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Arkansas Supreme Court asks for responses to stay request by 2PM today

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Arkansas state sealUPDATE: The Arkansas Supreme Court has granted the stay. Marriages are halted. The plaintiffs filed their response to the stay request earlier, and it can be read here.

The Arkansas Supreme Court is asking the same-sex couples who are plaintiffs in Wright v. Arkansas, the same-sex marriage case, to respond to the state’s request for a stay by 2PM today, Friday, May 16.

The law firm that filed the case had reported previously that responses were due on Monday. The latest move speeds up the timeline.

The state’s new request for a stay is here. Several counties have also petitioned the court for a stay, and that filing is here.

Yesterday, the circuit court judge who struck down the ban issued a new order clarifying his ruling in response to the state supreme court’s dismissal of the appeal. Their decision noted that his initial order had not addressed all the laws the plaintiffs had asked him to strike down, so that meant his order wasn’t final. Their decision led to some confusion over whether marriages could continue in the state, and his subsequent final order made it clear that he struck down all laws banning same-sex marriage in the state.

The state then appealed his final order to the Arkansas Supreme Court, and filed the new request for a stay.

Presumably, the state supreme court wants to act on the request before next week.

Thanks to Kathleen Perrin for these filings

For more information on Wright v. Arkansas from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Rose  |  May 16, 2014 at 9:22 am

    From the State's brief for requesting the Stay:
    The Supreme Court grants a stay if there is “a fair prospect that a majority of the Court will vote to reverse the judgment below.”

    This is NOT accurate…….just because a Stay has been granted by SCOTUS is NOT an indicator that they will rule in favor of the State and to use this as the State is doing is purely ridiculous!!!

    I seriously DOUBT that ANY of the States will ultimately be successful on their appeal and UNTIL the State can ACTUALLY provide some evidence according to the ACTUAL guidelines for a Stay, the Stay should be denied!!!

  • 2. Bruno71  |  May 16, 2014 at 9:29 am

    I think it's referring to the Arkansas SC?

  • 3. Rose  |  May 16, 2014 at 9:32 am

    I know it is, but still just because a stay was granted DOESN'T mean that the State or ANY state will prevail in the long run and to try and say otherwise is just bad lawyering!!!

  • 4. Guest  |  May 16, 2014 at 9:34 am

    No, it's referring to SCOTUS, and it's true. That is the one part of the test for a stay. Rose read more into it than the plain meaning if the sentence.

  • 5. Rose  |  May 16, 2014 at 10:07 am

    I have……the guideline for a stay are like 4 things:
    1) Possible chance of success on appeal—–NOT happening
    2)Must show some harm—–The State CAN'T
    3) That the other party will not be harmed—–again Gays and Lesbians are being Harmed
    4) That the public interest will be served by granting the stay.—-Again the ONLY interest being served is the ANTI-GAY folks!!!

    Again, the guidelines are NOT being followed and just because a stay was granted is NO guarantee that they will win on appeal!!!

  • 6. Lymis  |  May 16, 2014 at 11:47 am

    While I certainly agree it SHOULD, I don't know what you are basing your determination that there's no way the appeal will win. Barring an actual Supreme Court binding precedent, it's very much in play.

    Wish that weren't true. Agree it should be. Don't see that it is.

  • 7. Guest  |  May 16, 2014 at 12:08 pm

    Exactly. My only point was that the brief correctly stated one part of the four-part test. I personally do not believe a stay is justified, but the quote above is accurate.

  • 8. Eric  |  May 16, 2014 at 10:11 am

    I'm not sure how you reach that conclusion. SCOTUS didn't give a reason for the first stay and the other court cowards haven't pushed the issue to get a reason other than tradition.

  • 9. Dr. Z  |  May 16, 2014 at 10:29 am

    Also, this decision is saying the DOMA law is unconstitutional based on the state as well as the federal constitution. SCOTUS would have a difficult time justifying staying a decision based partly on state law.

  • 10. grod  |  May 16, 2014 at 10:28 am

    The Country Clerks, including Washington where licenses are still being issued, raise a number of particular but unusual circumstances – age male and female can marry differs. They ask that a stay be granted so these matters can be addressed, and uniformly implemented across the state. Clerks ask whether such changes should be contemplated before knowing if the law is indeed going to change [on appellate review]? Looking at it from their point of view, and the role that they are mandated to play, I was more sympathetic that I thought I would be on beginning to read their brief. However other states have been similarly situated and have implemented court decisions quickly.

  • 11. Ragavendran  |  May 16, 2014 at 10:33 am

    I agree that the clerks may seem to raise some valid points, but even if their points are accepted, that still doesn't merit a "stay pending appeal," which could last for several months, depriving citizens of their constitutional rights for such a long time. Think of what Judge Heyburn did in Kentucky. He first issued a stay for a limited time to give the State enough time to sort out all these hiccups should it decide not to appeal. I would think something like that would be acceptable here. The Arkansas Supreme Court could issue a temporary stay and, once again, ask Judge Piazza to address these concerns in a separate order.

  • 12. SeattleRobin  |  May 16, 2014 at 12:01 pm

    I'm speechless after reading it myself. How can you say they have valid points? I don't know of any other state that had difficulty understanding that aside from the fact that both people can be the same sex, all other eligibility laws remain in effect and continue to be followed.

    If they're both girls follow the age law for girls. If one of them is pregnant follow that. Part of the benefit of marriage is the presumption of parentage for any children born while married. It doesn't require that the other person is the biological parent.

    And while the close kinship restrictions exist primarily because of genetic issues, incest is an extremely strong taboo in our culture for several reasons, all of which still apply to same sex couples.

    If anyone thinks the eligibility laws should be changed, then they can get their legislators to work on it. But 17 other states have proven that following existing laws is neither difficult or confusing.

    I will say I have no freaking clue what a covenant marriage is or what makes it different from a regular marriage.

  • 13. Ragavendran  |  May 16, 2014 at 12:06 pm

    To clarify, I didn't say they have valid points. Keywords "may", "even if their points are accepted" to posit a hypothetical wherein the Arkansas Supreme Court was somehow persuaded by those points and it appeared valid to them. I understand your frustration. I'm reading the Plaintiffs' response that was just filed to see how they're addressing it.

  • 14. SeattleRobin  |  May 16, 2014 at 12:11 pm

    Gotcha. Off to read the response now too. I hope plaintiffs sound as flabbergasted as I feel.

  • 15. Ragavendran  |  May 16, 2014 at 12:19 pm

    Just skimmed it. They say they respond to both stay petitions in the beginning, but they don't seem to address the specific "issues" pointed out by the county clerks. Otherwise, their response is strong. They've copied passages copiously from their previous response, as they are still relevant, and have added strong references to what the New Jersey Supreme Court's denial of stay. This should be very interesting to watch what the Supreme Court now does.

  • 16. Bruno71  |  May 16, 2014 at 12:21 pm

    They implicitly respond to the clerks' stay request in that none of the issues the clerks bring up fall under one of the criteria for a stay that they address in the brief. Their issues may or may not need to be addressed in some way, but none require a stay here.

  • 17. davep  |  May 16, 2014 at 1:08 pm

    You're grasping at straws. And missing them.

  • 18. bayareajohn  |  May 16, 2014 at 1:08 pm

    Once in a while, TK, you post something that, while I may still disagree, is relatively well reasoned and only moderate in presentational insult (putting marriage in quotes). This is one.

    But then again, even a stopped clock is right twice a day.

  • 19. Chuck from PA  |  May 16, 2014 at 1:22 pm

    Looking up Covenant Marriage in Wikipedia I found the following definition:

    "In four states (Arizona, Arkansas, Kansas, and Louisiana) of the United States, a covenant marriage is a legally distinct kind of marriage, in which the marrying couple agree to obtain pre-marital counseling and accept more limited grounds for divorce.

    The movement sets out to promote and strengthen marriages, reduce the rate of divorce, lessen the number of children born out of wedlock, discourage cohabitation, and frame marriage as an honorable and desirable institution.[1] As a law, covenant marriage is technically written neutrally with respect to religion, however it quickly became marked as a religious form of marriage, due to its historical background.[2]"

  • 20. SeattleRobin  |  May 16, 2014 at 9:28 pm

    Thanks for the info. It sounds like something a church should handle for couples they marry, not something written into state law. Weird.

  • 21. sfbob  |  May 19, 2014 at 9:42 am

    And THEY say WE'RE trying to change the definition of marriage?

    I would love to see "covenant marriage" challenged in court as a violation of the Establishment Clause. But I'm not going to hold my breath waiting for it to happen.

  • 22. Sammy  |  May 16, 2014 at 1:30 pm

    This one has -68 IntenseDebate points and a glaring red next to his name. That means STAY AWAY from it. It's a stinker!

  • 23. Eric  |  May 16, 2014 at 1:31 pm

    That the state recognizes the marriages of infertile opposite-sex couples and doesn't force the marriage of opposite-sex couples that procreate is what predicates the notion that marriage and procreation are distinct.

    Obviously heterosexual prohibitions against inbreeding wouldn't apply to same-sex couples. As is evidenced though out the Bible, opposite-sex couples need more guidance and regulation of their relationships.

  • 24. davep  |  May 16, 2014 at 10:21 pm

    You have absolutely no idea what you are talking about. Keep deluding yourself with your long-debunked rhetoric if you wish, but you are completely out of touch with reality and logic.

  • 25. SoCal_Dave  |  May 17, 2014 at 9:04 am

    If procreation was the primary interest of the state when it comes to marriage, the state would not just "play the odds" when it comes to infertile couples. Laws are not made with the expectation that *some* people will be given a pass on the primary goal because it's too difficult to "micromanage" them. That is absurd.

    The vast majority of women past the age of menopause are NOT likely to procreate. The state has demonstrated a willingness to put age limits based on gender. Easy solution, if procreation were actually the main purpose. Since such restrictions do not exist, it shows the animus that you pretend does not exist. So does your exclusion of gay people from possible "miracles".

    Last time you tried to come up with an excuse for older people being allowed to marry, it was that they provided an "example". (totally laughable since they provide only an example of people NOT procreating). Now it's just that the odds are against no procreation and it's not worth tracking, even though it's supposedly the primary reason for the laws. I suppose you will keep trying to find a reason that is not the actual one – marriage does not require procreation.

  • 26. SoCal_Dave  |  May 19, 2014 at 9:28 am

    To obtain a driver license, one must prove ability to drive – there's even a test for it. To obtain a marriage license, one need not prove ability to procreate – it's not even asked about.

  • 27. SoCal_Dave  |  May 17, 2014 at 9:07 am

    You're really saying "a girl at minimum age is expected to marry a man a few years older than her"?? Really?
    Where is that in the law? You're again just making up shit as you go.

    To my fellow EOT'ers, I apologize for feeding the troll. I'm done.

  • 28. SoCal_Dave  |  May 19, 2014 at 9:37 am

    Replying to myself (does that count?) but couldn't let this misinformation stand…

    •Males and females shall reach the age of 18 years to contract for a marriage license in Arkansas. Males age 17 or females ages 16 or 17, may be married with parental consent.

    So min.age for males = 17, min.age for females = 16. Not "a few years", or even a couple of years, but exactly one year.

  • 29. Eric  |  May 16, 2014 at 10:36 am

    I don't understand their confusion, the answer is in their brief:

    "The duty of a county clerk is to apply the law as written. They are neither charged with the duty nor given the discretion to do other than administer the law, as written."

  • 30. SoCal_Dave  |  May 16, 2014 at 12:35 pm

    Exactly. I think they are fishing for excuses. Why would they even question the age requirements? It's another attempt to treat marriage of same-sex people as something "different".
    I do agree that separate age requirements for males and females is wrong but it was wrong before. The clerk's job isn't to question why the rule was made, or how it might be changed, it's to administer the law, as written.

  • 31. SoCal_Dave  |  May 16, 2014 at 12:45 pm

    While we're on the topic, they also complain that "The law as currently written does not prohibit same-gender close relative marriages."
    But they list that no parents are to marry children and no cousins are to marry each other. Why do they say that does not prohibit for same-gender? Parents and cousins are close relatives regardless the gender. There is no confusion there.
    There IS some gender specific language about uncle-niece, aunt-nephew, and brother-sister restrictions. The clerks speculate as to why those laws exist and if similar are needed for same-sex couples. But again, it's not their place to justify or question the laws, it's their job to administer the law, as written.

  • 32. Mike in Baltimore  |  May 16, 2014 at 2:39 pm

    Before I retired, I was involved in writing and administering Federal contracts. As a Contracting Specialist, my job was to administer the law and regulations.

    If I had problems with the manner in which the law and/or regulation was written, I had a moral obligation to discuss it with the agency's legal staff, and I was encouraged to discuss the problem AND a method to get around the problem with the person or persons who was in a position to solve the problem. Until the law or regulation was changed, though, I still had to administer contracts in the manner the law specified.

  • 33. Rose  |  May 16, 2014 at 11:23 am

    What age? Are the Clerks saying that under 18 years old are applying for Marriage Licenses?

  • 34. Lymis  |  May 16, 2014 at 11:52 am

    The age thing can't possibly be an issue. Gay men are still men, and lesbians are still women, as are bisexuals. Even gender fluid or trans people still have a legal binary gender.

    Any otherwise qualified person can marry at 18 in Arkansas, and people under 18 need parental approval or court orders. But even if two women with parental approval can marry younger then two men with parental approval, the ages are still clear.

    Matching the ages up to each other may be something that the legislature should address but it can't possibly be a justification for continuing to deny marriage – certainly not to anyone over 18.

  • 35. Larry  |  May 16, 2014 at 12:24 pm

    I think there's a fairly easy solution to all of the scenarios mentioned by the clerks that doesn't require a stay. Based on the judge's ruling – all statutes referring to genders should be read as gender neutral. Laws against aunt-nephew and uncle-niece marriage would apply equally to a person wanting to marry any of their parents' siblings. Laws about underage pregnant women would apply regardless of who they're marrying. 16 year old women can marry each other, while 16 year old men can't. For that last one, different age limits for men and women are clearly unconstitutional. I don't know why someone hasn't sued about it before since I'm sure at least one 16 year old guy has wanted to get married in Arkansas before, but that's a matter for a different lawsuit.

    But I don't see any problems here that couldn't be cleared up with a 1 page guidance from the attorney general to all county clerks.

  • 36. Ragavendran  |  May 16, 2014 at 12:26 pm

    I think that 16 year old guy (and/or his parents) might have just opted to wait a year rather than spend time and money litigating 🙂

  • 37. Eric  |  May 16, 2014 at 1:36 pm

    If the government's stated legitimate interest is to prevent heterosexuals from inbreeding, what's the problem?

    Marriage is still a fundamental right and the same requirements still apply if government wants to infringe upon that right.

  • 38. SoCal_Dave  |  May 16, 2014 at 3:14 pm

    Using your "logic" about same sex marriage… [gays and lesbians are free to marry someone of the opposite sex just like straight people]… _Gay people are banned from the aunt-nephew uncle-niece restrictions just like straight people. Straight people and gay people are both treated equally (no restriction) on aunt-niece or uncle-nephew marriages. _If some people feel that's unconstitutional, perhaps they could bring a lawsuit.

  • 39. davep  |  May 17, 2014 at 1:19 am

    There's no problem. This issue is civil marriage for same sex couples. And on THIS issue, it has been proven that denying them the legal status of 'kinship' that comes from civil marriage harms them in a vast number of ways, and that doing this serves no legitimate purpose.

    If someone wants to marry a sibling, they have always had the option to take their complaint to the court and argue their case. They could have done so long, long before any same sex couples were legally marrying. It is a separate legal questions and would be decided separately, on it's own merits. Neither issue is dependent on the outcome of the other. You are once again engaging in long-debunked slippery slope rhetoric that has already been completely debunked over and over again, revealing that you are either uninformed about this entire issue and have a lot of catching up to do, or you are being willfully ignorant.

  • 40. Jeremy  |  May 18, 2014 at 1:29 am

    "Why? Because marriage is about procreation, and related couples shouldn't procreate.

    Nonsense, where is procreation or parental fitness codified in civil marriage law. No, you cannot just assume, law writing and legislation has to be specific and designate those who are exempt from your so called procreation requirement. If a law is so full of holes like swiss cheese then the legislature needs to address. But I seriously doubt any legislature would consider procreation legislation in civil marriage law. Sorry, your logic does even pass rational basis.

  • 41. davep  |  May 19, 2014 at 10:25 am

    In these cases regarding a law that results in different legal treatment of a group of people, the most basic legal questions are:
    1 – Does this 'different legal treatment' HARM the targeted group?
    2. Does the law serve a valid purpose that would justify allowing this unequal legal treatment and harm to continue?

    If the answer to the first question is "no", there's no need to answer the second because there is no case.

    So again – what does marriage do, in the legal sense? It establishes legal "kinship" upon a couple who were previously not 'legally family', which then makes numerous other laws and rights and responsibilities apply to the couple.

    Bu a couple who are already 'family' because they are related are in a different legal situation than a same sex couple, and it is not clear that they would be able to prove a "YES" answer to question #1 above. So again, separate legal questions are answered separately on their own merits. Your idiotic slippery slope nonsense just won't play to any crowd other than the willfully ignorant.

  • 42. SoCal_Dave  |  May 17, 2014 at 8:43 am

    Agree with davep, there is no problem to solve. If you think there is, as I said, you could always bring a lawsuit. I'd love to see it, TK sues the state of AR because he can't marry his niece.

  • 43. Zack12  |  May 16, 2014 at 9:32 am

    Courts have granted stays on certain rulings for any number of reasons for decades now.
    Where on earth do these guys and gals get the idea that reversal is the only reason they will grant one?

  • 44. Lainey  |  May 16, 2014 at 9:54 am

    Can someone post the rules/guidelines for courts issuing stays again? Thanks.

  • 45. Ragavendran  |  May 16, 2014 at 10:01 am

    From the Michigan (federal appeals court) opinion granting stay of the district court's order:

    In deciding whether to grant a stay of a district court’s grant of injunctive relief, “we consider (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies."

    State courts may have different criteria, but I doubt that they differ substantially.

  • 46. Lainey  |  May 16, 2014 at 10:08 am

    Thanks. So the court could not think defendants met items 1-3 but could think they met item 4 and thus issue a stay? In other words, all 4 criteria don’t have to be met but only some or one?

  • 47. Rose  |  May 16, 2014 at 10:11 am

    In most of these cases where is a stay has been granted….NONE of the criteria has been met, yet a stay is still granted for what reason I'm NOT sure except to continue to harm Gays, Lesbians and their families!

  • 48. Ragavendran  |  May 16, 2014 at 10:21 am

    Not really. There is a "balance of harm" doctrine as well, in how courts must balance the four factors when they individually conflict. Some examples follow.

    From the same Sixth Circuit order (the dissent part):

    "In order to justify a stay of the district court's ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted."

    From the 10th Circuit's denial of a stay in Utah's case:

    "The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively."

    From a Kansas district court on a non-marriage-related case:

    If the moving party can establish that the other three factors tip decidedly in its favor, the “likelihood of success” requirement is somewhat relaxed. Under these circumstances, likelihood of success is demonstrated when the moving party has raised “questions going to the merits so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.”

    And I concur with Rose about none of the criteria having been met – it has been clearly pointed out in all the situations where a district court has denied to stay its own ruling (but was eventually overruled by a higher court which uses a novel and revolutionary "gay means stay" doctrine, which doesn't require any of the four criteria to be met, like Eric points out below).

  • 49. Rose  |  May 16, 2014 at 10:08 am

    Thank you for posting this……I posted them as well, but not the official wording!!!

  • 50. Eric  |  May 16, 2014 at 10:08 am

    Four factors guide the Court’s consideration of the State’s request for
    a stay pending appeal: (1) the State’s likelihood of success on the merits; (2) the
    likelihood of irreparable harm absent a stay; (3) the balance of equities; and (4) the
    public interest. See Winter v. Natural Res. Defense Council, 555 U.S. 7 (2008).

  • 51. Lainey  |  May 16, 2014 at 10:21 am

    Thanks Eric. So only 1 of the 4 criteria needs to be met in order to grant? For example, "public interest" but not the others?

  • 52. Eric  |  May 16, 2014 at 10:37 am

    According to SCOTUS, 0 of the 4 criteria needs to be met in order to grant a stay.

  • 53. Eric  |  May 16, 2014 at 10:38 am

    Traditionally unconstitutional laws are not in the public interest. But, apparently, that legal reasoning has been recently redefined to exclude the LGBT community.

  • 54. davep  |  May 16, 2014 at 1:42 pm

    That ignores WHY they lost. They lost because they had no argument. The law was blatantly unconstitutional. It subjected a targeted group to harmful denial of Equal Protection and failed to advance any states interest or serve any purpose that a law ought to be serving, so there was nothing to justify allowing the harm and denial of equal legal treatment to continue. It is this harm, and this complete lack of an argument to support the law, which shows their unlikelihood of prevailing on appeals, since they won't have any more of an argument then than they did in the first trial.

  • 55. Dann  |  May 16, 2014 at 9:56 am

    All of these stays are to give all the bigots time to get used to the idea of SSM.

  • 56. LK2014  |  May 16, 2014 at 11:03 am

    Exactly. That would be unspoken Criteria #5.

  • 57. Bruno71  |  May 16, 2014 at 11:15 am

    Right. So they don't start a civil war over teh gayz marrying. Or something worse.

  • 58. Quest  |  May 17, 2014 at 6:55 pm

    Screw them. It doesn't matter if they like it or not. I think they're repulsive, but that doesn't matter to them, and yet, they've never had anything taken from them.

  • 59. Margo Schulter  |  May 16, 2014 at 10:17 am

    Basically in federal law, the fourfold factors for a stay, with the first two most important, are: (1) Applicant’s likelihood of success; (2) “Irreparable injury” absent a stay; (3) Any substantial injury to other parties if a stay is granted; and (4) Where the public interest lies. See, e.g., Nken v. Holder, 556 U.S. 418 (2009).

  • 60. Eric  |  May 16, 2014 at 10:33 am

    I don't understand the brief field by the counties. They ask and answer their own questions as to why they need a stay.

    "Every male … seventeen (17) .. and every female … sixteen (16) … shall be capable in law of contracting marriage. How is this to be applied to same-gender applicants? What is the legal age of marriage for same-gender applicants? Is it a different age for male same-gender applicants than for female same-gender applicants?"

    It then follows with a question about pregnancy and closely related relatives. And concludes with their answer:

    "The duty of a county clerk is to apply the law as written. They are neither charged with the duty nor given the discretion to do other than administer the law, as written."

    They counties provided their own answer to their questions, what do they need a stay for?

  • 61. George  |  May 16, 2014 at 10:39 am

    Wait, sort of off topic but how on earth is setting different minimum ages for marriage by sex constitutional? Isn't setting a minimum age of 17 for males and 16 for females a blatant violation of the 14th amendment?

  • 62. Eric  |  May 16, 2014 at 10:44 am

    That sounds like a good gender discrimination case to bring by a pair of 16-year old boys that want to marry.

  • 63. Ragavendran  |  May 16, 2014 at 10:53 am

    I guess people would just wait one more year than spend time and money litigating!

  • 64. Big Rick  |  May 16, 2014 at 12:14 pm

    Why would it need to be a same-sex couple? Any 16-year old boy wanting to marry could bring such a suit, I would think.

  • 65. davep  |  May 16, 2014 at 12:38 pm

    Yup. The issue of differences in age restriction by gender is irrelevant to this issue.

  • 66. mnbob  |  May 16, 2014 at 3:44 pm

    Yup. It's a messed up law that doesn't apply to the same sex marriage equality issue.

  • 67. StraightDave  |  May 16, 2014 at 10:50 am

    Rational basis and different biological rates of maturation are probably good enough to pass muster. Not that I think 16 year old girls should be getting married in the first place…..but it might save them some embarrassment. Boys apparently don't get embarrassed enough to need saving.

  • 68. Thomas  |  May 16, 2014 at 10:53 am

    Maybe they should stop issuing all marriage licenses until this point is cleared up and every other t is crossed & i is dotted.

  • 69. sfbob  |  May 16, 2014 at 11:09 am

    I believe the general minimum age for marriage is 18 but, with parental consent, is 17 for males and 16 for females. There are plenty of unexamined, or at any rate unstated, assumptions behind the age differential. I would presume that it reflects the idea (now rather quaint) notion that among other sex-based stereotypes the male of the household will be the breadwinner and therefore needs to be old enough to work for a living.

    There are some other states with differential minimum ages for marriage (all with some sort of consent): Delaware, Massachusetts (14 and 12!), New Hampshire (14 and 13), Ohio and Rhode Island (for women only; men must be 18 but women can marry at 16 with parental consent). It appears that in MS one must be 21 to marry without parental consent but while there is no legal age restriction WITH consent, in practice it is 17 for men and 15 for women. In Nebraska the minimum legal age for marriage is 19. Otherwise it's 18 and where there is a lower age in case of consent, that age is the same for men and for women.

  • 70. Lynn E  |  May 16, 2014 at 1:38 pm

    Conversely, it may be a method to reduce the number of children born out of wedlock.

  • 71. Rose  |  May 16, 2014 at 11:29 am

    You have a point….but before Same-Sex couples were allowed to marry in California, there was an age criteria for those wanting to enter in to a Domestic Partnership that was different than if someone wanted to marry.

    For DP's, NO ONE under the age of 18(even with parental consent) could enter into a DP, HOWEVER a 17 year old guy and girl could legally get married with parental consent…….and to me that is DISCRIMINATION……..what difference does it make if 2 17 year old young men want to marry….if the age is 17, then it should NOT matter if they be straight or Gay!!!

  • 72. Ragavendran  |  May 16, 2014 at 10:43 am

    Good point! For two men marrying, then, they both should be seventeen or older. And for two women, both should be 16 or older. Similarly for the other questions. It's going to be interesting to see how the Plaintiffs respond 🙂

  • 73. Rose  |  May 16, 2014 at 11:50 am

    I can't wait to see the response……I don't read the proponents briefs much anymore because if you've read one, you've read them all pretty much, but the Plaintiff's responses are much more informational!!!

  • 74. Ragavendran  |  May 16, 2014 at 12:01 pm

    Here it is:

  • 75. Rose  |  May 16, 2014 at 12:07 pm

    Thank you for posting the response……..again, the plaintiff's and their lawyer's have shown that the State has NOT met the burden of proof and therefore the stay should be denied……now we will see how the Court decides!!!

  • 76. StraightDave  |  May 16, 2014 at 10:46 am

    It's obvious, Eric!
    Now that marriage is "genderless" (and, apparently, each of it's participants), they don't know whether to apply 16 or 17. Duh

  • 77. Margo Schulter  |  May 16, 2014 at 10:35 am

    In practice, as Dann and others have suggested, the decisions may be largely political. Here I suspect that at least three types of “unwritten” factors may apply:

    (1) While Windsor strongly suggests that state marriage bans will fail, that question, of course, is explicitly reserved. So SCOTUS may want to lean over backward to treat it as a nontrivial issue rather than a given.

    (2) For Justice Kennedy, both federalism (as in Schuette) and Fourteenth Amendment equal protection are big values, so they’d like to have the appearance and reality of giving weight to both. Here, it might seem more decorous, for example, to have a federal circuit court rather than district court make a ruling before marriage equality goes into effect in a given State.

    (3) Not to read the tea leaves, but in last year’s SCOTUS arguments, more than one Member of the Court suggested that they’d prefer to let things “perc.” Maybe granting district-level stays is a compromise between the schedule they might have preferred, and that dictated by fast-paced reality, which is on the side of justice.

    The downside of all this is that “federalism” and “comity” translate into discrimination and uncertainty for families who in fact have an obvious right to marry or to have their existing marriages recognized everywhere.

  • 78. StraightDave  |  May 16, 2014 at 10:39 am

    I hadn't noticed this before, but now it made me chuckle hopefully.
    In the State's motion for a stay, explaining why a stay is justified:

    6. The State is likely to succeed on the merits of its appeal for the reasons that the State has already set forth in the State’s exhaustive briefing on summary judgment before the Circuit Court.

    In other words, the same arguments that failed last time are the exact same ones that will succeed this time? That doesn't smell like a stay coming on. And, honestly, the ASC hasn't exactly fallen all over themselves to hurry and get a stay imposed, not even a temp stay for a stay.

  • 79. davep  |  May 16, 2014 at 10:58 am

    Yup. It brings to mind a certain Bullwinkle J. Moose.

    "Hey, Rocky! Watch me pull a rabbit outta this hat!"

    "Again? Aw that trick never works."

    "This time for SURE!!"


  • 80. StraightDave  |  May 16, 2014 at 11:13 am

    Showing our age, but that ^^^^!
    This time I think they're outta hats, outta rabbits, outta Schlitz…

  • 81. Mike in Baltimore  |  May 16, 2014 at 3:23 pm

    My lover had a different name for Schlitz.

  • 82. KarlS  |  May 16, 2014 at 4:09 pm

    "…when you're outta Schlitz, you're outta ………….dishwater.

    (J/K, it wasn't all that bad a beer) 🙂

  • 83. Margo Schulter  |  May 16, 2014 at 10:45 am

    George, that occurred to me also when I read that filing. But, assuming the distinction is constitutional, which would require an “exceedingly persuasive” justification, United States v. Virginia (1996), what’s problematic about saying that two women marrying must each be at least 16, and two men each at least 17.

    It would also seem fairly intuitive to assume that consanguinity rules apply regardless of the genders of the partners, at least until the issue if further litigated, if anyone wishes to do so. (The question might be whether consanguinity prohibitions are based only on genetic issues relating to the harmful effects of inbreeding, or reflect other societal values applying equally to same-sex marriages.)

  • 84. Margo Schulter  |  May 16, 2014 at 10:49 am

    Rather humorously at a certain level — although not so much for the children and other people being harmed — the standard for a stay seems to be simply “reasonable judicial doubt,” the idea that since Windsor reserved the issue of state marriage bans, there might be some colorable argument to support them.

  • 85. Margo Schulter  |  May 16, 2014 at 10:52 am

    StraightDave, your logic is very persuasive — and that was the part of the filing where I got the idea of an agenda other than just outlining the questions that would be helpful to clarify under the new marriage equality system.

  • 86. Margo Schulter  |  May 16, 2014 at 10:56 am

    Ah, the proverbial shotgun wedding — which a lot of defenders of “tradition” who write about “unplanned procreation” seem rather enamored with. I must admit that under simple rational basis, maturation rates might be enough to justify the disparity between 16 and 17. But under “exceedingly persuasive justification,” I’d ask if the State might not, for example, set the age at 17 in a gender-neutral fashion, and allow an exception where a child has been born or is expected.

  • 87. Margo Schulter  |  May 16, 2014 at 10:59 am

    Of course, part of this nicely fits the label suggested in earlier threads of “massive resistance,” as with Brown v. Board of Education in the 1950’s. One blog, from Arkansas I think, compared it to George Wallace standing in that school door.

  • 88. Margo Schulter  |  May 16, 2014 at 11:21 am

    Bruno71, some of Maggie Gallagher’s recent words about marriage equality being inevitable in all 50 States seem, by comparison to NOM in Oregon, for example, almost like General Lee’s discussions around the time of Appomatox with his colleagues where he saw no point in “bushwacking” (continued Confederate warfare of an irregular or guerrilla nature), and said that it was time to make peace.

  • 89. Michael Grabow  |  May 16, 2014 at 11:28 am

    Man, I was really thinking that Judge McShane was going to issue his ruling very quickly.

    We've gotten pretty spoiled with the speed of these cases…

  • 90. M.-  |  May 16, 2014 at 12:24 pm

    Mee too, Michael. I feel deeply deeply DEEPLY disappointed with this guy (the Judge). He's already heard oral arguments on the merits and he gave the NOM the opportunity to have its day in court as well (even tough they presented an untimely motion). He's had more than 15-20 days to think, write and issue his final opinion. Whatever the result, he should be thinking -and caring- on the anxiety being now suffered by both parties. I may sound kinda rude, but it's hard to believe he's gay..he's not showing any sort of empathy to people like him.

  • 91. Ragavendran  |  May 16, 2014 at 12:39 pm

    I understand your frustration, and I partly share your disappointment, but I think your accusation goes too far. Come on, give him a break. He did the right thing denying NOM's motion to intervene, and I'm sure he's working extra hard on a winning opinion that he wants to make sure is perfect and thorough, as his being gay and raising a child with his partner seems to raise issues of his credibility among the anti-gay. I would assume that he also has to issue a thorough written version of his oral order denying NOM's intervention. If you feel the need to channel your frustration, I'd respectfully ask you to divert it to the 9th Circuit on their delay in Sevcik a case they explicitly said they'll expedite. Or the District Court of Utah, where Judge Kimball, more than two months ago, heard arguments on a preliminary injunction to force Utah to recognize valid same sex marriages performed during the short window it was legal and he has still not issued a ruling. Or the 5th Circuit, which gave a late April deadline for the State of Texas to respond to the Plaintiffs' motion to expedite the appeal and the State has still not filed a response, with what appears to be no rebuke/reprimand from the Court. I could go on… but you get the idea. Sorry if I come across as a little rude, but I really think, all things considered, McShane is doing his best to get a ruling out soon.

  • 92. M.-  |  May 16, 2014 at 1:12 pm

    Hi Ragavendran. I respectfully disagree with you. First of all I must remark that I ALSO feel frustrated with the 9th Circuit about their lack of action in Sevick, with Judge Kimball in Utah, and with the 5th Circuit; and even more, I also add that Pennsylvania federal Judge who heards arguments long ago and hasn't issue an opinion yet (not Judge McLaughin, the other one whose name I don't remember). But, of course, all this stuff doesn't anul or cancel my frustration with Judge McShane, on the contrary, that's what make me "put him on the same bag".
    Secondly, you mentioned that he also has to prepare the written version of his oral motion denying NOM's intervention. Of course I follow you, but we all know that that kind of motions are shorter. Appart from that, if he's already made a ruling from the bench, we can all bet he has a clear idea of the resons to that decision. We must note, too, that he has clerks and people who can work and write for him.
    Finally, you stated that, as a gay man he's probalby writing on opinion that shows the world that even as a gay man he can be an impartial judge in this topic. Well, I don't agree with that at all, instead of his OWN reputation he should think on real, concrete people suffering for his lack of action. I insist: it's not only against him as an individual, it's again the lack of justice in general. The only thing that makes me remark his actions is that he knows first-hand the problems gay or lesbian copuples are now having.

    PS: I'm a Spanish speaker so I apoligize for any grammar or spelling mistake you may find while reading my comments.

  • 93. Ragavendran  |  May 16, 2014 at 1:18 pm

    I would only respond to one of your criticisms – in taking the time to prepare a thorough judgment that is undeniably impartial, he is thinking of the people – a stronger opinion is harder to challenge and argue against, not just for his reputation, but also in terms of the merits he lays down granting the requested relief for the people that he is concerned about.

    And I understand your complaint about the speed of justice only too well. I come from India, and to me, even the Ninth Circuit seems like an express justice system!

    In recent news, apparently, Judge McShane has said that he will issue a ruling Monday noon. Is that enough for you? 🙂

  • 94. M.-  |  May 16, 2014 at 1:27 pm

    Ragavendran, of course if agree with you that a solid, well-written and stronger opinion is a probably-winning one. And all of us -the ones in favour of marriage equality- want to have that sort of opinions. That's why I took your own words and divided or separeted two different things: taking to time to wirte a winning, strong opinion AND thinking on keeping clean his OWN reputation. Of course I understand the former: every Judge should seriosly prepary and analize what they're writing. But to to try and keep a "good reputation" should never be a valid reason for a delayed Justice (I'm not saying it for McShane, I include every single public employee).
    Hopefully, maybe we have a written ruling on Monday 🙂
    Thanks very much,


  • 95. Ragavendran  |  May 16, 2014 at 8:37 pm

    Sorry, I didn't mean legally challenge/argue. I meant publicly.

  • 96. ebohlman  |  May 18, 2014 at 5:08 pm

    A strong opinion will get cited in other cases.

  • 97. sam  |  May 16, 2014 at 12:44 pm

    He is likely all too well aware that he needs to be seen as impartial, he'll probably take his time.

  • 98. Bruno71  |  May 16, 2014 at 12:50 pm

    To those bigots, there's no way a gay person can rule on a gay marriage case impartially. Period. No point in kowtowing to them.

  • 99. sam  |  May 16, 2014 at 1:01 pm

    It's not them he's concerned about, but wider public/professional opinion. Of course NOM are loons who will call him an activist at the top of their lungs, he knows they will, he just won't want to give them extra ammo.

  • 100. Bruno71  |  May 16, 2014 at 1:14 pm

    But the point is, they'll do it regardless, and if even less far right people want to believe his sexuality has something to do with his rationale, there's very little he can do about it. Of course, as with any judge, he should carefully consider the case before him and write a well-thought-out judgment. But if any delays are caused by others' "perception," he'd be failing the public. I'm not saying he's doing that, though, but if he were hypothetically, it'd be wrong.

  • 101. M.-  |  May 16, 2014 at 1:29 pm

    Thanks very much Bruno, you could perfectly explain why I couldn't because of my English limitations! 🙂

  • 102. davep  |  May 16, 2014 at 12:45 pm

    I had similar feelings while waiting for the original Prop 8 ruling to be announced – 'what's taking this guy so long? This should be a slam dunk, and he of all people should know this!'.

    But while we all want each of these decisions to be released quickly, it's very important that they each be done thoroughly, and with air-tight, well-articulated rulings that comprehensively address every single issue and take the opportunity to document every aspect of how the decision was reached. This makes each ruling a more valuable asset that helps lead to additional concurring decisions.

  • 103. Michael Grabow  |  May 16, 2014 at 11:38 am

    I've fallen behind on everyone's comments during all of the back and forth in AR, but this is the first I've seen that the ruling applies to all of the counties in the state.

    "Just one day after the Arkansas Supreme Court declared Circuit Court Judge Chris Piazza's ruling striking down the state's constitutional and statutory bans on same-sex marriage incomplete and therefore unenforceable, Piazza has clarified that clerks in all 75 Arkansas counties may issue marriage licenses to same-sex couples, according to BuzzFeed's Chris Geidner. "

    I do notice it says "may issue marriage licenses" though…

  • 104. LK2014  |  May 16, 2014 at 11:48 am

    Oh, good lord … a separate request for a Stay in Arkansas has been submitted by Clerks in several counties (White, Washington, Lonoke, and Conway) with a list of ridiculous questions they say must be clarified and therefore supply additional reasons for a stay … for example, can an uncle marry his nephew? I kid you not:

  • 105. Bruno71  |  May 16, 2014 at 11:50 am

    "can an uncle marry his nephew?" That may be more of an issue in Arkansas than in most other states. But seriously, this kind of thing won't help them much in the long run.

  • 106. Ragavendran  |  May 16, 2014 at 11:51 am

    See grod's and Eric's comment threads above for more discussion on this.

  • 107. Randolph Finder  |  May 16, 2014 at 12:05 pm

    That is actually of interest to me. I believe that courts have generally agreed with marriage laws limiting those of close biological relationship from marrying each other, but in states where Marriage Equality has come, the question as to whether the close biological relationship should limit SSM has been decided differently. (An uncle and nephew can't have childen descended from each of them.)

  • 108. SeattleRobin  |  May 16, 2014 at 12:37 pm

    What do you mean decided differently? Are you saying some states with marriage equality are allowing close relatives to marry as long as they are the same sex? I would think wed have heard a whole lot of screaming if that were true.

  • 109. Randolph Finder  |  May 16, 2014 at 1:57 pm

    It is true in Massachusetts. Two brothers can marry in Massachusetts.
    Massachusetts never updated its consanguity laws. ( . Maryland did update their laws, (

  • 110. SeattleRobin  |  May 16, 2014 at 9:40 pm

    Not getting around to changing the gender-specific wording of a law on the books is a far cry from *deciding* that something is allowed. Do you have any sources that indicate that close relatives are actually allowed to marry in Massachusetts?

  • 111. Steve  |  May 16, 2014 at 12:06 pm

    Expect more of this insanity when marriage equality comes to the deep south. They did the same stuff after segregation and anti-miscegenation laws were struck down. Just put up roadblocks whereever they could.

  • 112. Rose  |  May 16, 2014 at 12:22 pm

    I mean if the section says "ALL" males 17 and older and "ALL" females…….then yes let two 17 old males marry and 2 16 year old young ladies marry!!!

    All this is is ANOTHER stall tactic and NOTHING else!!!

  • 113. Rose  |  May 16, 2014 at 12:37 pm

    Did the County Clerks have a brain fart? If the law says that EVERY male who is 17 years old can marry then it should NOT matter their sexual orientation, the same would apply to the females.

    As for marrying one's relative…….I have NEVER known an Uncle to want to marry his niece or nephew and allowing Gay and Lesbian ADULTS to marry WON'T change this provision!!!

    Has common sense left these folks?

  • 114. Texas Rex  |  May 16, 2014 at 1:02 pm

    It sounds like the difference in age argument is a new way of asking the ridiculous question Bonnie Bedelia poses in Sordid Lives: "Are you the man, or the woman?" (i.e., " which one of you is the 'girl'?")

  • 115. bayareajohn  |  May 16, 2014 at 1:27 pm

    Not so ridiculous. Just because you haven't heard of it you presume it can't happen?

    I do think the infinite corner cases need not be presorted for the mainstream to begin.

    There are going to be some odd cases… such as marriage to one's adopted child. Gays used to occasionally adopt their lover in order to make a legal property right, health care access/visitation, etc. Some of those will want to convert to marriages. Tangled.

    But states have frequently eased the consanguinity restrictions on marriage of relatives when there was no chance of conception. So that line of reasoning is already explored and used… applying the point of the restriction instead of the ICK. There will be more of that.

    And the corner cases need not be resolved in the hypothetical before marriages begin.

  • 116. Margo Schulter  |  May 16, 2014 at 12:09 pm

    Ragavendran, I may be reading a PDF version of the same argument against a stay, and it’s interesting that Arkansas follows criteria substantially similar to federal law.

  • 117. ScottinPhilly  |  May 16, 2014 at 12:19 pm

    Plaintiff Response:

  • 118. DrHeimlich  |  May 16, 2014 at 1:34 pm

    This response seems to crib heavily from the Idaho response to the Ninth Circuit. But that's fine by me. That was a solid argument that made excellent points.

  • 119. Margo Schulter  |  May 16, 2014 at 12:29 pm

    Rose, I agree that “stall tactic” says it all. These concerns might be handy checklist for a legislative cleanup of the Arkansas marriage statutes — but it’s totally irrelevant for couples both age 18 or over and not within the prohibited degrees of consanguinity! It does feel a bit like voter registration in Alabama in 1965.

  • 120. Margo Schulter  |  May 16, 2014 at 12:31 pm

    The plaintiffs are putting a lot of emphasis on New Jersey, where a stay was denied, basically because the States have no interest in even “temporarily” enforcing unconstitutional laws!

  • 121. Margo Schulter  |  May 16, 2014 at 12:39 pm

    Rose at 51. (a ways back), maybe the exception to the rule for mostly repetitious briefs defending these marriage bans is Kentucky’s birth[rate]r argument that the “economic” interests of the State are served by couples who can “naturally procreate.” So the birthers and birthraters may be about in the same league.

  • 122. Margo Schulter  |  May 16, 2014 at 12:44 pm

    As to Judge McShane in Oregon, maybe he’s waiting on the Ninth Circuit to sustain his ruling against NOM as an intervenor, and then expeditiously release his decision, giving the parties certainty and finality (since no one who has Article III standing wants to appeal). He might be cautious, but he may simply want to let any complications play out first.

  • 123. Margo Schulter  |  May 16, 2014 at 12:49 pm

    On lesson I’m learning here is to hit refresh early and often. But lots of the briefs for the State DOMA’s suggest that some people haven’t hit refresh since Baker v. Nelson. 🙂

  • 124. Margo Schulter  |  May 16, 2014 at 12:53 pm

    The thing that I keep reminding myself is that the Arkansas clerks raising these age and consanguinity issues are asking for a stay, not an advisory opinion from the Attorney General or consideration by the Legislature of some fine points of the law. That’s when it becomes both absurd and outrageous.

  • 125. TKinSC  |  May 16, 2014 at 12:56 pm

    Let's try to get this thread to 100 comments so they collapse and then we have to open each reply with no default option to keep them open. Wow, what a design.

  • 126. Bruno71  |  May 16, 2014 at 1:05 pm

    You can actually write a post with more than four words?

  • 127. FYoung  |  May 16, 2014 at 1:31 pm

    TKinSC, I have a better idea. Let's you and your impersonators stop commenting completely so message threads don't get overloaded with troll comments.

  • 128. Dr. Z  |  May 17, 2014 at 8:48 am

    You could make that happen by going away yourself. TKinSC is only here because you are here.

  • 129. Dr. Z  |  May 16, 2014 at 12:57 pm

    Breakng, the ruling will be announced this afternoon in Oregon

  • 130. Kevin  |  May 16, 2014 at 12:58 pm

    Link me plz

  • 131. Dr. Z  |  May 16, 2014 at 1:00 pm

    Whoops sorry misread the text msg, that will be Monday afternoon

  • 132. Ragavendran  |  May 16, 2014 at 1:01 pm

    What text message? Did Judge McShane text you? Just Kidding… Is this some automatic case update subscription system – how can I sign up?

  • 133. Dr. Z  |  May 16, 2014 at 1:04 pm

    From Basic Rights Oregon:

    BREAKING NEWS: Judge Michael McShane intends to issue his marriage equality ruling on Monday at noon. Reply STOP to quit, HELP for info. Msg&DataRatesMayApply

  • 134. Michael Grabow  |  May 16, 2014 at 1:06 pm

    Yes, text LOVE to 877877

  • 135. Ragavendran  |  May 16, 2014 at 1:12 pm


  • 136. Seth from Maryland  |  May 16, 2014 at 1:24 pm

    sweet,sweet,sweet, most likely the entire west coast will be covered in blue this monday ,

  • 137. Randolph Finder  |  May 16, 2014 at 1:59 pm

    Jeesh, Wikipedia makes one map color choice and suddenly everyone is using it. 🙂 🙂 🙂

  • 138. ebohlman  |  May 17, 2014 at 8:42 pm

    Wikipedia uses black for full marriage rights, dark blue for civil unions, light blue for limited domestic partnerships.

  • 139. FYoung  |  May 18, 2014 at 3:19 am

    Navy might look like black on some monitors, but it looks bluish when enlarged.

    As shown in its source code, Wikipedia's map uses the colors #002255 for marriage equality, #0066ff for civil unions and #00ccff for limited/enumerated privileges.

    These are not true named web colors, but I would say they are closest to navy, blue and aqua.

  • 140. M.-  |  May 16, 2014 at 1:20 pm

    Thank u so much Michael! ¡Viva la Justicia! Good luck guys -and girls he-!

  • 141. StraightDave  |  May 16, 2014 at 1:16 pm

    I believe the state asked for 24 hrs notice so they could get their shit together. 72 is plenty 🙂

  • 142. Mike in Baltimore  |  May 16, 2014 at 3:40 pm

    Courts are normally not open on Saturdays and Sundays, so the judge gave the state, in effect, 24 hours notice.

  • 143. Margo Schulter  |  May 16, 2014 at 1:04 pm

    Bruno71, there’s a certain ugliness to some of the reactions to marriage equality decisions that the orientation of Judge Walker or Judge McShane might simply exacerbate a bit. For example, after the Ninth Circuit moved quickly after Hollingsworth v. Perry to reinstate Judge Walker’s decision, there was a statement from ProtectMarriage that marriages were happening in California “because enemies of the people have abused their power to manipulate the system and render the people voiceless.”

    “Enemies of the people” is a bit much, both some of NOM’s language about Oregon Attorney General Ellen Rosenblum, as well as Judge McShane, gets uncomfortably close to that. Judge McShane himself noted NOM’s allegation of “collusion” between the parties as “unprofessional.”

  • 144. Margo Schulter  |  May 16, 2014 at 1:22 pm

    Just a quick note that I’ve read about things “collapsing” at 100 comments, but see no change in my elinks browser: each of the 104 comments so far is fully listed, just as before. Also, I’d guess that on other browsers there might be some linking of comments where one is a reply to another; I just see them listed in order.

    But one point about the Arkansas statutes is that this isn’t criminal law, where strict construction and the rule of lenity are appropriate: the is law about who may enter a contract. So seeking out a reasonable interpretation, not necessarily the most restrictive, is a good policy, and the clerks can seek guidance from the Attorney General or others.

  • 145. JakeAZ  |  May 16, 2014 at 1:25 pm

    So … did the plaintiffs meet the deadline?? (1:25 pm Arizona time. that is PDT here)

  • 146. JakeAZ  |  May 17, 2014 at 7:48 am

    Would it have not offended your nit-picking sensibilities if I had written "1:25 pm Arizona time, which because AZ does not need to save any daylight this time of year, is the same time as PDT. That is, 1:25 pm in Phoenix is exactly the same time as 1:25 pm in San Francisco."? So I took a short cut. And I am getting as tired of you as is everybody else.

  • 147. Mike in Baltimore  |  May 18, 2014 at 5:20 pm

    For several decades, Indiana was split into Eastern and Central time zones (it still is, but that is a different story). The Eastern time zone Indiana counties, for the most part, did NOT adjust their clocks when the rest of the nation changed it's clocks for daylight and standard time. Those counties in the Central time zone DID change their clocks.

    Thus (except in the extreme SE part of the state, aka 'the Cincinnati area') the entire state was on the same time while the nation observed Daylight Saving Time (DST), It was common for people to say 'Indiana time' since ALL states (OH, MI, IL and KY) surrounding the state observed DST throughout the state.

  • 148. Margo Schulter  |  May 16, 2014 at 1:28 pm

    One thing I might guess about Judge McShane is that he may want to write a very well-organized and persuasive opinion because, even though there will be no appeal, his reasoning could be used by other courts, as has the reasoning of Judge Walker (there, of course, the full trial was also a factor).

    From the oral argument, and Judge McShane’s special interest in the relationship between due process and equal protection, I wonder if he might be exploring new ways of integrating these approaches. Judge Dale’s opinion in Idaho was really impressive, and his on Monday may be also.

  • 149. Margo Schulter  |  May 16, 2014 at 1:38 pm

    Eric, I agree: consanguinity, or numbers for the people who like to raise polygamy issues, are not suspect or quasi-suspect categories, so simple rational-basis review would apply

  • 150. Margo Schulter  |  May 16, 2014 at 1:45 pm

    Eric, for an interesting possible exception, Leviticus 18:18 (prohibing an arrangement where one man marries two sisters, as happened with Jacob, Leah, and Rachel in Genesis 29-30), where the idea might be that two sisters have a right to their special kinship relationship, uncomplicated by the likely rivalries of this kind of marriage. So there genetics may not be the main factor — but I’m not sure how it might apply to the situations we’re discussing.

  • 151. Margo Schulter  |  May 16, 2014 at 1:51 pm

    Evidently the Arkansas Supreme Court ruling is due at 4:30 local time.

  • 152. Guest  |  May 16, 2014 at 1:55 pm

    Arkansas Supreme Court to rule on motion for stay today at 4:30 CDT

  • 153. Ragavendran  |  May 16, 2014 at 2:05 pm

    Oh good – I'm hitting refresh on this website every minute for the next 25 minutes:

  • 154. Rose  |  May 16, 2014 at 2:10 pm

    The the ruling should be coming down shortly, right?

  • 155. Bruno71  |  May 16, 2014 at 2:13 pm

    In 15 minutes.

  • 156. Rose  |  May 16, 2014 at 2:15 pm

    Great, at least if it goes our way……but news either direction!!!

  • 157. Seth from Maryland  |  May 16, 2014 at 2:19 pm

    it would be nice if they said no stay ,but speed up hearing the case cause we all know they will take it

  • 158. Ragavendran  |  May 16, 2014 at 2:23 pm

    Plaintiffs' response was submitted at 1:30. So they had less than three hours to write their opinion? Maybe they already made up their mind and the response was just a formality? That scares me…

  • 159. Bruno71  |  May 16, 2014 at 2:23 pm

    It only takes like 10 seconds to write "request denied" 🙂

  • 160. Jesse  |  May 16, 2014 at 4:21 pm

    Looks like the stay was granted…

  • 161. Ragavendran  |  May 16, 2014 at 2:31 pm

    Late. Maybe it's an oral decision and not ECF?

  • 162. JWinKY  |  May 16, 2014 at 2:22 pm

    Hopefully the SCOAR will rule it is a violation of the AR Constitution, mooting any Federal Question of constitutionality. Then the SCOAR can deny a stay without being concerned with Federal stays in place in the various Federal Appeals Courts. AR would be on the same footing as MA, NM and NJ; ruling on their own constitution without interference from the SCOTUS. And I think the SCOTUS would be happy to not have *another* case to review.

  • 163. LK2014  |  May 16, 2014 at 2:25 pm

    That would be wonderful.

  • 164. Margo Schulter  |  May 16, 2014 at 2:05 pm

    Randolph Finder, thanks for those very interesting links! If Massachusetts has gotten through a decade, then so can Arkansas, however the Legislature ultimately chooses to refine the marriage statutes.

  • 165. Margo Schulter  |  May 16, 2014 at 2:14 pm

    Yes, Rose, within 15 minutes or so (2:30 Pacific time). The Arkansas Times site may have it quickly.

  • 166. Margo Schulter  |  May 16, 2014 at 2:23 pm

    With Massachusetts in 2003-2004, an argument for the six-month implementation period was the novelty of the situation, and also a question that was also raised in California in early 2009 after Prop 8 passed: how about getting the state out of the marriage business (with its religious associations for some people) and having civil unions for all? The Massachusetts Supreme Judicial Court indicated that civil unions for all might be acceptable, but not a separate status for same sex couples.

    Of course, federal benefits and Windsor make that very unlikely, unless federal law were to change and recognize domestic partnerships or civil unions as equivalent for all purposes to marriage.

  • 167. Margo Schulter  |  May 16, 2014 at 2:27 pm

    What a commentator at Arkansas Times suggests, and I agree, is that if the Court grants a stay, it should include language making clear that it’s not judging the merits. Of course, it would be great if they deny the stay.

  • 168. Ragavendran  |  May 16, 2014 at 2:33 pm


  • 169. Bruno71  |  May 16, 2014 at 2:34 pm

    Bummer. Oh well, guys, onwards they go.

  • 170. Biff  |  May 16, 2014 at 2:34 pm

    So what's next?

  • 171. davep  |  May 16, 2014 at 2:42 pm

    What's next is good news from Oregon on Monday. Arkansas will continue its journey through the courts and will ultimately lead to these marriages resuming there.

  • 172. JakeAZ  |  May 16, 2014 at 2:50 pm

    Basic question here: to whom do the plaintiffs appeal? to a state Appellate Court or the AR Supreme Court directly?

  • 173. Big Rick  |  May 16, 2014 at 2:56 pm

    The plaintiffs don't appeal. The lower court judge ruled in their favor. The state and some county clerks have appealed, and the Arkansas Supreme Court must now decide whether to hear the appeal. They will, of course.

  • 174. davep  |  May 16, 2014 at 2:59 pm

    I believe they MUST hear the appeal, right? It is only SCOTUS that can decide which appeals to hear or not hear. Bu they must decide based on only the existing evidence from the trial, and the plaintiffs have a very, very strong position.

  • 175. Kevin  |  May 16, 2014 at 3:16 pm

    The Arkansas Supreme Court may decline to review the case.

  • 176. Big Rick  |  May 16, 2014 at 3:26 pm

    I think they'll review the case. But what happens if they decline to review it? Does the stay expire and the ruling go into effect? Or do they have other options open to them (I suspect they do), such as directing the intermediate court of appeals to review it?

  • 177. Big Rick  |  May 16, 2014 at 3:17 pm

    I don't know, Dave. I believe the Supreme Court in some states operates on a discretionary basis. I don't know about Arkansas. My understanding is that Arkansas has a Court of Appeals, which the defendants bypassed in going straight to the Arkansas Supreme Court. But the fact that they granted a stay suggests they are going to hear the appeal.

  • 178. LK2014  |  May 16, 2014 at 2:34 pm


  • 179. LK2014  |  May 16, 2014 at 2:35 pm

    There is NOT ONE good reason for this.

  • 180. Ragavendran  |  May 16, 2014 at 2:42 pm

    Here's the flowery legalese that should be on top of that order:

  • 181. Ragavendran  |  May 16, 2014 at 2:35 pm


  • 182. Biff  |  May 16, 2014 at 2:36 pm

    Appeals court next or State Supreme Court to resolve?

  • 183. Ragavendran  |  May 16, 2014 at 2:39 pm

    I think the Arkansas Supreme Court will take up the appeal. No word on whether it will expedite it. The Court takes a summer recess, so unless they decide to expedite it, it may take up to a year or more to decide.

  • 184. Biff  |  May 16, 2014 at 2:43 pm

    Ok – we'll move onto focusing on the next one then. Any idea what the time frame is for a permanent stay on ID in the 9th.

  • 185. Ragavendran  |  May 16, 2014 at 2:46 pm

    Nope. It's the 9th, after all. Idaho hasn't filed a reply to the Plaintiffs' response, so maybe they're waiting for that – I'm not aware of any deadline on that either.

  • 186. Pat  |  May 16, 2014 at 3:48 pm

    OMG, another year??? Jeeez 🙁

  • 187. GilpS  |  May 16, 2014 at 5:10 pm

    And of course once again they applied the new stay rule: "if it's gay, there's a stay!"

    Although it could be said they could have done it last Monday morning so at least they allowed it to stand for 5 days.

    Reading the motions for stay, the reasoning is ludicrous … And our brief was very strong, similar to the Idaho case. Still, I'm puzzled as to why the courts seem absolutely terrified of letting the decisions stand, when they know we will win in the end. It's absolutely irritating.

    And worst they don't explain the reasoning which is also in my opinion a show of cowardice in their part.

  • 188. Big Rick  |  May 16, 2014 at 5:35 pm

    It's disheartening that the Arkansas Supreme Court granted the stay. Maybe they know something we don't.

  • 189. peterplumber  |  May 16, 2014 at 5:40 pm

    In every event thus far, the stay has been granted. Although it is dissapointing, do not be disheartened. We will prevail in the end.

  • 190. nightshayde  |  May 16, 2014 at 5:41 pm

    I think they know they don't want to be seen as supporting marriage equality (even if it IS the right thing to do) before any of their seats are up for re-election in November.

  • 191. Seth from Maryland  |  May 16, 2014 at 6:17 pm

    their worried about the election, so they ruled this way for now for polical reasons ,but though ii hate the stay i got a good feeling they will strike down the amd when the next term , this one most Liberal courts in the entire nation and porbally the most liberal in the South

  • 192. Margo Schulter  |  May 16, 2014 at 2:39 pm

    The Arkansas Times story suggests that a decision in the Arkansas Supreme Court might not happen until at least November or December, given a two-month summer recess, and pointed to the possible factor of elections in November.

  • 193. Margo Schulter  |  May 16, 2014 at 2:51 pm

    Biff, from the Arkansas Times story, I get that the Arkansas Supreme Court itself is the appellate tribunal, and will need to review Judge Piazza’s findings of unconstitutionality under both the Arkansas Constitution and the federal Constitution.

    On the Arkansas Constitution, that Court is the final authority. If it agrees with Judge Piazza, and specifies that it’s ruling of unconstitutionality under state law is independent of federal law, then that is the final word. The Court could also address the federal claims, but that wouldn’t change the holding, and so SCOTUS couldn’t review, since it doesn’t write “advisory opinions.”

    If it holds that Amendment 83 is consistent with the Declaration of Rights in Article 2, which may not be amended through the usual process (see Article 2, Section 29), then a decision on the federal claims for or against constitutionality under the Fourteenth Amendment could be appealed to the federal courts.

    And, under Michigan v. Long (1983), if the Court finds Amendment 83 invalid under both State and federal Constitutions, but doesn’t clearly declare that the state grounds are independent of federal law, then SCOTUS could still review the case, since if the Arkansas Court were relying at least in part on federal law and got it wrong, then that could change the result.

  • 194. LK2014  |  May 16, 2014 at 2:53 pm

    Well, I'm glad I live in New Jersey where the NJ Supreme Court had the wisdom NOT to stay a Superior Court Judge's decision, and our Governor – for whatever reason (upcoming election) – chose to drop his appeal.

    The endless stays are torture.

  • 195. Duster  |  May 16, 2014 at 3:00 pm

    ah well, tonight’s mood music will be Cristina Perri’s A Thousand Years in a candle lit room.
    And perhaps a slap of white powder for extravagance. A thousand years waiting for equality 🙁

  • 196. Margo Schulter  |  May 16, 2014 at 2:57 pm

    LK2014, I agree; and the New Jersey Supreme Court has been getting some well-deserved emphasis in the filings against these very questionable stays.

  • 197. Margo Schulter  |  May 16, 2014 at 3:03 pm

    Yes, Oregon brightens things up and keeps us going — the whole Pacific coast! As M.- says, !Viva la Justicia!

    And those 500+ Arkansas couples add to the momentum, even as they endure this gratuitous delay and underscore Justice Kennedy’s words in Windsor about human and famlly dignity. I wonder if Attorney General Holder will announce federal recognition of their marriages.

  • 198. JayJonson  |  May 16, 2014 at 3:04 pm

    The stay is a one-sentence order that gives no guidance at all and no promise of expediting the appeal. Apparently, the Arkansas Supreme Court takes a two month vacation. And an election for two seats is upcoming. It could well be that same-sex marriage becomes a campaign issue in that election. Alas.

  • 199. davep  |  May 16, 2014 at 3:11 pm

    Even if that is the case, in the big picture, justice and equality still prevail. Whether that is through a succession of small steps that all move forward, or whether it involves a step back at an appeals level which results in a post-Windsor circuit split and forces a big step forward at SCOTUS sooner rather than later, there is no stopping this progress.

  • 200. JayJonson  |  May 16, 2014 at 3:51 pm

    Intellectually, I agree with you. But oh how impatient I have become. We have waited so long. The lack of urgency on the part of many of these "justices" is dismaying.

  • 201. KarlS  |  May 16, 2014 at 5:53 pm

    I will bet a hundred bucks against a cold cup of coffee they expend more energy trying to figure out how to piss off the least number of people than on the real issue of fairness and freedom.

  • 202. Rose  |  May 16, 2014 at 3:10 pm

    More Bull Shiet….that's all I've got to say!!!

  • 203. steven  |  May 16, 2014 at 4:29 pm

    It's not bs jmo. Its normal process for appeal. Good steps at a time. With history of Arkansas Supreme Court decisions on gay adoptions I believe they will rule on marriage equality side. And plus I believe the court didn't wanted to overturned by the SCOTUS about the stay.

  • 204. STEVEN  |  May 16, 2014 at 4:30 pm

    Be overturned

  • 205. Margo Schulter  |  May 16, 2014 at 3:14 pm

    davep, I’m not famiiar with the Arkansas system, but it seems implicit in the reports that I’ve read that this is an appeal to the Arkansas Supreme Court which is going to be heard and decided, however many months it takes.

    Various State Supreme Courts may have discretionary categories of review where, like SCOTUS, they can choose to hear the case or not.

  • 206. Margo Schulter  |  May 16, 2014 at 3:33 pm

    In the cases striking down the state sodomy laws, and a provision barring adoption by people involved in nonmarital cohabilitation (including same-sex couples, given the marriage ban), the case got appealed directly from the trial court to the Arkansas Supreme Court.

    More generally, the Arkansas Court of Appeal is the forum for usual appeals, with discretionary review by the Arkansas Supreme Court (somewhat analogous to cert for SCOTUS), but with certain types of cases appealable directly to the Supreme Court. Death penalty cases are one such category, and cases requiring “interpretation or construction” of the Arkansas Constitution, as here. The Encyclopedia of Arkansas is my source,

  • 207. Margo Schulter  |  May 16, 2014 at 3:38 pm

    Arkansas Supreme Court Rules 1-2 determine the respective jurisdictions of this court and the Court of Appeals, and it seems to follow what I’d guess is a fairly common pattern. For more or less routine litigation, the Court of Appeals carries the main burden. But when policy issues arise that involve both the State Constitution and a major impact on the entire State, then having an appeal directly to the Supreme Court serves judicial economy.

  • 208. Margo Schulter  |  May 16, 2014 at 3:43 pm

    From the very collegial oral argument in Oregon on April 23, I’d guess that Judge McShane and Attorney General Rosenblum should be able to negotiate the process of implementing marriage equality about as well as any jurisdiction could do it.

  • 209. Corey from Maryland  |  May 16, 2014 at 3:47 pm

    On the bright side for the 450 couples who were married in Arkansas, Eric Holder will decree that the marriages will recognized by the federal government for the sake of federal benefits even if the state benefits are in limbo.

  • 210. Michael Grabow  |  May 16, 2014 at 4:18 pm

    That has already been announced?

  • 211. Corey from Maryland  |  May 16, 2014 at 5:57 pm

    Not yet, Michael but he will certainly do it like he has several times before….

  • 212. grod  |  May 16, 2014 at 3:51 pm

    Rose, because of screw-up by the state, more than by Judge Piazza, over 500 marriage licenses were issued. Those who wanted to take advantage of that window were given until 4:30 this afternoon to do so. I seriously concluded that when the court changed the end-time for submissions from Monday to this afternoon, they were under the political gun to act.

  • 213. Rose  |  May 16, 2014 at 4:31 pm

    But why should Gay and Lesbian have to RUSH in order to beat some possible stay when there was NO reason given……..if we have guidelines, then why NOT follow them?

  • 214. Guest  |  May 16, 2014 at 4:59 pm

    It is very common for courts to grant temporary orders without explanation, but, I agree, it's very frustrating for those of us seeking equality now!

  • 215. Michael Grabow  |  May 16, 2014 at 4:19 pm

    I want a two month vacation.

  • 216. davep  |  May 16, 2014 at 4:38 pm

    Indeed. The comment about the Justices getting a two month summer vacation gave me a mental image of a bunch of judges in black robes, giggling and stumbling around on a tropical beach somewhere, slurping on drinks served in coconuts…

  • 217. Ragavendran  |  May 16, 2014 at 7:04 pm

    Get elected to the Arkansas Supreme Court!

  • 218. Margo Schulter  |  May 16, 2014 at 5:01 pm

    steven, you raise an interesting question: could or would SCOTUS have stayed a state court order if the Arkansas Supreme Court hypothetically had declined to do so, and when the decision rested, however independently or otherwise, at least partly on state constitutional grounds?

    From the point of view of comity, the deference that federal courts owe to state courts, why intervene at such an early point? In a situation like Idaho, it’s true that a federal court is overturning a state statute, however clearly correct the decision of what remains an open question of law after Windsor.

    But in Arkansas, it’s the State’s High Court. Why not let them review the case, write their decision, and then decide, if they affirm Judge Piazza on the Arkansas Constitution, whether the case could or should be reviewed under Michigan v. Long.

    State policy and politics, as has been suggested, are a likely explanation. It could be a judgment that before overturning a state constitutional amemdnent as inconsistent with another part of the Constitution or with the federal Fourteenth Amendment, they needed to hear the case and make a considered decision.

  • 219. Margo Schulter  |  May 16, 2014 at 5:10 pm

    From the perspective of the couples who married in Arkansas, planned to in the next days and weeks, or want to have their out-of-state marriages recognized, its very frustrating, and we should be kvetching about this early and often.

    However, tomorrow will mark the 10th anniversary of the implementation of marriage equality in Massachusetts, and the 60th anniversary of Brown v. Board of Education (I was 3 years old when it was decided). Who would have expected that we’d have ~500 marriages in Arkansas less than a year after Windsor, even ones in limbo for the moment — and likely with full federal benefits?

  • 220. Margo Schulter  |  May 16, 2014 at 5:19 pm

    At least with Oregon, “Gay means stay” gets decisively trumped by “No Article III standing, no appeal — and therefore no stay.”

  • 221. Seth from Maryland  |  May 16, 2014 at 7:07 pm


    Conservative Arkansas lawmakers tried to pass a resolution proposed by state Senator Jason Rapert today urging the Supreme Court to uphold the state's ban on gay marriage. It failed, the AP reports:

    RapertA non-binding resolution objecting to a judge's decision striking down the ban failed before the Arkansas Legislative Council on a procedural vote Friday. The resolution would have urged justices to overturn Pulaski County Circuit Judge Chris Piazza's ruling striking down all measures preventing gay couples from marrying.

    The Arkansas Times has more:

    A motion to suspend the rules was necessary for consideration of the resolution because it wasn't filed with adequate notice before the meeting. That required a two-thirds vote. Rep. Greg Leding asked for a roll call. The two-thirds vote failed on the Senate side, with 8-6 in favor, but short of the two-thirds (10) necessary. The House contingent voted heavily for consideration, 19-5. By the roll calls, the resolution would have passed had it been considered.

    Then the debate became whether a two-thirds vote of all voting was needed or two-thirds from both the House and Senate delegations. Chair John Edwards, after the division was illustrated, declared the rules suspension had failed.

    Rapert argued there should have been an overall roll call vote on the resolution. Edwards gaveled the meeting to a close. Edwards is a term-limited Democrat from one of Little Rock's most liberal districts.

    The resolution "is without legal meaning, but it has served its purpose of sending a message of legislative displeasure" to the state Supreme Court, which is considering the appeal of the ruling striking down the ban.

    The measure will likely pass when a rules suspension is not necessary.

  • 222. Ragavendran  |  May 16, 2014 at 8:18 pm

    Plaintiffs in the Austin case turn out to be straight BFFs!

  • 223. Pat  |  May 16, 2014 at 10:56 pm

    Wow this is actually pretty remarkable. I love this:
    " When his father found out about the case, McNosky told him the truth, but his father didn’t believe him, having often wondered if he was gay because he rarely had a girlfriend. Finally, he said **he just told his father he was gay to make things easier**. He later wanted to come forward with the truth because **he was tired of pretending to be gay**."

  • 224. davep  |  May 16, 2014 at 11:36 pm

    That particular part of the article sounds like something from The Onion…..

  • 225. Ragavendran  |  May 16, 2014 at 8:25 pm

    Idaho Governor and AG have both filed their replies to the Plaintiffs' response for their emergency motion to stay. This completes briefing. It's just a matter of time before the Ninth Circuit rules. But by now, we know what the outcome is going to be, anyway!

    Governor's Reply in Appeal 14-35420
    AG's Reply in Appeal 14-35421

    Again, I don't understand why the Governor and AG are independently appealing, resulting in two appellate cases. Don't they get along or something?

  • 226. SeattleRobin  |  May 17, 2014 at 2:48 am

    I got the impression that they couldn't agree on the exact approach to use, so wanted to be able to present their arguments separately. In the original case, that is. So are just continuing on separately.

  • 227. Ragavendran  |  May 17, 2014 at 6:15 am

    Ugh. Double the waste of tax payers dollars.

  • 228. Ragavendran  |  May 16, 2014 at 8:26 pm

    Transcript of Wednesday's Oregon hearing where NOM was put in its place:

  • 229. SeattleRobin  |  May 16, 2014 at 10:04 pm

    Thanks for posting this! I've been dying to know what actually went on in the hearing and none of the news reports I read were any help, only reporting the results.

  • 230. SeattleRobin  |  May 16, 2014 at 11:18 pm

    Now that I've read the transcript it's interesting to see that NOM was offered opportunity to protect the privacy of their members, under seal, etc., yet still refused to divulge their identities to the court. McShane refers to them as "phantoms" two or three times. But the best part, which made me literally LOL, was when McShane said, "This case is not about who gets to eat cake."

  • 231. Ragavendran  |  May 16, 2014 at 11:37 pm

    And the back and forth (page 28) on the unprofessional word choice of "collusion" was very tense. I could smell the tension on my laptop! I'm pretty sure at that point, any little chance NOM had for permissive/discretionary intervention was wiped out. And Chickadonz – I love that name 🙂 In the end though, Judge McShane told Mr. Eastman that he was a smart guy. I don't know what to make of that comment.

  • 232. SeattleRobin  |  May 17, 2014 at 2:54 am

    Oh yeah. The judge's displeasure leapt off the page over the collusion thing. Which goes to show, it's never a good idea to piss of a judge by suggesting they or other parties are being unprofessional. (I'm sure the whole sniffing around recusal bit added in to his reaction too.)

  • 233. Tim  |  May 17, 2014 at 12:25 pm

    I read the transcript. Here is the comment Ragavendran refers to that Judge McShane made:

    Mr. Eastman, I do appreciate your arguments. I appreciate your briefing. You are a smart guy, and I — you know, Thank you.

    I think he was being kind and acknowledging the efforts made. It was a bit of Northwest Nice (look it up). That's it.

    The transcript seems to support the way people think he'll rule Monday.

  • 234. Zack12  |  May 17, 2014 at 3:23 am

    They refused to provide their names because they don't have anyone to represent.
    It was an obvious stalling tactic and I'm glad McShane called them out.

  • 235. Ragavendran  |  May 16, 2014 at 9:00 pm

    This takes the cake for most entertaining video of the week!

  • 236. Rose  |  May 16, 2014 at 10:50 pm

    So, I've been thinking about this ALL afternoon…..why bother asking for summary Judgments, trials or ANYTHING else if the higher Courts are just going to grant a Stay for NO flipping reason?

    Why have guidelines to decide whether a stay is warranted if they will NOT be followed? If I DIDN'T follow the driving laws of the State in which I am driving, do you NOT think for once minute I WOULDN'T face some penalty for my actions? The why NOT make the Justices face some penalties when they DON'T do their jobs according to the guidelines set……I mean so far every case has been stayed pending appeal, YET NONE of been stayed because the loser has ACTUALLY shown some evidence of ANYTHING!!

    This is like the Prop 8 crap ALL over again……….it took ANOTHER 3 years after Judge Walker's ruling to FINALLY pull Prop 8 off of life support…..will Gays and Lesbians have to wait ANOTHER 3 years to FINALLY have that elusive FUNDAMENTAL right known as MARRIAGE? I sure the hell hope NOT!!!

  • 237. Dann  |  May 16, 2014 at 11:33 pm

    Rose, I share your frustration. I'm not quite sure what to make of all this BS but I do know one thing, we will win soon. If it's one thing I've learned through all this is patients. At times I get angry, upset and just as frustrated as you but it doesn't last long. I see a light at the end of the tunnel and we're approaching it very fast.

    I've learned so much from all of you and you've given me so much hope. Thanks and we're almost there.

  • 238. Rose  |  May 17, 2014 at 7:16 am

    Thanks Dann, I do believe we will prevail and win the "WAR" with regards to this issue and we have made tremendous strides in the years since my wife and I got married in 2008, but still these unnecessary stays just get me a bit irritated and especially when NO reason is given……maybe if some reason for the stays were given, even a lie…..I might feel differently, but ALL of these stays and delays just continue to show me that the ONLY reason is due to ANIMUS towards folks, MOST don't even know!!!

    I mean if they want it left to the "WILL" of the voters, then let's put the right to marry for EVERYONE to a vote, that includes Gays, Lesbians and straights…..but they DON'T really want that, they just want to vote on OUR right to marry……and that to me clearly shows just how much they HATE us!!!

    Again, thank you for your comment and thoughts…….I do appreciate them more than you will ever know:-)

  • 239. Steve  |  May 17, 2014 at 7:28 am

    Tip: Ditch the random and unnecessary capitalization. Makes your rants much easier to read

  • 240. Rose  |  May 17, 2014 at 8:15 am

    Nope, my way of emphasizing my point……don't like it, simply don't read it!

  • 241. Guest  |  May 17, 2014 at 10:27 am

    Actually i agree. It's quite painful to read…

  • 242. Rose  |  May 17, 2014 at 10:39 am

    Then simply DON'T read…..problem solved:-)

  • 243. Josh  |  May 17, 2014 at 7:47 am

    I have the same frustration about these senseless stays. Based on the supposed reasons for a stay, none of these should qualify. No one will be harmed if there is no stay and the state is not likely to win the appeal. No matter how convincing the rulings are they are ignored by the higher court and they get stayed. So annoying.

  • 244. Craig  |  May 17, 2014 at 10:15 am

    I think that there is an unwritten policy of staying until SCOTUS either takes a case or alternatively denies cert. I am therefore reconciled for all people to issue stays because no-one wants to be overturned by SCOTUS. This is understandable when you think the stakes are so high. From now on I am not holding out any hopes about stays. As far as I am concerned everything will be stayed until SCOTUS says otherwise. On the other hand when that moment comes either there will be a 50 state ruling in any case or denial of cert will unleash all these stayed rulings. Either way is good but I just think everything will be stayed until SCOTUS decides otherwise.

  • 245. Big Rick  |  May 17, 2014 at 12:12 pm

    "I am therefore reconciled for all people to issue stays because no-one wants to be overturned by SCOTUS."

    That suggests to me that few lower court judges and none of the appeals court judges have balls. They should be more concerned with weighing requests for a stay using well-established standard procedures so they can do the right thing.

  • 246. Craig  |  May 17, 2014 at 1:35 pm

    I think everything will be stayed until at least the Utah case is out of the 10th Circuit. Hopefully they will uphold the ruling and allow the stay at that stage to expire. At this stage SCOTUS will reveal their hand. If they again stay until appealed to SCOTUS then that is that and we await a SCOTUS ruling. If not then marriage equality comes to Utah and, logically the stays will fall away – possibly after Circuit rulings.

    Really it is in the hands of SCOTUS as to how they are guiding this process. It is very frustrating but each district court win helps elucidate the arguments and creates a strong consensus.

    But for my own sanity I am assuming a stay for all future cases (it will be great to be surprised however if the rule breaks down but I don't think it will). Still looking forwards to Oregon and have high hopes that no-one will have standing to appeal and marriages can start straight away. That will be wonderful. Of course it's terrible for people in the stayed states – justice delayed is justice denied. In any case there soon won't be many states left without rulings and we've already started on the Circuit hearings.

  • 247. DrPatrick1  |  May 17, 2014 at 7:08 pm

    I agree, I think no stays should be granted, and if SCOTUS FEELS COMPELLED TO GRANT THE STAY, LET THEM DO IT, oops caps is having problems

  • 248. Tim  |  May 16, 2014 at 11:26 pm

    Utah adoptions halted for now per state supreme court:

  • 249. JayJonson  |  May 17, 2014 at 7:07 am

    These people have no decency.

  • 250. Steve  |  May 17, 2014 at 7:27 am

    They're Mormons after all

  • 251. Rose  |  May 17, 2014 at 7:18 am

    Just MORE BS!!!

  • 252. Lymis  |  May 17, 2014 at 7:36 am

    That's simply vile.

    When it comes down to it, the parents' names on a birth certificate aren't state-vetted DNA records and they are not a recognition of any relationship whatsoever between the parents. They are a statement that, at birth, these are the people with legal parental rights regarding the child.

    There's no inherent need for a state-recognized marriage to recognize that two people have or accept legal parental responsibilities for a child. If the state wants to add some sort of non-marital affidavit that both people must sign agreeing that they both have those rights, that is one of the things that a legal marriage makes unnecessary, fine, but putting marriages on hold shouldn't affect birth certificates or adoptions at all.

  • 253. DrPatrick1  |  May 17, 2014 at 8:14 am

    It is a common belief, but nonetheless a myth, that birth certificates or the presumption of paternity have anything to do with biological ties. As you said, a birth certificate establishes parental responsibilities towards a child. Although it can later be amended, the official state records will forever include the original, unlamented certificate. Therefore, getting it right the first time is important.

    The assumption of paternity afforded to a marriage has nothing to do with genetics. In our history, illegitimacy was a huge stigma for children. Without DNA, children could be disinherited if someone could prove to a judge the child was illegitimate. The child in question might have actually been genetically related, but if a judge agreed there was some evidence to think otherwise, he could rule however he wanted. To protect the child, at least in case of marriage, there was a presumption of paternity, thus the child was a product of the marriage unless proven otherwise. This protected children born to a mother while the father was away for years fighting in wars. He was still the presumed parent.

    GLBT families would be equally protected by this law. Children are presumed to be the legal offspring of the marriage unless proven otherwise. This legal offspring has nothing to do with genetic offspring.

    Because these myths are commonly believed, we have to battle these myths in trying to establish our rights.

  • 254. JakeAZ  |  May 17, 2014 at 7:57 am

    Sorry to be a Danny-Downer here, but does anyone besides me see our momentum starting to fail? Monkey wrenches here and there, such as delays while the constitution of the AR Supreme Court is changing with new elections, the inevitable foot-dragging on the part of the 9th Circuit, and nothing good to foresee coming out of the 8th or the 5th.

    I paraphrase a bit from the Religionists' Hol(e)y Book (Mark 8:36): What shall it profit a [community] to win Oregon and lose the whole damn rest of the country once the SCOTUS can pick the case in their next session that they want to rule against us on?

  • 255. DrPatrick1  |  May 17, 2014 at 8:18 am

    We have remained undefeated since last year. The district courts are numerous, and can seem to function much faster. The next level is the appeals courts, and while a little slower, their rulings have broader impact. All agree a national answer will require a SCOTUS decision, and the whole process takes years. It is not fair that this process takes so long, BUT, with patience, equality will be the law of the land

  • 256. JakeAZ  |  May 17, 2014 at 8:31 am

    I understand the process. I am thinking about noticing, as is often done in athletic games, when some intangible thing called "the momentum" changes from one team to another. The score may be the same (We up, They down) but there often is that intangible (visceral, psychological?) for want of a better word "sensation" that things are turning around another way, and even if some corrective actions are taken, the other team sustains the momentum and wins the game.

    Felt the same way after Lawrence v Texas, BTW when I foresaw and forefelt that other states and courts would recognize/facilitate gay people's inclusion into marriage. That began to happen, then has taken up remarkable speed to lead to many successes. I don't leave out the possibility that the slowness of the appeals process compared to the speed of the District Courts' decisions could be what I notice and the slower momentum is an artifact. Does the slower pace of the federal appellate process change the game? Basketball analogy — quick-game team vs slow-game team changes something about the mental aspect of the game. Carrying this further, often one works against the other quite well, till an adjustment is made, and sometimes it can't be made.

    I suppose a momentum-turner index for me would be the 9th FINALLY getting off its collective butt and deciding something already!!

  • 257. Dr. Z  |  May 17, 2014 at 9:09 am

    Wrong analogy. We are winning decisively and events are swiftly moving to endgame. The stays and so forth are delaying tactics pursued by the losing side when they no longer have any real hope of victory. The antis can no longer prevent the inevitable SSM nationwide; they can only try to delay it. And even then their local delaying actions are increasing pressure on SCOTUS to take a case this next 2014-2015 term and resolve the issue once and for all. We have an unbroken string of lower court victories so far that is going to have the effect of preparing the way for a SCOTUS ruling legalizing SSM nationwide. And public opinion is changing rapidly; for the first time in the history of the gay rights movement, we are making significant progress without experiencing a backlash. Our opponents are trying to forment a backlash but this time they're getting no traction.

    The tide has finally turned, 45 years after Stonewall.

  • 258. AndyInCA  |  May 17, 2014 at 9:14 am

    You get an Amen for that, Dr. Z!

  • 259. Rose  |  May 17, 2014 at 8:20 am

    I DON'T believe we are losing momentum, but I do see it being delayed a bit more until 2016 when SCOTUS will eventually rule in our favor……..but between now and then, we will probably see this back and forth garbage going on!

    Like the Texas Supreme Court tossing the Districts Judge ruling regarding divorce and other cases, my guess is that all of these issues truly will show the specific animus towards a minority group based totally on MORAL DISAPPROVAL!

  • 260. JayJonson  |  May 17, 2014 at 9:35 am

    The problem is not that our momentum is failing, but that the American justice system is absurdly and tediously slow, with many opportunities to thwart justice rather than to advance it. That is deeply frustrating.

    I think there is no question that we have won the war for marriage equality in terms of turning the tide of national opinion. However, there remain deep pockets of opposition.

    Moreover, our success depends on a single vote in the Supreme Court. Should Justices Ginsburg, Kennedy, Breyer, Kagan, or Sotomayor decide to retire and are replaced by a conservative justice, we will be waiting a very long time before marriage equality is achieved nation-wide. Our opponents on the Court are not acting out of principle, but out of animus and they will not be persuaded by legal arguments.

    We must make certain that a Democrat is elected President in 2016. Despite our great advances, they remain precarious in a country that is deeply divided and where people with little real interest in justice mindlessly repeat the motto "freedom and justice for all" even as they they work to deny equal rights.

    I realize that some of greatest champions on the Court, such as Harry Blackmun, John Paul Stevens, and Anthony Kennedy were appointed by Republican presidents, but that was when the country was less polarized and the rights of gay people had not become a litmus test for confirmation.

  • 261. Mike in Baltimore  |  May 17, 2014 at 5:40 pm

    The Presidential election in 2016 is important to help make sure we get an opportunity for a Liberal Justice to be nominated, but remember that the Senate must confirm that nominee. If people skip the 2014 election, that just makes it a LOT easier for the GOTP to stop any Liberal nominees, since people skipping the 2014 elections makes it that much easier for the GOTP to win the majority of seats in the Senate.

    If there are vacancies on SCOTUS in the near future, does anyone think people like Teddy Cruz, Randy Paul, Chuckie Grassley, etc. will make it easy for President Obama to nominate a non-Conservative Justice?

  • 262. Tim  |  May 17, 2014 at 10:16 am

    No, I don't see the momentum changing. It's been consistent at the district and appellant level. I thought the decision coming out of Idaho (in the 9th) was remarkably fast, and I think I read it was the fastest ME decision to date. The Nevada case has had its idiosyncrasies all along from it being tangled with HI, to the heightened scrutiny piece, and, in the future, to the defenders likely not having standing to appeal the the SC.

    But I'll let you know if I see the momentum changing.

  • 263. davep  |  May 17, 2014 at 5:11 pm

    Hi JakeAZ, I'm not a mind reader, but I wonder if perhaps you are focusing on frustration of the two recent stays rather than looking at the whole picture. As the two doctors said, we are not just winning, but our rate of progress is still accelerating. We are getting rulings that these marriage bans are unconstitutional at an increasingly rapid pace. So many new cases have been filed in recent months that there are now only TWO STATES that don't have cases in the works. Yes, the stays are aggravating, especially since the decisions to grant them fly in the face of the process by which stays are typically granted, but this is not slowing our momentum.

    We are now at the ten year anniversary of same sex couples being able to legally marry in this country.

    Think about the amount of progress in the first nine years.

    Now take a look at the progress just in the last year.

  • 264. Dr. Z  |  May 17, 2014 at 8:59 am

    I have a proposal for how to deal with the trolls here. If the EoT admins don't have the time and/or interest in monitoring these discussions, then one or more of the frequent posters should be given admin rights to perform that service. Spread the responsibility out and give this community the tools to police the threads themselves. There would need to be a consensus on what constitutes trolling – it's not merely expressing a contrary POV. It is a repeated pattern of off-topic, or inflammatory, or abusive postings. We can do this ourselves.

  • 265. JayJonson  |  May 17, 2014 at 9:21 am

    Excellent suggestion. They are ruining what is a very valuable resource.

  • 266. Pat  |  May 17, 2014 at 10:34 am

    Agreed! At least let us agree to totally ignore this troll who has been derailing comment threads lately. He already writes many comments and if 3 or more people reply to each of
    his comments, then it's easy to see why the comment threads are getting so long and messy!

  • 267. Michael Grabow  |  May 17, 2014 at 1:42 pm

    This might be the best idea. Completely ignoring them. No responses, no down voting, nothing. Eventually they'll have to get bored and move on.

  • 268. Dr. Z  |  May 18, 2014 at 1:11 am

    I don't think that approach is going to be practical here. A lawyer has to be able to argue positions that she or he does not personally agree with. One of the best ways of ensuring that you have a solid case is to debate with an adversary. Therefore, just because someone argues against SSM here does not automatically make them a troll, provided that they are making an argument based in the law. That's why we can't simply ignore the antis who post here.

    What makes a poster a troll is intent. A troll isn't advancing a legal argument against SSM – that should be allowed as long. A troll seeks to disrupt this community and interfere with the free exchange of legal commentary. That must not be permitted to continue. This forum is unique on the internet for its focus and level of expertise. It should be protected against attempts to destabilize and disrupt it.

    We need not fear legal arguments against SSM though, since the whole point of the law is for human society to be governed by reason rather than emotion.

  • 269. Dr. Z  |  May 18, 2014 at 1:17 am

    Just to complete the thought, those who are engaging in trolling behavior should receive a public warning that they must advance a legal argument or else they will be banned from this site.

  • 270. Pat  |  May 18, 2014 at 1:55 am

    I respectfully disagree. As mentioned before (I believe by Eric) there are lots and lots of other websites where people engage into pointless squabbles and lay out their arguments for or against same-sex marriage. We dont necessarily have to go through that whole debate of whether SSM is good or bad on this site, do we? It was much more interesting to follow when we were considering the timeline of recent cases, trying to interpret the outcome of a hearing, discussing the likelihood of each justice voting for or against SSM, reading and commenting on legal documents, etc.
    Now, finding these interesting comments amid all the comments used to try and reason with a homophobic bigot has become very difficult and cumbersome.
    Let's PLEASE try and keep some discipline and totally ignore these comments. He if the jerk wont go away, it will make his commets far easier to skip.

  • 271. Dr. Z  |  May 18, 2014 at 7:16 am

    You miss my point. The purpose of this site isn't to debate whether SSM is good or bad. It is to follow the legal debates establishing whether the bans on SSM are unconstitutional. Not the same thing. To follow those debates it is helpful to fully understand the arguments of both sides, and their nuances.

  • 272. Guest  |  May 18, 2014 at 7:35 am

    Maybe, but I suppose most of us would gladly do without the "nuances" of TKinSC's "arguments".

  • 273. Dr. Z  |  May 18, 2014 at 7:50 am

    If the purpose of moderation is to banish dissent rather than combat disruption, then this community will fall victim to exactly what KarlS is warning of. We would need to be quite clear from the outset that we were not moderating the group to banish dissent. That is a sure path to stifling free debate even among supporters of ME, for it would only be a matter of time until we started turning on each other (I notice someone has started downvoting my posts in this thread, for instance.)

    The purpose of moderation is to prevent disruption, not to make ME supporters feel more comfortable by removing all dissent. That's what NOM does.

  • 274. StraightDave  |  May 18, 2014 at 8:28 am

    That's exactly what our objective should be here and now. The open question is the best way to achieve that. As several members have noted, a total non-response to trolls is clearly part of the solution. That's something we can all do right now.

    Will it be sufficient? Won't know until we try. I have noticed a lessening of response in the past couple days, which has helped a little bit. I, among others, have an instinctive reaction to "correct the record" lest some other reader gets persuaded by the nonsense. But we're in a special place here, not in a courtroom or on Meet The Press or Crossfire. We needn't fear that some random BS in this forum has any influence in the real world.
    Let it go. Please.

  • 275. Michael Grabow  |  May 18, 2014 at 8:28 am

    I suppose I can't speak for everyone, but the "guest" above is referring to one specific person and that's who I am talking about (and I thought this was pretty much all about).

    I don't see this slippery slope you are referring to becoming a reality by banning that person and people who show themselves to be nothing but the same.

  • 276. Michael Grabow  |  May 18, 2014 at 8:24 am

    I didn't say anything about ignoring people making actual arguments and contributing something legitimate. We're talking about people who come here for the sole reason of annoying everyone else.

  • 277. Ragavendran  |  May 17, 2014 at 11:19 am

    I totally agree. We need to form a small judiciary of our own. Elect a group of five, seven, or nine regular and trustworthy participants. When a troll-alert is issued, the nine can vote to decide whether to block it or not.

  • 278. Rose  |  May 17, 2014 at 11:42 am

    I like the idea:-)

  • 279. Big Rick  |  May 17, 2014 at 12:04 pm

    That sounds labor intensive, and slow. At the current trolling rate, you'll be as bogged down as the 9th Circuit is on appeals before long.

    Having 2 or 3 moderators with independent ability to act immediately is more workable.

  • 280. StraightDave  |  May 17, 2014 at 4:58 pm

    So put up some names in nomination for moderators. Someone who isn't so thin-skinned to stomp out all disagreement. You need someone who can recognize genuine trolling and is willing to draw a line. Any decisions should be made public, to maintain transparency and credibility.

  • 281. Ragavendran  |  May 17, 2014 at 10:48 pm

    Well, before proceeding with this, we need some endorsement for this idea from the official admin – Scottie. And whether the intensedebate/wordpress infrastructure supports such comment moderation.

  • 282. Dr. Z  |  May 18, 2014 at 1:23 am

    Well, there is a report button, and the ability to remove abusive posts. Not sure how much more we'd need except EoT's support.

  • 283. KarlS  |  May 17, 2014 at 1:24 pm

    It's a very tempting proposition but the law of unintended consequences often drops its ugly hammer on that kind of moderation. They implemented it over at democraticunderground and it ruined the place…it went from a lively, bright and sometimes a little abrasive forum to a politically-correct oligarchy with a few entrenched perfectionist hidebound microbureaucrats who won't even tolerate the most benign question about the de rigeur positions everyone is forced to adopt. They have chased away all but the most devout adherents to a terribly narrow viewpoint.

  • 284. Zack12  |  May 17, 2014 at 2:13 pm

    I understand what you're saying but at the same time, a troll shouldn't be allowed to monopolize a board either.

  • 285. KarlS  |  May 17, 2014 at 3:41 pm

    No, I certainly agree. One of the hardest things in America to do is defend the First Amendment while someone is abusing it. (It does not really apply, though, in privately owned forums., the folks in charge can allow or deny pretty much anything they want.)

    I often get really exasperated when I see the sort of hypocrisy used to castigate someone like that NBA team owner…threatening to deprive him of his property because he said some offensive things. Sadly we seem to have lost Patrick Henry's admonition "I may disagree with what you are saying but I will defend your right to say it." I don't really want to live in a country where that most honorable position has been flushed down the toilet of political correctness.

  • 286. DrPatrick1  |  May 17, 2014 at 5:56 pm

    The First amendment is rightly limited to the federal government, and the 14th Amendment extends that limitation to the states. The government has no role in limiting the speech of its citizens.

    No one has a right to be free of consequences for their actions. If involved with an organization, you submit yourself to the rules of that organization. Most groups have contractual bylaws which are designed to limit the negative impact on the group of a rogue member. I am not privy to the NBA detailed contracts, but it seems quite likely the team owner is contractually bound not to bring negative controversy to the league.

    As for having a moderated discussion, we all chastise NOM and the like for doing just that. Certainly, a medium which allows the end user to ignore certain commenters would be nice. There is obvious abusive language and creating an unhealthy atmosphere, but that is rare on this site. Far more common are the back and forth comments that serve no usefulness. I admit, I have engaged a troll or two myself.

    I enjoy reading others' perspectives on these cases. It is because this area of law is so unsettled that many disparate people find this interesting. Clearly, the law is on our side, and time will vindicate our position. In the mean time, I do not favor eliminating debate and even heated discussion from this site. But civility should remain a shared goal.

  • 287. KarlS  |  May 17, 2014 at 6:29 pm

    I am always gratified when someone employs 4 paragraphs to agree with me! So thank you very much! 😀

  • 288. Deeelaaach  |  May 18, 2014 at 1:28 am

    This is not a public square TKinSC. For the moment I'll have to assume that you defend the Boy Scouts right as a private entity to control access to their membership, as granted by SCOTUS. Even SCOTUS puts limits on what outsiders can pressure an organization to do (legally, not socially). I'd be happy if you'd disabuse me of my temporary assumption that you defend the Boy Scouts right as a private entity to control access to their membership, the key words being "private" and "controlling access."

    This is the same thing here TKinSC. You post at the administrators pleasure. If they ever decide to prevent you from posting as has (apparently) been done before on rare occasions, then you know you have indeed worn out your welcome. All privately owned boards have the right to administer their own site. This sites administrators are quite tolerant of the few that come along. But given the difficulties you pose for this board (and your apparent public self-adulation as a result), I'm surprised you're still here.

    But you're right, TKinSC, this statement is credited most often and possibly incorrectly to Voltaire instead of Henry. Lets assume for a moment that Voltaire actually did say this. If you do defend the Boy Scouts policies, then you defend any policy of this board which allows them to prevent you from posting. Even if you don't agree with the Boy Scouts, but agree with the SCOTUS rationale in their case (citation unknown), you'd have to defend the policies of this privately owned board. And you don't own this board, nor do I. As an aside, we don't own the NOM board either. I'm sure you'd probably have defended their previous posting policies. No, that's not a question.

    You post here at their pleasure as do I. We are all guests here, nothing more. Since Voltaire could likely never have imagined the internet in his wildest dreams, we will never know if he himself would have applied his statement to this particular situation in regard to privately owned entities. But thanks for trying to speak for him. It speaks volumes about who you are and what your goal is.

  • 289. davep  |  May 18, 2014 at 1:40 pm

    That suggestion about being magnanimous in victory might make some sense if allowing same sex couples to legally marry actually took anything away from those who seek to deny marriage to these couples. But it doesn't. Those people opposed to same sex marriage have lost nothing, and are unaffected by these changes with the exception of feeling a bit frustrated because the people they wish to see pointlessly harmed by unjust laws are no longer being harmed.

    Appeasing the obnoxious petty prejudices of people with irrational anti-gay animosity would not serve any beneficial purpose for anyone.

  • 290. Bruno71  |  May 18, 2014 at 5:01 pm

    And stays are not "victories," just stopgaps.

  • 291. Zack12  |  May 18, 2014 at 2:03 pm

    Sorry, you want us to be treated as second class citizens or enter loveless marriages because of your own personal prejudices.
    I really don't give a crap how reasonable you think your arguments are, you are a bigot, period.

  • 292. FilbertB  |  May 18, 2014 at 12:10 am

    Hi! I agree that there needs to be some common sense monitoring in the discussions. I do not post, but I do read and I appreciate the informed commentary very much. If you receive an up vote it was very likely from me! I think your suggestion on how to deal with a commentator who derails the discussion is a splendid idea. Thank you.

  • 293. FYoung  |  May 18, 2014 at 9:19 am

    Personally, I see no value in having yet another forum to argue whether marriage equality is good or bad. Fortunately, I think we agree that that is not the subject of this site.

    I see the mission of this site to assist in the achievement of marriage equality through the courts, mainly in the USA.

    I mainly see it as a source of timely and accurate information and informed prediction. I also see it as a place to discuss strategy to achieve marriage equality, the strengths and weaknesses of various arguments used in pleadings, and the meaning and effect of new and old cases relevant to marriage equality. Occasional posts about laws and cases outside the USA are okay.

    Argument and dissent about how to achieve marriage equality are okay, provided they are constructively aimed at improving the likelihood of success in the courts and not simply to provoke confrontations and flame wars and increase post counts.

    In my opinion, posts arguing that marriage equality would be bad, and why, are off-topic and should only be tolerated occasionally.

    Personal attacks and insults directed at other posters and deliberate spreading of misinformation are counter-productive and should not be allowed.

    Also, asking questions to which the poster already knows the answer and making the same post repeatedly needlessly clog the system and should not be allowed. Impersonating another poster is also unacceptable.

    I would consider a poster to be a troll if the poster deliberately attempts to disrupt the site in these way.

  • 294. Dr. Z  |  May 18, 2014 at 4:19 pm

    Thanks FYoung, this is a step in the right direction. As you say, this is a site devoted to the achievement of marriage equality in the courts; I agree. If someone is to be banished as a troll we should have a set of guidelines for how that process occurs.

    TKNSC and TKnSC are trolls, but establishing a moderating panel for the group isn't just about making them go away. We need to develop and enforce a consistent set of community-based rules.

    What is trolling?
    1. Engaging in behavior that is deliberately disruptive.
    2. Consistently employing language that is demeaning to LGBT persons. This includes using scare quotes as in gay "marriage."
    3. Arguing that ME is bad, as opposed to arguing whether DOMA laws are constitutional.

    What is not trolling?
    1. Arguing that DOMA laws are constitutional – this should be permitted provided such arguments are grounded in legal case law, and that the poster engages in debate with pro-SSM legal arguments. A person like SHOETHROWER who throws out legal justifications against SSM but refuses to debate opposing points of view is a troll.
    2. Personal disagreements and legitimate differences in perspective.
    3. Flaming. Flaming is strongly discouraged but it is NOT trolling unless the intent is to demean LGBT persons.

    This is meant to be a starting point. It is not a complete list.

  • 295. Dr. Z  |  May 18, 2014 at 4:27 pm

    Here is the trolling policy for SLOG. I think ours should be a little more specific:

    "COMMENT DELETED: Trolling
    We'd rather not moderate your comments, but off-topic, gratuitously inflammatory, threatening, or otherwise inappropriate remarks may be removed, and repeat offenders may be banned from commenting. We never censor comments based on ideology. Thanks to all who add to the conversation."

  • 296. StraightDave  |  May 18, 2014 at 4:28 pm

    trolling #4: Deliberate twisting or obfuscation of the facts to try to make a contrary point, while lacking any true honesty or integrity, aka intellectually dishonest.

  • 297. Dr. Z  |  May 18, 2014 at 9:26 pm

    4. Engaging in sophistry.

  • 298. Nyx  |  May 18, 2014 at 7:07 pm

    Careful what you wish for… for it seems this discussion can easily devolve into something like:

  • 299. Dr. Z  |  May 18, 2014 at 9:34 pm

  • 300. Margo Schulter  |  May 17, 2014 at 3:32 pm

    Rose, I also feel frustration at these stays, even while understanding that our momentum is ongoing and strong! You remind me of two of my closest friends who were married in a wonderful celebration — just before Prop 8 passed. So my warmest wishes to you and your wife as among those wonderful 18,000+ couples.

  • 301. Margo Schulter  |  May 17, 2014 at 3:39 pm

    Ragavendran, thanks for the links to the scribd version of the Oregon oral argument on NOM, which for me was maybe sort of an allegory on the whole frustrating “Gay means stay” thing.

    As it happens, scribd downloading is simply inoperative from my text-based browsers, although they have some Javascript support or emulation: looking at the HTML code showed me that there’s evidently a download button with any text-accessible link. So I wound up doing Google searches for the cached text versions — often one convenient text file, but here lots of partial files, some with a sizable portion of the transcript (up to several pages), and others with only a few lines.

    Eventually I did manage to find and download in text format most if not all of it — great reading. But comparing that to a convenient pdf version is maybe like comparing Justice Ginsburg’s “skim milk marriage” to real marriage equality. An instructive allegory, maybe.

  • 302. Margo Schulter  |  May 17, 2014 at 3:56 pm

    That should be “without any accessible text-based link.” But getting to the oral argument in Judge McShane’s courtroom on May 14, one of the most grimly amusing parts was when John Eastman argued that their anonymous Oregon voter for the marriage ban had suffered a “particularized injury” — unlike the Prop 8 proponents in Hollingsworth — of “vote dilution,” like African-American voters in the South!

    What I also got was the Judge McShane and Eastman felt a certain camaraderie because of coming from similar cultural and legal backgrounds, and being the same or almost the same age. And it was clear that Judge McShane found very distasteful, as has been commented, what he calls the “hyperbole” of the briefing, and especially NOM’s claim of “collusion.” They tried to argue that the term simply meant that the two sides agreed, but he made it very clear that to him it meant active collaboration between the sides, with Eastman’s attempt to interpret the term at some “middle point” (Eastman’s words) quite unacceptable.

  • 303. Margo Schulter  |  May 17, 2014 at 4:11 pm

    JakeAZ, what we may be feeling (it hit me with Idaho and Arkansas, and now the Utah Supreme Court stay on adoptions) are tactical frustrations, even though strategically, we’re evidently doing fine. But, as others have suggested, when the circuits start coming in could be when the tactical situation gets in line with the larger arc of the universe — and Fourteenth Amendment jurisprudence — bending toward justice.

    Either SCOTUS grants cert promptly, or possibly it simply lets some of the circuit rulings for equality go into effect. The Fourth, Sixth, and Tenth Circuits as realms for marriage equality, maybe for a year or so before cert is granted, would permit a bit more “percolation” before a landmark decision, which thus would become largely a ratification of the new status quo. That might mean living with a circuit split in post-Windsor decisions for some months, but with the regimes of marriage equality likely in a majority of circuits sending a message as to what the result will be.

    An interesting question is whether Chief Justice Roberts might ultimately want to be on the right side of history, however cautiously, so that we might have a 6-3 decision (he surprised lots of people on the Affordable Care Act)? Letting the circuit decisions simply go into effect might be a “normalization” strategy, with the final decision maybe around June of 2016.

  • 304. Margo Schulter  |  May 17, 2014 at 4:18 pm

    JakeAZ, the spirit of comity bids me respect however you find it best to describe your State’s time, and it’s fun that for at least part of the year, our watches agree!

    That’s in contrast to the Idaho defenders of the marriage ban, whose citations of Baker v. Nelson suggest that they don’t know what millennium this is.

  • 305. Mike in Baltimore  |  May 17, 2014 at 5:59 pm

    Off topic (especially to the discussion of stay [or not] in Arkansas), and yet still on topic to the site:

    Al Jazeera America is reporting "A decade later, same sex marriage tide has almost completely turned."

    (… )

  • 306. Lainey  |  May 17, 2014 at 7:16 pm

    Sevcik/Nevada: Why wait on this case to see if the heightened scrutiny ruling stands on Abbott? Abbott has said they'd like a rehearing but not on the heightened scrutiny piece. Isn't it ail or nothing? How cold they rehear only part of the case and still have the heightened scrutiny stand? Can the plaintiffs ask that the Sevcik case just move on at this point outside the Abbott case? If it's reheard it could take, many months to resolve. The Sevcik plaintiffs won't have the benefit of heightened scrutiny but they may not need that to win any way (and weren't counting on it when it was filed).

  • 307. SeattleRobin  |  May 18, 2014 at 5:03 am

    I could be off on this, but my understanding is that Abbott has no problem with heightened scrutiny being applied to sexual orientation, so they have not appealed that. Abbott's claim is that level of scrutiny is irrelevant in this case, because they did not discriminate based on sexual orientation. But even that issue is beside the point, because it was judges of the circuit court that made the en banc request, not Abbott. If I have any of that wrong I'm sure someone will correct me.

    As to how it affects Sevcik, I dunno what all goes into that. It may be that plaintiffs don't have any say, it's completely up to the court based on what is best for them to properly decide the case. Maybe plaintiffs feel any delay in favor of a decision using heightened scrutiny is best for them in the long term.

  • 308. Margo Schulter  |  May 17, 2014 at 8:20 pm

    Lainey, since the logic of the SmithKline case is drawn from Windsor as read by the Ninth Circuit, there’s no reason why heightened scrutiny shouldn’t apply to Sevcik or any other marriage ban case. As you note, Abbott itself is happy with that aspect of SmithKline, and is concerned with the specific facts of the case and how jury selection should be conducted in future cases.

    Heightened scrutiny does have its uses, most specifically requiring “exceedingly persuasive” justification for discrimination and ruling out hypothetical or contrived purposes, as opposed to the actual purpose at the time the marriage ban was enacted. Yes, various courts have said that we win even under rational-basis review, but that extra margin of safety doesn’t hurt.

  • 309. Margo Schulter  |  May 18, 2014 at 2:11 am

    Pat, I agree, as a matter of self-moderation and self-discipline, adding that I am quite new to this site and find it invaluable!

    The name “Equality on Trial” implies for me a community focused on marriage equality as our constitutional right and legal goal, and letting us share together the high and low points as the percolation accelerates. It seems to me that we should foster threads and dialogues in keeping with that purpose.

  • 310. Lance  |  May 18, 2014 at 9:02 am

    Where is the source link for this entire direct quote? I did not find it doing a search. Does this poster fabricate things to mislead, and should I just ignore its comments? Or was it a mistaken post since it implies it's a direct quote? (And I don't consider what someone thinks in their mind to be a direct quote.)

    This is what came up when searching for the entire quote, and it seems to support the pro-equality side.

  • 311. bayareajohn  |  May 18, 2014 at 12:41 pm

    You only deliberately presented it as a continuous quote. That's makes it a lie.

  • 312. Lance  |  May 18, 2014 at 12:54 pm

    I see. So your quotes and by extension your posts aren't to be trusted and can be attributed to what you think in your head and not what's in the reality-based world. It seems others realize that too based on the bevy of negative points you're racking up on intensedebate.

  • 313. davep  |  May 18, 2014 at 1:30 pm

    TKNSC repeatedly trots out all of the usual garden variety anti-gay rhetoric that has already repeatedly failed to withstand any logical scrutiny – here, in the courts, and elsewhere. The commenter has either never bothered to get the facts on this issue by paying attention to the merits of the cases and the reasoning behind all of the rulings in our favor, or this person has poor reading comprehension skills and fails to understand the rulings, or, most likely this commenter is just a troll who is here to try to annoy because they know they don't actually have an argument. It is the internet equivalent of a fly buzzing around in front of the TV while you are trying to watch the news. Or a fart in an elevator. Immature, and mildly annoying.

  • 314. Steven  |  May 18, 2014 at 11:10 am

    Please stop lying and spreading rumors. If you want something to say as factual back up with a link…

  • 315. Margo Schulter  |  May 18, 2014 at 11:33 am

    Please let me clear up what’s happening in those quotes in comment 299: The first part is quoted from Judge Piazza’s order denying a stay, issued along with his nunc pro tunc cleanup of his original order to address the statute he missed the first time: “A stay would operate to further damage Arkansas families and deprive them of equal access to the rights associated with marriage status in this state.” The second part is the one-sentence order of the Arkansas Supreme Court, without any explanation (much like the similarly opaque SCOTUS stay in Kitchen.

  • 316. Mike in Baltimore  |  May 18, 2014 at 1:30 pm

    When a person uses ' " ' to begin a section, and ' " ' to end a section, that indicates they are EXACTLY quoting. When a person uses " ' " to begin a section, and " ' " to end a section, that indicates that they are not exactly quoting, but approximately quoting.

    In either case, an elipsis ( … ) is used to indicate the exclusion of a few words that are not important to the point being made, but the exclusion is almost always not of more than a sentence in length, let alone several pages.

    Also, it is usual and customary to direct a person to where each quote can be found, using a page number, link, reference, etc.

    If one is not quoting from the beginning, it is usual and customary to begin the exact or approximate quote with ". . .". If one is not quoting to the punctuation mark, it is usual and customary to end the exact or approximate quote with ". . . ." to indicate missing words.

    If the original does not emphasize words by bolding, capitalizing, italicizing, etc., grammatical rules say the person posting the information indicates such ('Capitalization added; bolding deleted; etc.).

    And the above is not just usual and customary in English gramma', but in almost all written languages.

    Is the above confusing to you? Maybe it's time you actually learned the rules of grammar before continuing to post. That might take a bit of time (several years), however.

  • 317. Zack12  |  May 18, 2014 at 2:36 pm

    All due respect to some of the posters here, if all someone has to offer is anti-gay talking points and adds nothing to the conversation, I don't see what the point of dealing with him or her here is.
    There are plenty of other boards for that.

  • 318. Tawny_Kyler  |  May 18, 2014 at 3:35 pm

    You just replied to one of those people 4 minutes before posting this.

  • 319. Margo Schulter  |  May 18, 2014 at 5:31 pm

    Dr. Z, whether or not flaming also counts as trolling, it does seem categorically prohibited by the Community Guidelines of Equality on Trial (“About” page), item 8. For the sake of civility, I’d support keeping that guideline.

  • 320. Sagesse  |  May 19, 2014 at 6:37 am

    It's 9:35 ET on a Monday morning. The decision in Oregon is due at noon today, which could well lead to same sex couples marrying in Oregon before the end of the day. Four of the last five posts to this board are from TKNSC.

  • 321. Rose  |  May 19, 2014 at 7:17 am

    Folks, take a read of this article…….you might find it entertaining that it was used before the 4th Circuit Court of Appeals as a reason to ban the right to marry for Same-Sex Couples:

  • 322. nirmeister  |  June 18, 2014 at 12:43 pm

    "The state then appealed his final order to the Arkansas Supreme Court, and filed the new request for a stay.
    Presumably, the state supreme court wants to act on the request before next week."

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