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Marriage Equality Wins Big in Alaska

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South Dakota’s Attorney General says he’ll fight a lesbian couple in court to stop them from having their marriage recognized. Alaska’s highest court has ruled against the state’s marriage ban after a deliberation of over a year and a half. We have several new lawsuits, plus a major ruling coming this week in Arkansas.

May’s going to be a big month for marriage equality, starting with a ruling this week in Arkansas. Twenty couples filed suit nearly a year ago, and now Judge Chris Piazza has confirmed that he’ll issue a ruling by this Friday. This is a state lawsuit, but a separate federal lawsuit is also pending in Arkansas.

Meanwhile, we’ve had significant action in lawsuits in other states. In Alaska, the state Supreme Court ruled that gay couples and straight couples must be treated equally when it comes to property taxes. This is a complicated case. In fact, it took the Supreme Court over a year and a half to come to its decision. And it’s still not clear just how this will affect marriage equality, since the lawsuit was very narrowly focused on taxes. But it’s still a major victory: Alaska’s highest court has ruled that marriage discrimination violates citizens’ right to equal protection.

A religious group in North Carolina has sued the state over its marriage ban. The federal suit argues that the ban limits the religious freedom of ministers who wish to marry LGBT couples.

There’s a brand new federal lawsuit in Ohio. This follows a series of very narrow rulings that the state’s marriage ban is unconstitutional. And there are new plaintiffs in a Florida case. An organization there has added Arlene Goldberg to an existing federal lawsuit. Her wife Carol Goldwasser recently passed away, but the state is denying Goldberg access to her late wife’s social security. A new survey in Florida shows support for marriage equality at 56 to 39 percent.

And a new survey in Colorado shows support at a record high, at 61 percent to 33 percent opposed.

And finally, South Dakota’s going to get its first marriage equality lawsuit any minute now. Last week, lesbian couple Nancy and Jennie Rosenbrahn got married in Minnesota, and now they plan to file suit against their home state of South Dakota to get recognition. Attorney General Marty Jackley says he’ll fight the women in court.

173 Comments

  • 1. Ragavendran  |  May 5, 2014 at 10:40 am

    I think the Alaska win is being hyped up too much in this newswatch. The Court said nothing against the constitutionality of Marriage Amendment, let alone rule against it. Right at the beginning, the Court dismissed the argument that the Marriage Amendment has anything against the Plaintiffs in this case, and expressly said:

    Constitutional provisions that potentially conflict must be harmonized if possible. We have recognized that “the state equal protection clause cannot override more specific provisions in the Alaska Constitution.” The State contends that the Marriage Amendment precludes the couples’ equal protection claims because it permits the State to treat married couples differently from unmarried couples, and because Alaska’s equal protection clause cannot “override” the Marriage Amendment’s “more specific provision.”

    This means that the ONLY way for the Court to strike down the Marriage Amendment is if, in a future case, it is argued that it violates the U.S. Constitution. No such claims were made here.

    Moreover, the Court asserted that "the correct classes for comparison are same-sex couples who wish to marry and opposite-sex couples who wish to marry," who it argues separately are similarly situated, "not married couples and unmarried couples." Therefore, the Marriage Amendment is utterly irrelevant here, for purposes of the couples' equal protection claim.

    In fact, the Court agreed with how the lower court's judge beautifully turned it around. He said that because of the Marriage Amendment, same sex couples cannot marry (or have their marriage recognized) in Alaska, and therefore, any "marital classification facially discriminates based on an individual’s sexual orientation.” He reasoned with regard to this case that because the exemption program expressly refers to “widow,” “widower,” “spouse,” “husband,” and “wife,” it facially discriminates based on sexual orientation.

    In a nutshell, the Court ruled that the tax exemption program was in violation of the equal protection provision of the Alaska Constitution (even under minimum scrutiny). No federal claims have been raised. As for the potential impact of this lawsuit, the only thing I can take away is that any Alaska law that differentiates on the basis of sexual orientation cannot disguise it as a classification between married and unmarried couples using the Marriage Amendment, and then argue that it precludes any equal protection claim. In that sense, it does knock off a lot of teeth from the Marriage Amendment, but doesn't render it toothless either.

    https://www.aclu.org/sites/default/files/assets/a

  • 2. grod  |  May 6, 2014 at 8:22 am

    I note your remark that no federal claim was raised and that classifications required by state law must use the lens of sexual orientation… Given that Alaska is in the 9th circuit, the appeal court's decision in Sevcik v Snadoval would apply. Then, Ragavendran, the remaining teeth of the Amendment "will be knocked off." It's time that Sevcik to be heard!

  • 3. StraightDave  |  May 6, 2014 at 9:32 am

    Wouldn't SmithKline already take care of that, applying heightened scrutiny.?

  • 4. StraightDave  |  May 6, 2014 at 9:41 am

    BTW, while I do love the expansive impact of the liberal-leaning 9th Circuit, from AK to AZ and from MT to HI, it does seem to have sprawled out of control. Maybe that's why it's notoriously slow…. just too big.
    I think it's seriously time to break it up. Such things have been done before, I think with the 5th in the south.
    I see a compact 9th as: AZ, CA, HI, NV
    and a new 12th as: OR, WA, ID, MT, AK
    What are the criteria from a breakup? Do the courts determine this or is it politically influenced by Congress?

  • 5. Zack12  |  May 6, 2014 at 10:02 am

    They've tried doing it before and have gotten no where.
    Congress would have to do it which means it won't happen.

  • 6. Randolph Finder  |  May 6, 2014 at 12:18 pm

    And the split off of the 11th in the Southeast was major political football for many years… Part of the problem is that even if you had a Circuit *just* containing California, it still would have a higher case load than some of the existing circuits.

  • 7. Bruno71  |  May 6, 2014 at 5:23 pm

    I get a distinct impression that the 9th is stalling until other circuits move ahead to SCOTUS. Almost as if they feel they have a higher chance of being reversed at SCOTUS than a different circuit.

  • 8. Ragavendran  |  May 6, 2014 at 5:33 pm

    Maybe, but that doesn't explain the scheduling of oral argument in April (which conflicted with the Utah hearing that Monte Stewart wanted to attend and that was probably why it was quickly removed). I am not familiar with panel assignment rules, so I may be wrong, but I think what might have happened is that the case, which is supposedly on an expedited schedule has already been assigned to a randomly chosen merits panel, which, after seeing that a sua sponte en banc call was raised in SmithKline, instructed the clerk to not schedule oral argument until SmithKline has been settled. (I hate to think it, but it's possible one of the judges in this panel might have issued the sua sponte en banc call in SmithKline.) It's almost time now. 21 days since simultaneous briefing is May 8, after which a vote will be taken. We'll know soon if SmithKline will be reopened.

  • 9. Stefan  |  May 6, 2014 at 7:40 pm

    And all judges have 2 weeks to cast their votes correct?

  • 10. Ragavendran  |  May 6, 2014 at 8:34 pm

    Yeah, that's a drag. Hopefully all judges will vote in a couple of days. Why would they need 14 days?

  • 11. Mike in Baltimore  |  May 6, 2014 at 9:28 pm

    That is a real mystery.

    California was admitted to the union in September 1850, but the 9th Circuit Court of Appeals wasn't set up until 1891, with two judges (gradually expanded to the current 28), but without Hawaii, Alaska, Arizona, Guam or Northern Mariana Islands until later (in some cases, much later).

    By 1891, the Pony Express (which carried mail to/from the East and West Coasts in four days or less) had been supplanted by railroads – RRs were faster than the Pony Express. The telegraph was going on 60 years old since American invention and beginning of use. The telephone was starting to get wide acceptance.

    More than 100 years later, the 9th is still using pre-US Civil War rules?

    I think it's time for the 9th to update the court's rules.

  • 12. StraightDave  |  May 6, 2014 at 6:19 pm

    @Bruno71
    That can't be their reason because Sevcik will never reach SCOTUS. The NV Gov and AG have already thrown in the towel, based on SmithKline. The proponents don't have standing to appeal a ruling in favor of SSM.

    The only (unlikely) ways for this to get to SCOTUS are:
    1) Sevcik loses the appeal at the 9th and appeals to SCOTUS
    2) Sevcik wins, SmithKline gets overruled en banc, thus wiping out the heightened scrutiny standard, which emboldens NV to have a change of heart and decide to appeal.

    Long odds, there.

  • 13. D.Henderson-Rinehart  |  May 5, 2014 at 11:22 am

    Here are tweets from @KathyGriesmyer from the courtroom:

    ID reason for ban on same-sex marriage: protect traditional values, use limited resources for hetero-marriage, & prevent religious conflict

    Dept. AG: moving decision process from people to Federal Court is un-democratic.

    Dept AG: courts have misread Windsor decision & does not overrule Baker decision. Judge questions validity of AG argument

    Atty for Gov. Otter: question before Court is whether ID must follow Windsor definition if marriage.

    Nice line from Atty for Gov. Otter: there is not a fundamental right to same-sex marriage. Ay Dios [https://abs.twimg.com/emoji/v1/72×72/1f633.png]

    State keeps trying to justify marriage btw man/woman needed to protect children & provide safe homes. Using "social science" to back claim.

    Atty for plaintiffs using 14th Amendment right to due process and equal protection

    Atty for plaintiffs argue marriage is fundamental right, government should have no decision to decide who one carry marry, individual right

    can** [[correcting "carry" above]]

    Atty for plaintiffs: 25% of ID children born out of wedlock. State gives special preferences to hetero-couples through fiscal benefits

    State CAN'T decide suitability of parents to have children. Counters their argument same-sex couples raise less-adjusted children

    I wonder if the attorneys for ID are actually hearing what's coming out of their mouth. These are the most antiquated arguments I've heard.

    Judge asks ID atty why we don't ask couples to prove their ability to procreate if that's State's argument against same-sex couples.

    Oral arguments done for the day. Stay tuned for a decision. Fingers crossed equal protection and love win over hate and discrimination.

  • 14. Ragavendran  |  May 5, 2014 at 12:49 pm

    Thank you. This article says that the judge took the arguments under advisement, and said she’ll rule “in the relatively near future,” adding, “It will be soon.”

  • 15. Steve  |  May 5, 2014 at 1:02 pm

    Just the usual, insane bullshit

  • 16. Christian  |  May 5, 2014 at 11:35 am

    I have to agree with you, the Alaska case is pretty underwhelming when put under close inspection.

    Further, is it then possible to nullify people's entire existence under this ruling in the future through future amendments? So if there's an anti-Semitic panic couldn't they now just say "For purpose of this section, indiviuals of Jewish or Semitic descent shall not be priveldged to the rights and immunities of this Constitution" and if, let's suppose here, the federal courts declined review then that would be it?

    So in Alaska (and after "Straus v. Horton", California) civil and human rights are dependent on the good will of a simple majority as of this ruling? That's disconcerting to say the least

    Unless I misread the opinion?

  • 17. Ragavendran  |  May 5, 2014 at 12:04 pm

    It is unlikely that such rash amendments would survive federal scrutiny. But yeah, I guess that's how constitutional amendments work in Alaska (and perhaps federally as well). I am not familiar with what authority Courts have to resolve intra-Constitutional conflicts (state or federal) in general.

    On another note, this case is direct positive precedent for the State Constitutional claims for the Harris case that will be argued at the Alaska Supreme Court on May 13. I wonder if the Court will address the federal claims, since the Plaintiff will get her requested relief (survivor benefit) without having to reach those questions.

  • 18. Ragavendran  |  May 5, 2014 at 12:08 pm

    And my mysterious down-voting adversary strikes again! I've noticed that only my comments get down-voted, regardless of their content. I'm stoked to have a stalker – didn't realize I was that important here 😉

  • 19. Christian  |  May 5, 2014 at 1:44 pm

    Well as for Federal Scrutiny let's recall 'Bowers' and 'Plessy' as no court is totally immune to societal prejudice.

    As for the mysterious down voting, in the past I have accidently clicked the 'vote down' button when I mean to 'vote up' because I get fat-fingered with my touch screen, perhaps that's what sometimes happens to you?

  • 20. Ragavendran  |  May 5, 2014 at 2:19 pm

    Naah. Thanks, I've done that myself – accidental downvoting from my phone. But I've been stalking my mystery stalker. It systematically happens within a few minutes of my posting any comment on here. And during that time period, everyone else's points don't change. So I don't think it's accidental. It's targeted and deliberate. It used to get me down at first, but now I'm feeling rather important and privileged that I seem to have a dedicated stalker all to myself 🙂

  • 21. Warren  |  May 5, 2014 at 2:02 pm

    Judge promises ruling soon on Idaho gay marriage

    BOISE, Idaho (AP) — A federal magistrate says she will decide soon if Idaho's ban on same-sex marriage violates the equal protection guarantees of the U.S. Constitution.

    U.S. Magistrate Judge Candy W. Dale told attorneys for four couples Monday that the emotional case raised lots of questions, and that she would get a ruling out in the "relatively near future." She declined to give a specific date, and it wasn't clear if her decision would come before other cases pending across the nation.
    http://news.yahoo.com/judge-promises-ruling-soon-

  • 22. Pat  |  May 5, 2014 at 2:20 pm

    Wasn't today a "hearing on the plaintiffs' motion to skip trial"?
    Does that mean we are first going to get a ruling on this motion (the judge telling us whether yes or no we go for trial)? Or does the article actually mention that the judge indeed did grant the motion to skip trial and will now proceed directly to issue a decision without further steps needed?

  • 23. Ragavendran  |  May 5, 2014 at 2:29 pm

    Today's hearing was on a summary judgment motion (at least one – I'm not sure if the defendants filed a cross motion for summary judgment or not). The Court could still deny the motion(s) and decide to hold a trial. Or, as it seems more likely, the Court could grant the motion(s) and issue a summary judgment (either against us, or, as it seems more likely, for us). I wonder if SmithKline was mentioned at all because that decision leaves little, if any, wiggle room for an adverse ruling.

  • 24. Pat  |  May 5, 2014 at 2:36 pm

    OK, so if the judge grants the motion, is it likely that she issues that ruling (on the motion) at the same time as she issues the ruling on the merits?
    Or shall we expect a two-step decision? (i.e. first telling us that motion is granted to skip trial, and after a few weeks ruling on the case itself)

  • 25. Ragavendran  |  May 5, 2014 at 2:40 pm

    I guess, in theory, it can happen in two steps, but I've never heard of that happening (my knowledge is very very limited). Sometimes the judge might even hand down a partial or full decision orally from the bench. I'm not sure if today the judge said anything about granting the summary judgment motion.

  • 26. Pat  |  May 5, 2014 at 2:41 pm

    OK cool!

  • 27. Warren  |  May 5, 2014 at 3:11 pm

    Since the 9th Circuit is voting on the hear SmithKline en banc, is it the ruling in effect at this time?

  • 28. Ragavendran  |  May 5, 2014 at 3:33 pm

    Yes, it is. Despite a mandate (I still giggle when I listen to this word) not having been issued, according to oral argument in the Oregon case, "It is the law in the Ninth Circuit that the precedential effect of a Ninth Circuit opinion vests when the opinion and judgment are issued, and that has happened in the SmithKline case."

  • 29. Kevin  |  May 5, 2014 at 5:17 pm

    The judge will only require a trial if she finds there are triable issues of material fact that need to be heard by a jury. I don't know about the procedural posture of this particular case, but from these descriptions it sounds like the parties have both stipulated there are no such issues and want to proceed on briefed arguments alone.

  • 30. Christian  |  May 5, 2014 at 2:30 pm

    Oh and here's a little treat I found on the interwebs, debate on SB 1306. Begins around 17:20
    http://calchannel.granicus.com/MediaPlayer.php?vi

    Passed 25-10 (2 republicans voting aye)

  • 31. Big Rick  |  May 5, 2014 at 3:31 pm

    From whence comes this bizarre notion of genderless marriage that the States and the anti-SSM clowns keep spouting?

    Thomas Perry, the attorney for Governor Otter, was quoted in an ABC news article I was just reading here http://abcnews.go.com/Health/wireStory/judge-prom… as saying "We believe that there are significant risks imposed in redefining marriage in genderless terms."

    I'm male and my husband is male. We are married. If genderless means "lacking qualities typically associated with either sex", as Merriam Webster says, then in no sense are we or our marriage genderless.

    What are they trying to imply by using the term "genderless" to refer to same-sex marriage?

  • 32. Ragavendran  |  May 5, 2014 at 3:38 pm

    Oh I think it is semantics… instead of defining marriage as between one man and one woman (the gendered definition), they are afraid (for no legitimate reason, as we all know) to define it as between two persons. Since the latter definition drops the gender of the spouses, it is being labeled "genderless". Pure semantics. It's not marriage that is genderless (that's an insult as pointed out in many briefs), it's its definition. Same sex marriages are no more genderless than opposite sex marriages.

  • 33. Big Rick  |  May 5, 2014 at 3:59 pm

    Ah, that clarifies it. Thanks. Our New Mexico marriage license application and our marriage certificate identify each party to the marriage simply as "Spouse". That makes perfectly good sense, as it reduces paperwork and eliminates irrelevant detail. But every time I see the opponents of marriage equality use the term, it conveys a more pejorative connotation. I can't help but think that it is intentional on their part.

  • 34. Ragavendran  |  May 5, 2014 at 4:10 pm

    What SeattleRobin says below too. Going by their own words, if one is very particular in being accurate, "redefining marriage in gender less terms" would render the whole institution of marriage genderless, and we'd all be genderless marriages – gay and straight 🙂

  • 35. Dr. Z  |  May 5, 2014 at 8:52 pm

    Well, why just two genders? Many cultures recognize three or more.

  • 36. Rose  |  May 5, 2014 at 11:09 pm

    Be careful……there is a rather anti-gay marriage opponent who is trying to intervene in the Florida case by the name of Chris Sevier…….he wants to marry his computer because he is "IN LOVE" with the porn being delivered from it and it has conditioned him to response in a certain way…….seems Mr. Sevier has done this before to Apple and another Marriage Equality case in Ohio, I think!!!

    He claims to have been a Judge Advocate and a Combat Veteran!!!

  • 37. Richard Weatherwax  |  May 6, 2014 at 12:39 am

    The 14th Amendment specifically says "person" or "persons". A computer is not a "person", therefore it does not fall under the protection of the 14th Amendment.

  • 38. Chuck from PA  |  May 6, 2014 at 12:08 pm

    Scary, under recent SCOTUS decisions, corporations are persons. Will we soon be forced to recognize marriages between a man and EXXON?

  • 39. Steve  |  May 6, 2014 at 12:19 pm

    I'll believe that corporations are people when they execute one.

  • 40. StraightDave  |  May 6, 2014 at 9:16 am

    Didn't he get "laughed out of court" in OH? … or, more precisely, I think his motion was denied by an impressively-straight-faced judge who somehow managed to avoid even acknowledging the computer or lack of other human in the picture.

  • 41. sfbob  |  May 6, 2014 at 9:34 am

    Yup. Same guy.

  • 42. KarlS  |  May 6, 2014 at 10:24 am

    He's probably desperate for a good hard drive…

  • 43. Ragavendran  |  May 6, 2014 at 10:31 am

    Here is the order denying intervention in the Florida case. He also tried to intervene in Kentucky's Love case before. And he got the guts to file a motion to intervene in Utah's Kitchen at the Tenth Circuit just recently. Judges Kelly, Holmes and Lucero promptly dismissed the motion in a one-line order.

  • 44. Randolph Finder  |  May 6, 2014 at 12:22 pm

    I wonder what Judges think about motions like this? Irritation or "here's a change".BTW, the orders *still* haven't gotten as nasty as some of the ones that Orly Taitz (Queen of the Birthers) has gotten.

  • 45. TKinSC  |  May 7, 2014 at 10:49 pm

    Who cares about this dummy Rose? Tired of hearing about him. Certainly isn't anything to be careful about. He's an SNL skit.

  • 46. TKinSC  |  May 7, 2014 at 10:58 pm

    While he might have a couple screws loose, I think the arguments he makes are, in the main, rational. If marriage is to be redefined to match a person's proclivities, who are we to say that a man should not be allowed to marry his computer? The computer can't consent, to be sure, but neither does it have the right to withhold consent. In other words, if Mr. Sevier wants his social security checks to be mailed to his computer after he dies, why shouldn't he be allowed to set that up? It's not like any marriage between two humans would be harmed in any way.

  • 47. SeattleRobin  |  May 7, 2014 at 11:18 pm

    Assuming you're at least somewhat serious in playing devil's advocate, remaining silent, or not answering "no" isn't enough. If the requirement for active consent was done away with a zillion cans of worms would be opened, and not just in regards to marriage.

    Also marriage is not being redefined to accommodate personal proclivities. Marriage will remain exactly as it has always been. Only the gender restrictions are being removed.

    If people want to argue other aspects of marriage, such as the number of people involved, consent, and so on, that's fine. But those are separate issues and should not be tacked on to this issue.

  • 48. TKinSC  |  May 7, 2014 at 11:23 pm

    I agree with you.

  • 49. TKinSC  |  May 7, 2014 at 11:21 pm

    Rose- I'm a closet-case who spouts mental pretzel-knots and overthinks simple things. Convoluted. I'm working on the closet thing first as I see it as the easier bit to tackle.

    I like beef stew but the beef needs to fall apart in my mouth.

  • 50. JayJonson  |  May 6, 2014 at 5:56 am

    It is not just semantics. It is an attempt to accuse gay people of trying to affect marriage (especially straight marriage) by erasing highly differentiated gender roles. The implication is that the goal of marriage equality is to destroy gender differentiation, thereby robbing children even in opposite-sex marriage of fathers and mothers. The notion is, of course, batshit, but it is intended to suggest that allowing gay people to marry will result in a vastly different institution. (It also implies that gay people are eunuchs–the opposite of the sex-crazed perverts they generally caricature us as.) As a strategy this idea was likely manufactured at Brigham Young University Law School, with, no doubt, input from Robert George et al. However, I think its orgins come from Judge Walker's decision in the Prop 8 trial. He pointed out that the rigid roles of male and female were no longer codified in law. I think the anti-gay people twisted that observation into the idea that he was imposing "genderless" marriage on California.

  • 51. sfbob  |  May 6, 2014 at 7:55 am

    If that's their tack then they are fooling themselves. If one wants to go that route and claim that marriage equality somehow threatens gender-defined roles in marriage, that ship sailed several decades ago and had nothing to do with us. Judge Walker was simply pointing out what should have been obvious to everyone as an already accomplished fact. For all legal purposes women and men are equal within heterosexual marriages and have been since the doctrine of coverture was abandoned back in the 1970's.

  • 52. ebohlman  |  May 6, 2014 at 8:14 am

    The problem here is that the authoritarian personality simply can't cope with the concept of a group of two or more people where nobody's designated as the boss.

  • 53. Rose  |  May 6, 2014 at 8:10 am

    I TOTALLY agree with ya……..and yet, they DON'T seem to care if a man is a stay at home dad and the wife is the bread-winner per say………I often wonder if these anti-gay folks EVER truly think about what their actually complaining about?

  • 54. SeattleRobin  |  May 5, 2014 at 3:56 pm

    The term "genderless marriage" is used by most of the anti-equality attorneys in these cases. It's just a way to use language to underline their point that same-sex marriage is something new and spooky, rather than just plain old marriage. As you point out, it's ridiculous because whether you marry a man or a woman, you still have your gender. I don't remember which case, but one of the plaintiff's attorneys made that rather pointed argument in a reply brief.

    edit:Guess I should refresh the page before replying, Ragavendran beat me to it.

  • 55. montezuma58  |  May 5, 2014 at 6:52 pm

    The truth is marriage has been genderless for a long time. Probably a more accurate term would be gender neutral. Whatever label one places on it it has been a legal reality for decades. The courts have long held that stereotypical gender roles in marriage have no legal weight. When looked at individually things such as intestacy, power of attorney, tax rules, or any other legal construct involved in marriage have no dependency on the gender of the two people involved. Other than getting through the door gender plays zero role in marriage from a legal or civil view.

    The best they can muster is that somehow having two people with different junk between their legs will automatically result in better overall parenting. They'll throw around vague terms like "diversity in parenting styles" or "uniqueness of opposite gendered couples". Two problems with their position. First it's impossible to make their argument while avoiding stereotypical gender roles. Second, even in the case of opposite sex couples there's no attempt to determine if these ethereal diversity in parenting styles exist.

  • 56. Dr. Z  |  May 5, 2014 at 8:50 pm

    Worthy of a SCOTUS brief.

  • 57. montezuma58  |  May 6, 2014 at 3:40 am

    OK, I'll work on it. What's Latin for "different junk between their legs"?

    It's the same pattern every time opponents bring up the subject. They'll exalt opposite gendered couples. They'll speak at great length as to the importance and urgency of having opposite gendered couples together (for the sake of the children). But when it comes backing up their position they offer nothing but vacuous praise for their preferred structure for marriage or other empty rhetoric such as "it's common sense" or "intuition".

    They used to toss in some social "science" to try to back up their position. Since Regnerus and his klan were smacked down in court they've shied away from that tact.

    They'll usually also throw in some stuff about the message the state is trying to send about marriage. It's as if the laws are part of some sort of state PR campaign like the one's for getting people to quit smoking or encouraging people to recycle. You know, now that I think about it, it wouldn't surprise me if the state of Alabama or Mississippi started buying billboards on the interstate in an attempt to persuade people to avoid "genderless" marriages.

  • 58. Lymis  |  May 6, 2014 at 5:06 am

    "What's Latin for "different junk between their legs"? "

    In this context, that would be "non sequitur."

  • 59. F Young  |  May 6, 2014 at 9:36 am

    "What's Latin for "different junk between their legs"? "

    Google says: "alia partium eorum crura"

  • 60. Lymis  |  May 6, 2014 at 5:06 am

    The point is that "gender-neutral" is entirely different from "genderless."

    The claim is that allowing same-sex couples to marry strips the gender away from the participants in an opposite sex marriage, and they have a right to be seen as a man and as a woman, which would be taken from them if gay couples can marry.

    That's as absurd as saying that the fact that I'm free to paint my living room a different color than my neighbors paint theirs makes all our homes "colorless."

  • 61. Matt  |  May 5, 2014 at 8:18 pm

    The name of Idaho's governor is Butch Otter XD

  • 62. Fluffyskunk  |  May 5, 2014 at 8:58 pm

    Has been since 2007. Every time I see that name I have to restrain myself from posting something from furaffinity.net…

  • 63. Randolph Finder  |  May 6, 2014 at 7:57 am

    Well, his given name is Clement Leroy Otter. I'd go by Butch as well if those where my choices.

  • 64. Chuck from PA  |  May 6, 2014 at 12:15 pm

    Doesn't a Butch Otter mean something special in the realm of Bears? Something similar to a cute little dude who likes to be the top in his relationships.

    I can't believe I have written 2 snarky posts today. I never do that. Please forgive me if you hate snark.

  • 65. Margo Schulter  |  May 6, 2014 at 2:18 am

    Rose, I’ve read Chris Sevier’s attempted intervention, and it seems one of the best illustrations I’ve seen of a frivolous filing. Evidently a lot of things described in his catalogue of curious marriage — between humans and nonhuman animals, or people and various inanimate objects — actually happened, although one item seems to be an urban legend. That claims that California law, around 1850, had a prophetic clause that if same-sex marriage later became legal, then human-animal marriage would be equally legal “in every eye of the law.” Evidently it was a fake news item of the Onion variety that Sevier took as a real historical source.

  • 66. Margo Schulter  |  May 6, 2014 at 2:26 am

    I agree, montezuma58, that it’s impossible to make these arguments against gender-neutral (or “genderless”) marriage without drawing on “stereotypical gender roles.” And that’s one quick route to overturning these marriage bans: as gender discrimination subject to intermediate scrutiny (as Judge Holmes of the Tenth Circuit suggested in oral argument), where an “exceedingly persuasive” justification would be required. Justice Ginsburg pointed to the sex discrimination cases you’re discussing as one reason why Baker v. Nelson has lost any precedential value. I wonder if a Supreme Court marriage equity decision might cite her opinion in United States v. Virginia (1996).

  • 67. Ragavendran  |  May 6, 2014 at 1:33 pm

    What a load of BS! Who do they think is going to fall for this:
    http://www.scribd.com/doc/222429130/Letter-Citing
    They are so desperate they want to connect any Kennedy-authored conservative SCOTUS ruling to a gay marriage case.

  • 68. Eric  |  May 6, 2014 at 2:15 pm

    No one, other than their client, is going to buy their claims. Especially, since the anti-gay readily admit that the point of marriage is to COERCE couples into marriage. The SCOTUS ruling yesterday explicitly said that government sponsored religious coercion violates the First Amendment. If anything SCOTUS opened the door to more First Amendment claims against the denial of civil marriage for religious reasons.

  • 69. sfbob  |  May 6, 2014 at 2:34 pm

    Just makes my head hurt. Even were we to grant that the statement regarding "the precise boundaries of the Establishment Clause" somehow supports a religious definition of civil marriage, it doesn't answer the question as to WHOSE religious definition should be established as the official one. As Eric has noted below, this would simply provide additional basis for the First Amendment claim that already is being used in the marriage equality suit in North Carolina.

  • 70. Ragavendran  |  May 6, 2014 at 2:41 pm

    Well, the NC lawsuit might well be a misunderstanding:
    http://www.slate.com/articles/news_and_politics/j
    And if you ask Roy Moore, he'll say that the First Amendment only protects Christians!
    http://www.huffingtonpost.com/2014/05/05/alabama-

    Joke(s) aside, I agree with you and Eric above.

  • 71. sfbob  |  May 6, 2014 at 3:29 pm

    I actually agree with the Slate article. NC law doesn't make it illegal for clergy to perform weddings without a license–as long as they don't claim to make those weddings into legal marriages. I don't think that is the claim being made in the suit, but even my personal opinion is that the First Amendment argument is relatively week compared to the equal protection and due process arguments. But if the Supreme Court insists on inserting religion back into the civil sphere, they shouldn't be surprised if they see just such arguments being made in the future.

  • 72. Fr. Bill  |  May 6, 2014 at 4:11 pm

    I agree that the due process/equal protection arguments are far more persuasive than the First Amendment argument. What this case does is highlight that civil marriage and religious marriage are two distinct things and legally it is only civil marriage that matters. (This is fuzzy in the US since we inherited English common law which was based on an Established State Church having control over marriage). The second thing this case will highlight is that Christian churches and other religious faiths differ on the issue of legal marriage equality. This serves to point out that some churches are seeking to use the State to impose their own particular sectarian beliefs on others (including other religious bodies) who do not share to their religious views.

  • 73. Retired_Lawyer  |  May 6, 2014 at 3:09 pm

    Ah yes, another contribution by Monte N. Stewart, Esquire, the most distinguished conservative constitutional scholar in all of Boise. Ignore it. The Judges will.

  • 74. SeattleRobin  |  May 6, 2014 at 9:48 pm

    The letter is a classic case of grasping at straws. The attorney contradicts himself in his choice of quotation and doesn't even seem to realize it. In the block quotation on the first page the court first talks about established tradition, but then concludes with, "and has withstood the critical scrutiny of time and political change."

    Opposite-sex only marriage is flunking that scrutiny as we speak, and has been in the process of doing so for the last two decades. With 17 states and DC now allowing same-sex marriage it's impossible to argue differently. (I'm setting the starting of the time frame from the original Hawaii case and the resulting panic that kicked off DOMA etc.)

  • 75. Scott  |  May 6, 2014 at 2:51 pm

    How self loa(LOW)thing can one get? … “Well, this is awkward: Steve Wiles, a 34-year-old self-described "conservative Christian," is campaigning for the North Carolina state senate as an anti-gay Republican. Wiles is so anti-gay, in fact, that in 2012 he worked to pass the state's marriage discrimination amendment. He's also a former drag queen named Mona Sinclair who performed at a nightclub in Winston-Salem. Read more at http://www.bilerico.com/2014/05/anti-gay_north_ca

  • 76. Tim  |  May 6, 2014 at 3:19 pm

    For the legal experts, is there a way a Supreme Court justice could vote against Windsor but then support one of the upcoming full marriage equality lawsuits? If so, what would their legal reasoning be?

    I'm not asking IF they would. I'm asking what reasoning could they use if they chose to.

  • 77. JayJonson  |  May 6, 2014 at 4:05 pm

    I am no expert, but I think it conceivable that a Justice like Alito or Roberts, who thought that the Windsor case should have been dismissed on a question of standing (I can't understand how BLAG, which represented only one House of Congress, had standing to defend a law that was passed by two Houses of Congress, one of which did not want it defended; or how the Justice Department had standing to appeal a decision that they had won at the Circuit level) or who thought the Windsor case was decided too broadly given the set of facts, might be open to a different decision in a different set of facts. Not likely, but conceivable.

  • 78. Ragavendran  |  May 6, 2014 at 4:20 pm

    And I can't see how Scalia is going to contradict his own Windsor dissent when he votes against marriage equality. It'll be interesting to see what his dissent in one of these cases will look like! I guess the Supreme Court is special in that dissenting Justices are not bound by the majority opinion in future cases? Otherwise, they won't be able to reverse themselves, correct?

  • 79. Guest  |  May 6, 2014 at 5:06 pm

    Dissenting justices are absolutely bound by majority opinions if an analogous issue reappears before the court. That is, of course, unless they can gather four additional votes for their point of view.

  • 80. Ragavendran  |  May 6, 2014 at 5:09 pm

    Ah, I see. Thanks for the clarification. So, in a marriage equality case where we win, and Scalia dissents, he is bound by Windsor, so he has to come up with an entirely new rationale to dissent, correct? Because by his own logic in his Windsor dissent, there is no way State marriage bans can stand scrutiny after Windsor.

  • 81. Guest  |  May 6, 2014 at 5:19 pm

    No. Windsor presents a different issue from state constitutional ban cases. Further, Scalia's dissent in Windsor is not law. Dissents do not bind anyone and were not even written for much of Anglo American jurisprudence. He is bound by Windsor's holding alone. He can absolutely write another dissenting opinion when the constitutional rights of gays and lesbians are vindicated. This opinion can include identical, similar, or divergent rationales than his Windsor dissent. Neither he, nor any of the other justices who joined his opinion, are compelled to agree with marriage equality plaintiffs.

  • 82. Ragavendran  |  May 6, 2014 at 5:27 pm

    Right, but if Scalia doesn't come up with a different rationale, wouldn't he have to contradict his own Windsor dissent where he claimed the majority's opinion means that State bans would have to go? (I agree his dissent is not law and it doesn't bind anyone, but he's gonna look stupid if he contradicts himself, right?) Basically, if the majority opinion in Windsor binds Scalia, and he doesn't want to look stupid by contradicting his own dissent in that case, then what rationale could he adopt to vote against marriage equality? That's my confusion, I guess.

  • 83. Guest  |  May 6, 2014 at 5:53 pm

    That's easy. He will say the Fourteenth Amendment was adopted in 1868 to provide for equal protection of the laws for newly freed slaves. The amendment was never intended to be used as a tool for an "enlightened" five or six justices to bludgeon a democratically enacted law of profound social consequence out of existence. The court is overstepping its bounds and arrogating legislative power, etc. etc. etc.

  • 84. TKinSC  |  May 6, 2014 at 10:29 pm

    Sounds right to me.

  • 85. TKinSC  |  May 7, 2014 at 10:07 pm

    Guest: I'm a closet-case. What would help me with that?

  • 86. TKinSC  |  May 6, 2014 at 10:31 pm

    Nothing binds the Supreme Court (and hence any of the Justices thereon). Thomas in particular is fond of continuing a dissenting argument through a line of cases.

  • 87. Ragavendran  |  May 6, 2014 at 10:37 pm

    Hmm… That's what I thought, but Guest says something to the contrary above. I wonder what the facts are. Any citations or articles?

  • 88. TKinSC  |  May 7, 2014 at 10:08 pm

    Ragavendran: I'm a closet-case, but I don't drink.

  • 89. bayareajohn  |  May 7, 2014 at 12:02 am

    Let me take a moment to thank TK for actual discussion.

  • 90. TKinSC  |  May 7, 2014 at 9:45 pm

    You're welcome. 🙂

  • 91. TKinSC  |  May 7, 2014 at 10:10 pm

    and I'm a closet-case. I know some of you knew that but I wasn't sure if you did bayareajohn.

  • 92. Kevin  |  May 7, 2014 at 2:24 pm

    The rule of stare decisis binds the Supreme Court up until and unless " the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification, e. g., Burnet, supra, at 412 (Brandeis, J., dissenting)." Planned Parenthood v. Casey, 505 U.S. 833, 854-855 (1992).

  • 93. StraightDave  |  May 6, 2014 at 5:59 pm

    I didn't think SCOTUS was strictly bound by anything and were free to contradict themselves, see Lawrence, Brown and others. They do have a strong preference for not changing their minds too often, lest the law becomes (or appears) too unstable. But they are entitled, and expected, to correct their own mistakes.

    They are also entitled to double down on being jackasses, if that's their pleasure.

  • 94. TKinSC  |  May 6, 2014 at 10:11 pm

    Read Scalia's dissent more closely. He *agrees* with Roberts that the analysis of the Windsor decision does not extend to state bans on gay "marriage", but *predicts* that the majority will somehow convolute Windsor to strike down those bans.

  • 95. Eric  |  May 7, 2014 at 1:37 pm

    The matter of state bans was not before the court in Windsor. Are you claiming that a strict constructionist like Scalia was issuing an opinion on a matter not before the court?

  • 96. StraightDave  |  May 7, 2014 at 3:32 pm

    Sure, why not? Even Roberts took it upon himself to interpret what the majority meant, when he didn't even agree with them. It was certainly not his place to do so, and presume to elaborate "on their behalf". Just wait til the real big-bang ruling comes down in the next year or 2 at most. Then we'll see some real bitching and moaning about how the court has lost its way. They will not let it go gracefully, I can assure you,

  • 97. TKinSC  |  May 7, 2014 at 8:21 pm

    I thought it strange for both Roberts and Scalia to comment on what the majority meant. It should generally be left to the majority to say what their decision means.

    That said, I think Roberts was mostly trying to mitigate the likely effect of Scalia's rant, namely that lower courts would take it as a signal to strike down state bans. (Roberts was obviously unsuccessful.)

  • 98. Dann  |  May 7, 2014 at 8:49 pm

    Buzz off TKinSC.

  • 99. TKinSC  |  May 7, 2014 at 10:11 pm

    Dann- see above. I'm a closet-case.

  • 100. TKinSC  |  May 7, 2014 at 10:11 pm

    I'm a closet-case. Work with me guy.

  • 101. TKinSC  |  May 7, 2014 at 8:18 pm

    No. He was issuing an opinion on how he felt the majority will rule when the matter does come before them. But before that, he noted that what the majority actually said does not compel that conclusion. (On that, he and Roberts agreed, and the majority explicitly said so in its penultimate sentence.)

  • 102. Dann  |  May 7, 2014 at 8:49 pm

    Buzz off TKinSC! lol

  • 103. TKinSC  |  May 7, 2014 at 10:12 pm

    You can LOL all you want, but that doesn't change the fact that I'm a closet-case.

  • 104. Retired_Lawyer  |  May 6, 2014 at 4:23 pm

    Yes, a Justice who dissented from the Court's ruling in Windsor could in theory support plaintiffs in a case brought by a couple lawfully married in one State and whose marriage has been refused recognition by another State. The hypothetical case would apply the 14th Amendment's equal protection guarantee: a State that recognizes some marriages from another State would have to recognize all of them on an equal basis. The section of DOMA that purports to excuse the States from recognition of same-sex marriages would be struck as repugnant to Article IV's requirement that States give full faith and credit to the official acts of other States. These issues would involve legal theories not foreclosed by the majority opinion in Windsor.

  • 105. Ragavendran  |  May 6, 2014 at 4:56 pm

    Even if that Section of DOMA was not being challenged? If the case only challenged a State's recognition portion of the ban and not DOMA, can DOMA still be struck down? The reason I ask is because this exact same excuse was used by Utah's attorney Schaerr during the last two minutes of oral argument. When Judge Lucero drew the comparison between Utah not recognizing a legal Iowa same sex marriage and the Dred Scott case and said they were identical, Schaerr responded:

    Here’s why it’s different, your Honor. Congress expressly dealt with THAT very problem in Section 2 of DOMA, which governs the effect of a same sex marriage in one State in other States. And Congress, exercising it’s authority under the Full Faith and Credit Clause, said, that that marriage in Iowa does not have to be recognized in Utah. And that provision of DOMA was not challenged in this case. If that provision had been challenged, then this could be a different case as to the people who were married in Iowa, but it wasn’t challenged.

    Do these words of Schaerr have any merit insofar as he doesn't contradict Lucero that there is a problem with nonrecognition but he is shifting the blame for that to DOMA? Does the Tenth Circuit have jurisdiction to strike down DOMA when it hasn't been challenged?

    As far as I know, Section 2 of DOMA might never be properly challenged. Take, for instance, the only case that challenged it, namely Oklahoma's Bishop. The district court said that the Plaintiffs lacked standing to challenge Section 2 of DOMA because:

    "Section 2 is an entirely permissive federal law. It does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon non-recognizing states, and does not punish recognizing states. The injury of non-recognition stems exclusively from state law – namely, Part B and title 43, section 3.1 of the Oklahoma Statutes – and not from the challenged federal law."

    And the Bishop Plaintiffs agreed with this part of the decision and did not appeal it to the Tenth Circuit.

  • 106. Eric  |  May 6, 2014 at 6:40 pm

    Bishop has drug on for a very long time, I wouldn't use it as an example of anything, but bad timing.

    Section 2 of DOMA will be challenged as soon as a married couple moves to a state that doesn't recognize their marriage and they are denied a federal benefit that is based on marital status in the state of residence. Or, as soon an ex-spouse moves to non-marriage equality state and tries to get around the divorce decree.

  • 107. Retired_Lawyer  |  May 7, 2014 at 5:18 am

    Ragavendran, the fact that Sec. 2 of DOMA was raised as an issue in the District Court preserves it as an issue on appeal. Of course, plaintiffs were not obliged to raise an issue decided favorably to them (and might not have standing to do so!) The 10th Circuit panel could deal with Sec. 2 if it wants, however. Let me digress a little. Sec. 2 of DOMA conflicts with Article IV of the Constitution, which requires each State to give full faith and credit to the official acts of other States. Congress has the power to prescribe HOW those acts are to be proven (e.g., letters rogatory, certified copy with a raised seal); it does not have the power to grant exemptions. More to the point where marriage equality is concerned: Article IV, like the rest of the pre-existing Constitution was altered by the 14th Amendment, and its provisions regarding equal protection. It is perfectly obvious that a State could be required to recognize a marriage validly contracted even if the same marriage could not have taken place validly in that State. Remember that Edith Windsor and her late wife were validly married in Canada, and that the marriage was valid in the State of New York, even though at that time same-sex marriages were not permitted in New York (international laws recognizes a principle called "comity" that resembles "full faith and credit." If you want to go further back, Richard and Mildred Loving were validly married in the District of Columbia, then moved to Virginia, which would not have allowed them to be married, which gave rise to Loving v. Virginia in 1967. Even today, you will find people claiming that there is an unwritten exemption from the full faith and credit requirement based on local public policy (like Virginia's in 1966). But, and here is that pesky 14th amendment again, there is a whole line of cases holding that discrimination cannot be a valid public policy. There is a real-life aspect to this recognition issue, too. Maryland and the District of Columbia provide for marriage equality. Virginia does not. A single perimeter highway (the "Beltway) runs around the Capital. So, a couple could be married on one stretch of the Beltway, and suddenly find themselves unmarried on another stretch. Likewise, an adopted child could be suddenly orphaned on the same trip. This is not a result any court is likely to endorse.

  • 108. TKinSC  |  May 7, 2014 at 8:57 pm

    Again, putting aside the fact that Article IV is not a method by which one state can impose its law on the other 49, even if it were, it lets Congress determine not only HOW acts are proven, but also the EFFECT of those acts. Congress is within its authority to declare that states do not have to recognize out-of-state "marriages" that violate the very definition of the term.

    And again, the 14th Amendment is no recourse for your ill-disguised ruse to sneak in same-sex "marriage" through the back door. A state's refusal to recognize an out-of-state "marriage" is no more discriminatory than its refusal to allow such marriages to be performed in-state. If the latter is valid, than the former is even more so.

    Unlike Article IV full faith and credit, comity is completely voluntary, and allows states to extend reciprocal recognition to the status of each others' citizens to allow for freer movement between the states. However, like Article IV (and even more so), comity is not a means by which the citizens of one state can override another state's public policy. 33 states (34 if you count California) consider it counter to their public policy to treat ANY same-sex "marriage" — whether done in state or out of state — as a marriage.

    Loving v. Virginia was not a case about recognition of an out-of-state marriage. It was a pure 14th Amendment racial discrimination case. Even the mention of marriage as a fundamental right was noted only insofar as a classification as irrelevant as race could not be used to deny it.

    If same-sex couples "married" north of the Potomac don't want to find themselves legally "unmarried" (by definition, of course, they were never actually married to begin with) or have their children orphaned, then they would do well not to cross the river. Of course, they could avoid all the hassle by finding someone to actually marry. But they choose to engage in pretend "marriages" in states that choose to go along with the farce, and when they cross state lines, they freely accept the consequences of that as well.

  • 109. TKinSC  |  May 7, 2014 at 10:14 pm

    Retired: I'm a "closet-case" with a fondness for air quotes.

  • 110. Tim  |  May 6, 2014 at 9:55 pm

    Thanks Retired _Lawyer. What about prohibitions on marriage within the state a couple resides in (as opposed to recognition of marriages performed in other states)?

  • 111. Retired_Lawyer  |  May 7, 2014 at 4:36 am

    That is the kind of case that I expect will actually be accepted for review by the Supreme Court; and, if that occurs, the likelihood is strong that the Court will divide 5-4 along the same lines as Windsor. Recall, the question originally posed asked for a hypothetical.

  • 112. Tim  |  May 7, 2014 at 6:16 am

    Yes, 5-4 likely. But is there a reason one of the 4 could give to support marriage equality given they opposed Windsor?

  • 113. Retired_Lawyer  |  May 7, 2014 at 8:07 am

    No. The four dissenting Justices are pretty much locked into the positions they took in Windsor. Justice Scalia's opposition to the Court's decision on sec. 3 of DOMA is well known, and becoming better known all the time as District Court Judges, with ill-disguised glee, cite his prediction that Windsor paves the way for overturning all the State prohibitions of same-sex marriages as they do just that, ten for ten at last count. Justice Thomas joined Justice Scalia. Chief Justice Roberts dissented separately, but specifically declared DOMA to be Constitutional, in his view. The purpose of his separate dissent was to invite lower Courts to limit and distinguish away the Windsor holding. Justice Alito dissented separately because he, and he alone, would have accorded standing to BLAG–an instrument of only one House of Congress. Otherwise, his views on DOMA are those of the other three dissenters. Most of his dissent appears to be a sample brief for those seeking to defend State same-sex prohibitions, with a really strange excursion (Alito footnote 7) into an attack on the trial of a wholly separate case, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal. 2010). Perry, of course, was never properly before the Court because the intervenors, the proponents of prop 8, never had standing to appeal or to seek certiorari, One senses that Justice Alito leveled this attack on Judge Vaughan Walker's decision just because he could. To sum up, the only time Maggie Gallagher may have been right about anything, was her conclusion that there are five votes on the Supreme Court for marriage equality in the 50 States.

  • 114. DrHeimlich  |  May 7, 2014 at 9:38 am

    Unless they were to have some kind of "evolution" on the issue of marriage equality in the time between Windsor and the next case, I suppose. Of course, those four RATS on the Supreme Court (Roberts, Alito, Thomas, Scalia) don't seem the type.

  • 115. JayJonson  |  May 7, 2014 at 1:10 pm

    Yes, Roberts, Alito, Thomas, and Scalia have repeatedly demonstrated their animus toward gay people. They are utterly inconsistent in their application of precedent and legal reasoning when it comes to our cases. Their only consistency is in the animus they bear toward us. We know that there are four solid votes against equal rights on the Supreme Court. It is foolish to expect any of these RATS to evolve. But what is essential is to try to make certain that a fifth anti-gay Justice is not appointed. The best way is to make certain that Hillary Clinton (or other Democrat) succeeds President Obama. For all the progress we have made recently, our position re equal rights under the law remains precarious.

  • 116. Guest  |  May 7, 2014 at 1:39 pm

    What did the kingdom of rats do to be grouped together with Christian bigots? Rats are cute, bigots are filthy.

  • 117. Mike in Baltimore  |  May 7, 2014 at 3:21 pm

    SOME people may consider rats to be cute, but most do not, especially the more they know of rat behavior and rats being vectors of several diseases.

    Most people would consider your attribution of bigots being filthy as spot on.

  • 118. Kevin  |  May 7, 2014 at 11:25 am

    If we're counting votes we need to parse the dissent more specifically. Scalia writes in two parts: Part 1 concerning justiciability and Part 2 concerning equal protection. Alito dissents separately in three parts. Part 1 concerning justiciability, Part 2 concerning the due process claim, and Part 3 concerning heightened scrutiny.

    Justice Thomas joined Scalia's dissent in its entirety and Parts 2 and 3 of Alito's dissent.

    Justice Roberts *only* joined Part 1 of Scalia's dissent, concerning standing. The Chief Justice has left himself completely open on questions of due process and equal protection. He very well could join the majority in a favorable same-sex marriage ruling; and since he is Chief Justice, he could choose to author it himself.

  • 119. TKinSC  |  May 7, 2014 at 9:25 pm

    The mere fact that Roberts dissented instead of concurred or remained "neutral" belies that possibility. By dissenting, he implicitly declared that he would have upheld DOMA. It would be completely illogical to uphold DOMA and then strike down state bans.

    (As I mentioned earlier, the converse is not true, and I predict Kennedy at least will switch sides when the issue of state bans comes before the Court.)

  • 120. Background Gal  |  May 7, 2014 at 10:03 pm

    He could evolve. It happens more than it used to.

  • 121. Kevin  |  May 8, 2014 at 7:14 am

    I will take your jurisprudence of 'implicit declaration' under advisement. In the meantime I will continue to view the explicit refusal to join those parts of dissenting opinions that reach the merits as evidence that the forthcoming is a 6-3 equal protection decision. I am heartened that every federal jurist to have considered the question post-Windsor agrees on this issue.

    It must be very difficult for you to witness the dismantling of state sanctioned discrimination, a distress greatly evidenced by your frequent sophomoric comments here. Pitiful.

  • 122. TKinSC  |  May 8, 2014 at 7:33 am

    You're right. I even thought Windsor would lose. I'm not the best at seeing a sinking ship.

  • 123. TKinSC  |  May 7, 2014 at 10:15 pm

    Kevin: you probably read this, but I'm a closet-case.

  • 124. KarlS  |  May 7, 2014 at 12:19 pm

    A happystance (sic) (and grin) (re Maggie) about which we can hopefully be forgiven for hoping she actually is correct…for once. 🙂

  • 125. TKinSC  |  May 7, 2014 at 9:33 pm

    "as District Court Judges, *with ill-disguised glee*, cite his prediction that Windsor paves the way for overturning all the State prohibitions of same-sex marriages as they do just that" (emphasis mine)

    Just wanted to give you props for admitting that all these judges are indeed activist, and ruling based on their personal preferences instead of on the law. That admission takes courage, and I thank you for it.

  • 126. StraightDave  |  May 7, 2014 at 9:47 pm

    I think you misread what's happening here. The district judges are just doing the correct thing and are happy that Scalia is agreeing with them for a change. That doesn't happen very often. It certainly is ironic that Scalia is essentially endorsing their views of the law, even though he really hates it. They realize he's just trying to be snarky but they're taking him at face value and enjoying the result. You don't have to be an "activist" to do the right thing and enjoy it at the same time.

  • 127. TKinSC  |  May 7, 2014 at 10:03 pm

    StraightDave – I'm a closet-case. It's something I struggle. with.

  • 128. TKinSC  |  May 7, 2014 at 9:07 pm

    Actually, the likelihood of that is quite weak. While it is a certainty that all 4 justices who voted to uphold DOMA are logically constrained to uphold state bans on pretend "marriages", the converse is not true. All it takes is one justice from the majority to recognize a state's right to preserve for itself, if it so chooses, the true definition of marriage. My guess is Kennedy *at least* will recognize that right. I also think Breyer and Kagan are likely to go along with that as well. Even Sotomayor, who recently betrayed herself as a liberal wingbat in Schuette v. BAMN, asked at oral argument why it's OK for states to keep siblings from marrying if there's a right to same-sex "marriage", so there's an outside chance she won't fall prey to the gay lobby on this one.

    My guess: 7-2, at worst 6-3 to uphold state bans on same-sex "marriage" when that issue comes before the Court.

  • 129. StraightDave  |  May 7, 2014 at 9:48 pm

    Show me the money!

  • 130. TKinSC  |  May 7, 2014 at 10:02 pm

    I'm a closet-case. Ok – you got me.

  • 131. Background Gal  |  May 7, 2014 at 10:00 pm

    If you are going to discuss, and it looks like you are capable of it, drop the insults you love to pepper in your comments. Like the very degrading 'pretend "marriages"' snipe. My marriage is more real than your imaginary god.

  • 132. TKinSC  |  May 8, 2014 at 6:44 am

    You're right. I'm going to try and stop with the air quotes. I'm a closet-case and they gave me a false sense of power behind the anonymity of my keyboard. I would've never said it to your face. Too chicken.

  • 133. TKinSC  |  May 6, 2014 at 10:23 pm

    If you were ever a lawyer, you would know that Article IV specifically gives Congress the power to determine the effect of state recognition. In this case, Congress chose to make that effect as little as the state chooses to give.

    Not that Article IV has ever meant that states must accept out-of-state marriages (at all, much less those that violate its own public policy). At most, it means that states must recognize an out-of-state marriage as existing *in the other state*.

    Nor can the 14th Amendment sanely be applied to recognition of out-of-state marriages alone. If a state may deny marriage on the basis of gender parity, then it may deny recognition of out-of-state marriages for the exact same reason.

    Sorry but your attempt to use recognition as a wedge in the door for complete legalization of same-sex "marriage" is nothing more than a poorly-disguised ruse.

  • 134. Dann  |  May 6, 2014 at 10:40 pm

    Buzz off again TKinSC!

  • 135. TKinSC  |  May 7, 2014 at 10:05 pm

    Dann- I'm a big 'ole closet-case. This stuff happens sometimes.

  • 136. KarlS  |  May 8, 2014 at 6:08 am

    That wasn't even funny the First time, asshole.

  • 137. TKinSC  |  May 8, 2014 at 6:41 am

    But it's the truth. I mean think about it. It should've been obvious .

  • 138. Busybody Repellent  |  May 6, 2014 at 10:58 pm

    This one is a quite the kook who can't keep the crazy behind the curtain. He posts on other gay sites like Towleroad. Busybody. Can't resist an opportunity to hold others back. What an oddball. If you were normal, you wouldn't be posting on sites that have nothing to do with you.

    Obsess much?

  • 139. TKinSC  |  May 7, 2014 at 9:17 pm

    LOL that's rich. Someone who thinks two men or two women should be able to "marry" each other accuses me of being crazy and not normal.

  • 140. Busybody Repellent  |  May 7, 2014 at 9:50 pm

    This one doesn't address anything in the comment, and rambles some line from the corner of his one-man cage. Then goes on to post 4 comments in a row on a site that has nothing to do with him.

    He's still obsessing. Wow, what a kook.

  • 141. TKinSC  |  May 7, 2014 at 10:16 pm

    Busy: I"m a closet-case not that there's anything "wrong" with that.

  • 142. KarlS  |  May 7, 2014 at 12:36 pm

    It certainly does appear that you will be in the very last group of rats to desert that sinking ship, knuckledragger.

  • 143. TKinSC  |  May 8, 2014 at 6:39 am

    KarlS- I'm a closet-case just like you read about.

  • 144. Tim  |  May 6, 2014 at 9:55 pm

    Thanks Retired _Lawyer. What about prohibitions on marriage within the state a couple resides in (as opposed to recognition of marriages performed in other states)?

  • 145. Eric  |  May 7, 2014 at 1:43 pm

    That's a bit more complex. Most states already recognize out of state marriages that are not valid if performed in-state. It will all come down to whether the state can prove a compelling governmental interest.

  • 146. Dr. Z  |  May 7, 2014 at 7:42 pm

    It also comes down to whether the state singles out a class of people for discriminatory treatment.

  • 147. TKinSC  |  May 7, 2014 at 9:40 pm

    And it doesn't. A state's marriage laws are intended to, and do, apply equally to everybody.

  • 148. Deeelaaach  |  May 8, 2014 at 3:32 am

    <sigh>
    TKinSC, you're right that the law applies to everyone equally. And the rich and the poor are equally banned from sleeping under bridges, and a tax on yarmulkes is a tax on everyone who chooses to buy one. Hmmm, what can we learn from recent history? The law in some states at times prior to Loving v. Virginia was that whites were free to marry anyone who was white, and the same applied to other races. You could not legally marry someone of another race. Those wishing to marry someone of another race were told the law said they could only marry (freely?) within their own race, and that law applied equally to everyone.

    Today by law a man is free to marry a woman and a woman is free to marry a man. Those wishing to marry someone of the same sex are often told that the law says they are free to (cough, can only! cough, cough) marry someone of the opposite sex, and this applies equally to everyone. Um, yeah. Let me borrow from and paraphrase Dr. Phil: "How did that work for the anti-miscegenation argument?"

    The Justices in Loving understood that a law that appears to apply equally to everyone (see above) can actually be discriminatory. They ruled accordingly. They also understood that the bias in the law was based on the immutable characteristic of race. The bias in anti-marriage equality laws are also based on the immutable characteristics of one's orientation and by extension, one's identity also.

    Yes TKinSC, believe it or not, there is a growing body of scientific evidence that indicates that sexual orientation and gender identity are indeed immutable, and even run in families (cough, genetics!). See http://www.webmd.com/sex-relationships/news/20050… for just one such article of many. No, I couldn't find the one I was looking for since that particular haystack is growing. But once the reality that these characteristics are immutable dawn on the vast majority of the population, seeing the parallels between Loving and the LGBT community is inevitable.

    <sigh>

    I know, I know, you're a closet case. You don't need to tell us. We've heard it so many times before.

  • 149. TKinSC  |  May 7, 2014 at 10:17 pm

    Dr Z: Closet-case I am.

  • 150. TKinSC  |  May 7, 2014 at 9:39 pm

    States don't need to prove a compelling governmental interest. All they need is a legitimate interest, and a rational (whether correct or not) belief that the policy is related to it.

    A state is free to recognize all, some, or no out-of-state marriages (and "marriages") that it would not allow in-state.

  • 151. Deeelaaach  |  May 8, 2014 at 3:34 am

    Huh, then why is government interest such a large part of scrutiny? I guess I just don't understand things like you do.

  • 152. StraightDave  |  May 8, 2014 at 6:19 am

    Sorry, TK, but an incorrect belief that is based on false premises is, by definition, not rational, no matter how many people fervently believe it. Uninformed delusions don't qualify as "legitimate". Otherwise, sheer stupidity would be enough to make a law constitutional.

  • 153. TKinSC  |  May 7, 2014 at 10:18 pm

    Eric: In case you miss it, I am a closet-case. Will I still be one if I just come out online? I'll have to see what Plessy says about that.

  • 154. Ragavendran  |  May 7, 2014 at 2:10 pm

    Last week, NOM filed a "Notification and Request Regarding Recusal" in the Oregon case, asking for some information from Judge McShane so it can decide whether to press for recusal or not. The Plaintiffs' response to this is priceless:

    This peculiar non-motion about an admitted non-issue, filed at a time when the organization does not even have a right to participate in this case, serves only to distract the Court and the public from the serious legal questions this matter poses. There is no basis in the Federal Rules of Civil Procedure or elsewhere for NOM to seek discovery in connection with a recusal motion, especially when the questions it poses pry into the Judge’s personal life and private thoughts about his relationships and his children.

    Further, in their filing, NOM calls themselves "Intervenors" when their motion to intervene is still pending and hasn't been granted yet!

  • 155. Deeelaaach  |  May 8, 2014 at 3:37 am

    So does this mean that NOM is essentially asking to go on a fishing expedition? If so, that's a new one on me, though I'd guess it's been tried before.

  • 156. StraightDave  |  May 8, 2014 at 6:29 am

    Yes, they're asking for a fishing expedition to find evidence to prove that they have the right to go fishing in the first place, even though what they are trying to find won't support that right even if they do find it. But they're secretly hoping to find some other "dirt" they can use to blow up the case by simply heaving it into the mix.

    Oh, and money. And attention. Shoulda never got a hearing, but McShane may just be bending over backwards without really impacting the schedule at all. This circus will be over in a week.

  • 157. Deeelaaach  |  May 11, 2014 at 3:19 am

    Thanks StraightDave. Sorry I didn't reply to this sooner.

  • 158. Retired_Lawyer  |  May 7, 2014 at 3:53 pm

    Let us hope that Judge McShane denies NOM's attempt to intervene, NOM appeals, and the denial is upheld by the 9th Circuit. NOM can spend its time and money spinning its wheels without bothering our community further.

  • 159. Big Rick  |  May 7, 2014 at 4:39 pm

    If the judge denies NOM's intervention, can NOM really appeal that to the 9th Circuit? They're not part of the case either before or after the judge's denial of their motion to intervene.

    If NOM can appeal to the 9th Circuit, would that stop the judge from issuing a summary judgement in the case until NOM's appeal is resolved? If so, then that may be NOM's strategy. It seems that any appeal to the 9th Circuit will result in a lengthy indeterminate delay.

  • 160. Kevin  |  May 7, 2014 at 5:38 pm

    There are two types of intervention: Intervention as of Right and Permissive Intervention. The former involves intervenors who are either identified in a particular statute or whose property is the subject of the lawsuit. The latter involves litigants who share a common question of law or fact with the parties to the main action. In the Ninth Circuit, motions denying intervention as of right are considered final orders and may be immediately appealed (in fact, they must be *immediately* appealed if the losing party is going to appeal at all; in other words, you cannot wait until the final judgment). Motions denying permissive intervention are not, in the strictest sense, appealable in the Ninth Circuit; however, they are subject to an "abuse of discretion" review. This is an extremely high bar and not one likely to be met in this case.

    NOM's filing asks the court for permission to intervene on both these theories, although how they would satisfy the first is beyond me. This means that they are likely to appeal the inevitable denial. However, this need not stop the proceedings below because if their appeal were successful, the Ninth Circuit would just vacate the district courts order and opinion and remand with NOM as a defendant-intervenor.

    Having said that, NOM's chances for success here are 0%. The filing is plainly untimely. They have no justification for intervention as of right. And permissive intervention is at the discretion of the judge.

  • 161. Stefan  |  May 8, 2014 at 12:25 am

    I also expect McShane will not stay his ruling either.

  • 162. david  |  May 7, 2014 at 4:18 pm

    Michigan's AG files his brief …… .http://www.detroitnews.com/article/20140507/POLITICS03/305070108/Campaign-planned-ballot-initiative-legalize-gay-marriage-Michigan

  • 163. Ragavendran  |  May 7, 2014 at 7:29 pm

    PACER shows opening briefs have been filed in Michigan's DeBoer, Tennessee's Tanco, and Kentucky's Bourke at the Sixth Circuit – they all have identical briefing schedules.

  • 164. StraightDave  |  May 7, 2014 at 9:54 pm

    Sounds like a triple-header hearing coming up. Take a number, get in line, 1-2-3 bang! Write 'em up.

    Is a hearing scheduled yet? If not, what's the final briefing date?

  • 165. Ragavendran  |  May 7, 2014 at 10:03 pm

    Oral argument is not scheduled in any of these cases, but briefing is due to be completed by June 26. So, the earliest possible date for oral argument is during the Sixth Circuit's July 28 – August 8 session. The Tanco case has been officially expedited, so its briefing/argument schedule could be changed.

  • 166. DaveM  |  May 8, 2014 at 6:15 am

    DeBoer: http://www.scribd.com/doc/222760327/14-1341-46
    Tanco: http://www.scribd.com/doc/222807332/14-5297-32
    Bourke: http://www.scribd.com/doc/222748501/14-5291-21

  • 167. TKinSC  |  May 8, 2014 at 7:36 am

    Anything groundbreaking in the State's arguments? I saw a headline that it was a lot of affirmative action justification. I don't want to read it. Can someone please post their take on it?

    By the way, why haven't there been any recent front page posts? Is everyone ok?

  • 168. montezuma58  |  May 7, 2014 at 5:11 pm

    New suit in AL http://blog.al.com/live/2014/05/mobile_couple_bec

  • 169. TKinSC  |  May 7, 2014 at 10:46 pm

    The latest on the marriage equality lawsuit in Florida state court. Almost used air quotes but caught it in time. Hard habit to break 🙂 lol

    I hope the judge doesn't put a stay or abatement on the proceedings so it can move forward for the plaintiffs.
    http://miamiherald.typepad.com/gaysouthflorida/20

  • 170. Mike in Baltimore  |  May 8, 2014 at 2:36 am

    Any stay the judge might put on a case does NOTHING to halt an appeal, and any abatement the judge might put on a case can be appealed.

    Do you think we think you actually know anything about legalities?

  • 171. StraightDave  |  May 8, 2014 at 6:41 am

    OK, so these people are saying the judge should halt proceedings in the case because some people might not like her decision? That's their only reason?

    "Since mid-April, the Christian Family Coalition of Florida has sent several emails to members asking them to write to Zabel that she should grant the postponement.

    “If Circuit Court Judge Sara [sic] Zabel denies the motion to abate then in all likelihood she intends to strike down the Florida Marriage Protection Act,” writes the coalition."

  • 172. TKinSC  |  May 8, 2014 at 6:53 am

    Yes, it's silly. They're just trying to stall it. In the article, they indicate they think, if she stays it, she'll eventually side with the defendants when no other judge has. The "Christian" group that doesn't even act very Christian is being delusional. And my air quotes are justified this time. They're very selfish, and think of themselves – anything to be unhelpful to LGBTs. I'm tired of it.

  • 173. davep  |  May 8, 2014 at 8:00 am

    I notice that there have been no new articles posted to this site in three days. That's very unusual. I've been here since day one and I don't remember this every happening before. What's up?

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