the-mill debt collection case, a default judgment would be expected, but with a case of Constitutional dimensions…..?

  • 40. Ragavendran  |  April 19, 2014 at 2:13 pm

    I believe the hearing this coming Thursday IS on a summary judgment motion. But, as the article says, he will likely want to spend a lot of time to draft a careful opinion (striking down the ban, most likely) that doesn't seem biased by his personal life. A ruling could come down in May, most likely before the deadline for the ballot measure, so that there is time to suspend the initiative if necessary.

  • 41. Tim  |  April 17, 2014 at 9:15 pm

    Pat, Raga: Palladino v. Corbett (PA marriage recognition of out of state marriages)
    The Court has rescheduled oral argument on pending motions, moving it from May 28 to May 15 at 10 a.m.

  • 42. Ragavendran  |  April 17, 2014 at 11:04 pm

    Thank you, I've updated the sheet and calendar.

  • 43. Pat  |  April 19, 2014 at 2:22 pm

    Thank you for updating the spreadsheet: im travelling these days and dont have my laptop with me which makes it inconvenient to update google docs 🙂

  • 44. davep  |  April 17, 2014 at 11:12 pm

    I don't think I've every heard of one of these ME trials being moved to an EARLIER date before.

  • 45. Ragavendran  |  April 17, 2014 at 11:14 pm

    There was a telephonic status conference yesterday. I can only guess that all parties agreed to move it up. Wonder why, though.

  • 46. Tim  |  April 18, 2014 at 7:19 am

    I believe the governor was requesting it.

  • 47. Andy  |  April 17, 2014 at 10:53 pm

    It seems to me that a more compelling argument to say that Baker v. Nelson was overruled comes from the Prop8 case. THAT case was exactly the same as the current ones and couldn't possibly be decided if Baker was still valid. SCOTUS would have had to vacate the district court ruling; instead, they vacated the appeals ruling….

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

    Strictly speaking, no. Once they decided that none of the appellants had standing, the district decision was no longer a case before them and they couldn't review it until/unless someone with standing brought it to them (which nobody could because of the time elapsed).

    One could argue that the Ninth Circuit decided that Baker wasn't controlling in the case, but that entire decision was vacated and is thus non-precedential.

  • 49. Paul  |  April 18, 2014 at 7:46 am

    I'm struggling with Campbell's argument that "Loving is a case that involves racial discrimination, and race is irrelevant for any legitimate purpose of marriage. In contrast, the sex of the spouses is directly relevant to the Government's interest in procreation and child-rearing." That specific governments interest is most likely accomplished through adoptive, reproductive and family law. Not civil marriage law. Moreover:
    1. Equal Protection prohibits classifications from being drawn for “the purpose of disadvantaging the group burdened by the law." Romer v. Evans.
    2. Griswold v. Connecticut upheld the right of married couples not to procreate. The Supreme Court did not find a problem severing the link between marriage and procreation. And Turner found—even in the prison context —that no legitimate interest could support denying inmates the right to marry, despite their inability to procreate, let alone consummate the marriage.
    Am I missing something?

  • 50. StraightDave  |  April 18, 2014 at 7:59 am

    You're not missing anything, Campbell is.
    In Loving, the biggest argument was that race had EVERYTHING to do with the supposed purpose of marriage. At the time, having children was much more taken for granted than it is today. The biggest fear was that the mixed-race children would suffer from poor social treatment. But even that wasn't enough to save the law.

    It's hard to see how the non-existant children who can't even be born of a same-sex couple would suffer any worse social treatment than the actual living ones that the Loving ruling was willing to tolerate.

  • 51. Paul  |  April 18, 2014 at 8:45 am

    Scientific studies have continually found that Hispanic and black children are worse off than white children, that children of interacial children still do far worse than any of those groups. Even when they try to adjust for income, the results still are that white children do far better than any of those other groups.

    Even if the children of gay couples are shown to be worse off than the children of straight couples, that's not a reason to harm those children further by making their families unequal under the law. I've always found it fascinating that "christians", even if they do believe that the chidlren of gay people are somehow disadvantaged because they don't have a mother and a father, would want to hurt those children further by deporiving their families of basic legal rights.

  • 52. JayJonson  |  April 18, 2014 at 8:59 am

    As one attorney said in the Michigan trial, if the purpose of marriage was to have optimal child rearing, as measured by academic success, only Asians would be allowed to marry.

  • 53. sfbob  |  April 18, 2014 at 9:13 am

    I believe it was the judge who said that.

  • 54. sam  |  April 18, 2014 at 2:26 pm

    The judge took that line almost word for word from an exchange with a witness in the trial IIRC

  • 55. sfbob  |  April 18, 2014 at 9:17 am

    Campbell continues to repeat the myth that the purpose of marriage is the production and rearing of children despite the fact that not a single court ruling regarding marriage rights considers that to be central to the purpose of marriage. Nor does Oklahoma's definition of marriage reference children in any way–a fact which came to light here and elsewhere a number of times during the course of the recent trials. Oklahoma law defines marriage as a civil contract, essentially between two people who have the capacity to enter that contract. And that's pretty much it after you extract the extraneous language regarding the gender of the individuals involved.

  • 56. jdw  |  April 18, 2014 at 9:46 am

    He has to, with all of these arguments. They have nothing else if they don't keep rising issues that have been shot down. They'll keep rising them all the way to SCOTUS.

    At this point, the lawyers all know they have a loser unless Kennedy flips on this, or one of our four dies before SCOTUS hears the case and the GOP prevents a replacement from being appointed They have nothing unless the make up of SCOTUS changes, or it drops to a 4-4.

    So we're going to get wash:rinse:repeat all the way to the end. They'll only drop things that have gotten roasted, like Regnerus. Other than that… they've got nothing.

  • 57. StraightDave  |  April 18, 2014 at 11:36 am

    There's no way Kennedy can flip after Windsor. He's already got 7 toes across the line and even Scalia knows it. A 4-4 court may avoid a national mandate and let the 5th circuit slide for another decade, but the other circuits will take a huge bite out of the country and be upheld on a 4-4 vote. Even if we lose 1 justice, eventually Roberts has to look in the mirror and see his legacy.

  • 58. Zack12  |  April 18, 2014 at 12:46 pm

    I don't think Roberts cares about his legacy otherwise he wouldn't be handing our country over to the Robber Barons.
    More to the point, he has a lesbian cousin whom many have said he is close to and yet he voted to uphold DOMA and likely would have done the same for Prop 8.

  • 59. Terry  |  April 18, 2014 at 2:54 pm

    I don't believe he's considered close to her any more. Maybe gets a Christmas card, and is not estranged either. But not close per se.

  • 60. Zack12  |  April 18, 2014 at 3:18 pm

    I don't blame her. He made is perfectly clear that she and her wife should be second class citizens, I wouldn't be close to him anymore either.

  • 61. Terry  |  April 19, 2014 at 10:25 am

    This was even before the Prop 8 trial. I remember seeing a piece on her on The New Civil Rights Movement.

  • 62. Ragavendran  |  April 21, 2014 at 10:29 am

    I agree regarding Kennedy. He could have decided DOMA purely based on federalism, and the general principle that Courts should decide constitutional questions on the narrowest ground available would have meant that he shouldn't have gone further. But he did. Way farther than necessary for DOMA. Why? One possibility (and this is just my theory) is that, going into oral arguments, he wanted to put an end to the marriage debate last June by striking down both DOMA (federalism) and Prop 8 (14th Amendment). If you recall, he even offered to consider the Prop 8 ban as purely gender discrimination, which would leave the controversial issue of sexual orientation based discrimination untouched. Unfortunately, he couldn't gather a majority for overturning Prop 8, and knowing that he had lost, he began crafting a limited but strongly worded dissent that argued why the Court should have reached the merits (but didn't get to them).

    Simultaneously, he channeled his 14th Amendment violation thoughts regarding Prop 8 into the majority opinion in Windsor (replace 14 with 5) knowing that this added language would lead to exactly what is happening now with lower federal courts. Schaerr wasn't too far off when he commented during closing in the Kitchen argument regarding the proposition that "the Supreme Court with a wink and a nod was telling lower courts to recognize a constitutional right." Now, Kennedy might not have intended this exactly, but he did sow a seed in Windsor (that was grossly unnecessary for overturning DOMA as Scalia lamented), and he intended (at the very least) for the lower courts to nurture and shape the growth of that seed in any way they saw fit (with Scalia's guidance), in essence, multiplying the issue and bringing it back to the Court through several channels – enough appeals to choose one that presents the strongest case for overturning State bans (one that is clear of standing issues and such). I don't see Kennedy flipping. And, barring standing issues, Ginsburg, Breyer, and Kagan will join him. (Sotomayor already did in Prop 8.)

  • 63. Eric  |  April 21, 2014 at 10:56 am

    I'm not sure how you arrive at the conclusion that DOMA could have been dealt with as a federalism issue. The federal government is free to recognize marriage or not, what it is not free to do is to selectively apply that recognition in violation of due process and equal protection.

  • 64. Ragavendran  |  April 21, 2014 at 11:16 am

    That conclusion is Judge Lucero's and not mine. I just borrowed it:
    "If the Court had done that, and said, this is a federalism issue – the federal Government has no right to intrude into the terrain of the States – that would've ended the case. But the Court didn't do that. The Court went much further, and it said that this was a fundamental Fifth Amendment violation."

    This was during oral argument in Bishop.

  • 65. Retired lawyer  |  April 18, 2014 at 12:54 pm

    I agree with StraightDave that Justice Kennedy is unlikely to flip. I am hopeful that the next case will spell out a heightened scrutiny standard for sexual orientation cases. Justice Kennedy applied heightened scrutiny in the Windsor case, but without explicitly saying so– a point made by the 9th Circuit panel's decision in the gay juror case, SmithKline Beecham v. Abbot Laboratories. The panel in effect connected the dots made by Justice Kennedy, and established a heightened scrutiny standard for the 9th Circuit (assuming no contrary en banc action, a matter currently pending). Another point that has almost been forgotten: the Windsor decision affirmed the 2d Circuit's decision–which was based on a heightened scrutiny analysis. The Supreme Court alluded to that, neither endorsing nor repudiating it. Much will depend on which of the numerous cases making there way through appeals the Supreme Court decides to take. We can all break into flop sweat if it is a case that involves only non-recognition of a marriage lawfully celebrated in another state, instead of a direct challenge to a state's exclusion from marriage equality of its own residents.

  • 66. skrekk  |  April 20, 2014 at 11:50 am

    I'm pretty sure that the 2nd Circuit's ruling in Windsor was just rational basis, the fact that DOMA was not reasonably related to any legitimate state objective. It was Judge Tauro in the 1st circuit who examined the legislative record and discovered anti-gay animus and bible-babble, which is arguably using heightened scrutiny (at the same time he found no rational connection between DOMA and the stated legislative purpose).

  • 67. Retired lawyer  |  April 20, 2014 at 1:50 pm

    skrekk: The following is from the slip opinion in United States v. Windsor, pp. 4-5, in which Justice Kennedy describes the history of the case: "Before this Court acted on the petition [by the Solicitor General for certiorari before judgment], the Court of Appeals for the Second Circuit affirmed the District Court's judgment. It applied heightened scrutiny to classifications based on sexual orientation…."

  • 68. david  |  April 20, 2014 at 6:31 am

    DOMA attorney requesting to intervene in 6th Circuit.. wants heightened Scrutiny and en banc hearing

  • 69. Retired lawyer  |  April 20, 2014 at 8:15 am

    This is a bold move by Roberta Kaplan , one of the truly accomplished lawyers in the field of marriage equality, but the likelihood is slim that her client, a statewide Ohio gay group, will be allowed to INTERVENE in the appeal. More than likely, she will be allowed to submit her views as an amicus (friend of the court). Her contention, that a heightened scrutiny standard for gay discrimination, can be established in the 6th Circuit (displacing the existing rational basis standard) only by the court sitting en banc (as a whole) is probably correct, but Judge Friedman in the case being appealed, DeBoer v. Snyder, found that state prohibitions against same -sex marriages fail even the deferential rational basis test. Still and all, the presence of Roberta Kaplan in this litigation can only help the gay community as a whole.

  • 70. Michael Grabow  |  April 21, 2014 at 8:28 am

    I can't help but feel a victory is on its way.

  • 71. Margo Schulter  |  April 21, 2014 at 4:03 pm

    The opinion by Judge Jacobs for the Second Circuit in Windsor held that intermediate scrutiny applied to Section 3 of DOMA, since “homosexuals” constituted a “quasi-suspect” class.

    The opinion discussed some of the complications and uncertainties of rational basis review, and remarked: “Fortunately, no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case.”

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