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BREAKING: Federal judge strikes down Oregon’s same-sex marriage ban

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UPDATE 3:30PM ET: The judge issued an order along with the opinion, and the order takes effect immediately. There is no stay.

Federal District Court Judge Michael McShane has ruled that Oregon’s same-sex marriage ban violates the Equal Protection Clause of the US Constitution.

The decision is here.

Oregon officials declined to defend the ban, and filed a brief in district court attacking its constitutionality.

Earlier this morning, the National Organization for Marriage (NOM) filed an emergency request in the Ninth Circuit Court of Appeals to halt the district court proceedings in the case. NOM had attempted to intervene to defend the ban in district court, but that request was denied. NOM then appealed the judge’s denial to the Ninth Circuit, and they sought the emergency stay today to prevent the implementation of a decision striking down the ban.

Thanks to Kathleen Perrin for these filings


  • 1. Dr. Z  |  May 19, 2014 at 12:10 pm


  • 2. Bruno71  |  May 19, 2014 at 12:11 pm

    Congrats Dr. Z! And congrats Oregon!

  • 3. Dr. Z  |  May 19, 2014 at 12:22 pm

    We're going to get in touch with the same minister who performed our ceremony 10 years ago and get together in the same elevator lobby of the Multnomah County courthouse parking garage where we so hurriedly got married the first time (ironically, trying to get our paperwork in before a judge stopped the proceedings.) And then we will have our bingo – five consecutive months with a marriage equality anniversary in each month. ♡

  • 4. Dr. Z  |  May 19, 2014 at 1:21 pm

    We are filling out the paperwork. "Previous marital status" throwing us for a loop. Married in Multnomah Co in March 2004, invalidated by Oregon SC in 2005; remarried in Vancouver CA in June 2005, but not recognized by Oregon until October 2013; DP'd by Oregon in Feb 2009. And the answer is…single??

  • 5. Steve  |  May 19, 2014 at 1:24 pm

    If you're married in Canada, aren't you already married now? It's not like a Canadian moving to Oregon has to get married again.

  • 6. Bruno71  |  May 19, 2014 at 1:29 pm

    Yeah. Should be a legal marriage according to Oregon since 2005.

  • 7. Dr. Z  |  May 19, 2014 at 1:39 pm

    Oregon recognized us as an out of state marriage but we are getting married again to get closure for the invalidation of our 2004 marriage – there are many such couples getting remarried today. This is per the advice of the Multnomah Co. Helpers.

    Just got our paperwork, going to have our ceremony as soon as we can get family and friends together.

  • 8. nightshayde  |  May 19, 2014 at 1:58 pm

    Congratulations, Dr. Z!

  • 9. weaverbear  |  May 19, 2014 at 2:06 pm

    all of our best to you and yours from me and mine.

  • 10. LK2014  |  May 19, 2014 at 2:42 pm

    Congratulations! Enjoy this for a long time!

  • 11. davep  |  May 19, 2014 at 12:11 pm


  • 12. Seth from Maryland  |  May 19, 2014 at 12:15 pm

    so Judge McShanne didn't a put a stay in place? just making sure

  • 13. Rose  |  May 19, 2014 at 12:17 pm

    There's NO stay to issue….no body to appeal the ruling!!!

  • 14. AIslander  |  May 19, 2014 at 1:05 pm

    NOM has vowed to also appeal to the Supreme Court, but given SCOTUS recent precedent, I can't imagine they could be granted standing.

  • 15. Lynn E  |  May 19, 2014 at 1:20 pm

    SCOTUS would have a difficult time granting any kind of motion, given their rulings in Hollingsworth and Arizonans for English.

  • 16. Bruno71  |  May 19, 2014 at 1:23 pm

    NOM is appealing their request to intervene at the district court level, not for standing. It would seem absurd for SCOTUS to step in and reverse both the district court and the 9th in denying them this intervenor status, especially after the case has been heard and decided. It would be an outrage, in my opinion. But they'll try.

  • 17. Walter  |  May 19, 2014 at 2:41 pm

    Basically NOM was denied intervention due to a lack of standing.

  • 18. Rose  |  May 19, 2014 at 12:21 pm

    No reason for a Stay….no one to defend it or appeal the ruling!!

  • 19. Scottie Thomaston  |  May 19, 2014 at 12:33 pm

    Just updated the post: he issued an order along with the opinion and the order notes that it takes effect immediately. So, no stay.

  • 20. Scottie Thomaston  |  May 19, 2014 at 12:16 pm

    I haven't even read it yet, reading now.

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

    The Conclusion, in its entirety, is worth reading:

    "I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was' these same objections that led to the passage of Measure 36 in 2004. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but when the United States Supreme Court justified, on the basis of a "millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad … that is so gay."

    It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

    It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

    My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

    Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other… and rise."

  • 22. jdw  |  May 19, 2014 at 12:32 pm


  • 23. Jennifer Goodhue  |  May 19, 2014 at 12:36 pm

    Damn! I meant to upvote your comment and messed up. Sorry!

  • 24. BenjiCA  |  May 19, 2014 at 12:36 pm

    I agree. I just finished reading the entire decision, and am totally struck with his conclusion. The judge acknowledges his past (the "smear the queer"), and as he concludes, "rises" above it to issue his decision in favor of marriage equality. Bravo.

  • 25. Rose  |  May 19, 2014 at 12:17 pm

    Congratulations to the State of Oregon for OFFICIALLY becoming State number 18!!!

  • 26. davep  |  May 19, 2014 at 12:17 pm

    PAge 6 refers to DOMA as the "Defense Against Marriage Act". Technically incorrect, but a rather accurate description of what DOMA really was : )

  • 27. sfbob  |  May 19, 2014 at 12:29 pm

    There's another typo as well…top of page 26.

    "Yet because the state is unable to extend to opposite-gender relationships the full rights, benefits and responsibilities of marriage…" I'm sure Judge McShane intended to say " same-gender relationships" here.

  • 28. Michael Grabow  |  May 19, 2014 at 12:17 pm

    Just a hair under 40% of the population of the US now. Add the seven states under appeal and that comes to over 57% and that's not even considering TN, OH, IN, and KY.

  • 29. Bruno71  |  May 19, 2014 at 12:18 pm

    So when do weddings start?

  • 30. Bruno71  |  May 19, 2014 at 12:21 pm

    Multnomah already issuing licenses! Woohoo!

  • 31. FYoung  |  May 19, 2014 at 12:56 pm

    "Oregon law requires a three-day waiting period between getting a license and getting hitched, but some county clerks have already indicated that they may wave the requirement."

  • 32. Rose  |  May 19, 2014 at 1:03 pm

    As they should……..unless the law is applied evenly to all persons seeking a marriage license!!!

  • 33. Lynn E  |  May 19, 2014 at 1:24 pm

    You can apply for a waiver of the 3 day period. There is a fee, which varies by County.

  • 34. Michael Grabow  |  May 19, 2014 at 1:30 pm

    According to what I've read there are requirements for the waiver…

    "Washington County officials will waive the waiting period, but require applicants to provide a good reason. These can range from an imminent military deployment to someone being so ill they could die before having the chance to see a marriage performed."

  • 35. Dr. Z  |  May 19, 2014 at 1:55 pm

    In Multnomah County, the "good reason" consists of slipping them an extra fiver.

  • 36. Eric  |  May 19, 2014 at 2:06 pm

    Will they honor your waiting period from 2004?

  • 37. LK2014  |  May 19, 2014 at 2:43 pm


  • 38. Big Rick  |  May 19, 2014 at 2:07 pm

    Having been denied marriage under former discriminatory laws or having your previous marriage declared void should be sufficient reason, I would think.

  • 39. LK2014  |  May 19, 2014 at 2:44 pm

    No kidding! Waive away!

  • 40. Dann  |  May 19, 2014 at 12:20 pm

    It's a very happy day!

  • 41. Zack12  |  May 19, 2014 at 12:21 pm

    Congrulations Dr. Z, this has been a long time coming for you.

  • 42. Dr. Z  |  May 19, 2014 at 1:56 pm

    Thank you! 🙂

  • 43. Rose  |  May 19, 2014 at 12:22 pm

    Congratulations to Oregon and to all of the Couples getting married!!!

  • 44. Bruno71  |  May 19, 2014 at 12:22 pm

    Press conference ongoing:

  • 45. Mark D.  |  May 19, 2014 at 12:23 pm

    At the end of the judge's opinion, it reads "ORDER TO FOLLOW". Is a final order required before counties can begin offering marriage licenses to same-sex couples?

  • 46. Scottie Thomaston  |  May 19, 2014 at 12:33 pm

    I just updated the post with the order. It says it takes effect immediately, so there is no stay.

  • 47. SeattleRobin  |  May 19, 2014 at 12:25 pm

    Congratulations to my neighbors to the south!

  • 48. davep  |  May 19, 2014 at 12:30 pm

    There is a WONDERFUL passage on page 23 about those ridiculous 'arguments' about "responsible procreation". Enjoy.

  • 49. AndyinCA  |  May 19, 2014 at 12:35 pm

    McShane ultimately gave us a very tight, somewhat drab ruling: equal protection for sexual orientation with rational basis only (invoking HighTech Gays). No due process, no fundamental right. No gender discrimination, no heightened scrutiny for sexual orientation.

    Nonetheless, his deeply personal reflection in the judgement conclusion more than made up for it.

    Well worth a read!

  • 50. Steve  |  May 19, 2014 at 12:46 pm

    Which is badly reasoned however. HighTech Gays is technically still precedent, but it's based on Bowers and thus bad law. It said that that gays can't be a protected class because being gay is illegal.

  • 51. Robert West  |  May 19, 2014 at 12:48 pm

    He did mention SmithKline in passing, but indicated that SmithKline isn't binding yet because it's not final.

  • 52. JayJonson  |  May 19, 2014 at 1:19 pm

    I agree that Judge McShane's opinion is not the most eloquent of the recent decsions, but his personal references at the end are surprisingly moving, especially the allusion to "smear the queer" and the comment about his son saying "that is so gay" about a sweater.

  • 53. Big Rick  |  May 19, 2014 at 1:32 pm

    Perhaps not eloquent, but certainly colorful with reference to "smear the queer" and "God Hates Fags". And the reference to Tristan and Isolde was quite unexpected. I'll have to think about what he meant there. There are several versions of that story.

  • 54. SeattleRobin  |  May 19, 2014 at 1:39 pm

    There was also the line about a stork's arrival that wouldn't be affected by the married lesbians next door that made me laugh.

  • 55. ragefirewolf  |  May 19, 2014 at 12:38 pm


  • 56. BillinNO  |  May 19, 2014 at 12:39 pm

    Now that's what I call a WIN!

  • 57. Steve  |  May 19, 2014 at 12:43 pm

    This is also a big "fuck you" to Scott Lively 🙂

  • 58. Bruno71  |  May 19, 2014 at 12:53 pm

    This is what a victory looks like NOM. Not a stopgap.

  • 59. Corey from Maryland  |  May 19, 2014 at 12:54 pm

    This is an even bigger "fuck you" to NOM and all their shit…

  • 60. jdw  |  May 19, 2014 at 1:01 pm

    Well, it looks like we West Coasters have run the table:

    Nov-06-2012: Washington via Referendum 74
    Jun-26-2013: California via Perry
    May-19-2014: Oregon via Rummell & West

  • 61. AndyinCA  |  May 19, 2014 at 2:00 pm

    Alaska 2015!!!

  • 62. Jesse  |  May 19, 2014 at 2:26 pm

    Don't forget Hawaii too.

  • 63. davep  |  May 19, 2014 at 2:39 pm

    Hey, you're right, It's definitely west, and it does have a coast, so it counts as 'west coast'.

  • 64. Michael Grabow  |  May 19, 2014 at 1:06 pm

    Any thoughts on which state looks to be coming next?

    Which case in PA was it that the plantiffs and the state both agreed a trial wasn't necessary? Was it Palladino v. Corbett?

    This link shows oral arguments were scheduled for 5/28, but weren't they just held 5/15?

  • 65. FYoung  |  May 19, 2014 at 1:39 pm

    Sadly, it is possible that Oregon will be the last state to allow legally valid same-sex marriages to be performed until June 2015 at the earliest. We could be in for a long, frustrating wait.

    There will certainly be court victories, but I expect they will all be stayed until SCOTUS decides in June 2015 at the earliest.

    As far as I know, the only possible exceptions would be cases where none of the parties appeals, or the case can be decided on the state constitution alone. I don't know if there are any such states left: Kentucky? Virginia? Arizona? Idaho?

    We should also brace ourselves for reverses too, most likely the Fifth Circuit, I would say.

  • 66. Michael Grabow  |  May 19, 2014 at 1:46 pm

    Oh yeah, upcoming court rulings is what I was referring to.

  • 67. FYoung  |  May 19, 2014 at 1:49 pm

    I should add that Pennsylvania might be another state that does not appeal.

    Of course, there could be legislation or constitutional amendments too (e.g. Ohio?).

    So, my earlier post is probably too pessimistic.

  • 68. Thomas  |  May 19, 2014 at 5:09 pm

    PA does have state cases and they could be decided on the state constitution, but state judges are elected so I expect that they will not be decided before the Fall elections. Elected judges unfortunately tend toward cowardice.

  • 69. Zack12  |  May 19, 2014 at 1:50 pm

    I think we are all prepared for that.
    We're also ready for the fact that sooner or later, a circuit will rule against us, possibly even one of the ones we think will go our way, the 4th or the 10th.
    Nothing new though, after Hawaii, it was pretty much given that the rest of the battles would have to be fought in the courts.

  • 70. Bruno71  |  May 19, 2014 at 1:53 pm

    States where it could be decided on the state constitution alone (though some believe it may be possible even in states with amendments): Pennsylvania, Indiana, West Virginia, Wyoming. PA has Health Dept. v. Hanes and Ballen v. Corbett in state court. The others are all in federal court. But even state litigation may take a long time as it winds its way to the respective state supreme court.

    I don't know if there are any states out there where there's a possibility of no one with standing appealing. I don't think there are any at this moment, at any rate.

  • 71. Guest  |  May 19, 2014 at 1:56 pm

    What's the status of pending cases in Wisconsin? Isn't there a hearing scheuled for late summer?
    By the way, a big thank-you to everyone who posts thoughtful and informative information here. I'm learning a lot, thanks to this site.

  • 72. Bruno71  |  May 19, 2014 at 2:01 pm

    Here you go:…. Some states like Wisconsin and Arkansas have cases in state court as well, though those states have constitutional amendments.

  • 73. tbpitt  |  May 19, 2014 at 1:55 pm

    It was Whitewood v. Wolf. Palladino was recognition of outside marriages and had a trial.

  • 74. ebohlman  |  May 19, 2014 at 8:36 pm

    A hearing, not a trial; it's a summary judgment case.

  • 75. Stefan  |  May 19, 2014 at 7:49 pm

    Here are my predictions based on what I've read (I'm talking about states which will be added to the list before the Supreme Court rules for nationwide equality in June of 2015):

    -All of the remaining states in the 9th Circuit (Alaska, Montana, Idaho, Nevada, Arizona, Guam, and the North Mariana Islands): The en banc consideration of SmithKline will be wrapping up this week, which should set the stage for oral arguments to be scheduled in the Sevik case. Since no one with standing to appeal is defending Nevada's ban, the case will end when the 9th rules in our favor.

    -Pennsylvania: Summary judgment motions are underway in the federal cases, and while Corbett is still defending the ban, it's been more of a non-defense really. There is even speculation that he may drop the defense altogether following a ruling in our favor. In addition, the case regarding the issuing of marriage licenses by a county clerk has reached the state Supreme Court, and while it doesn't directly address the constitutional questions of the freedom to marry, several of the couples he issued licenses to filed a powerful brief with the court urging them to strike down the ban (apparently this court had ruled on issues beyond those presented to them before).

    Arkansas: Marriages were legal in the state for one week before the state supreme court stayed the district judge's ruling, but with all things considering, they are poised to hear the case this fall and issue a ruling by year's end.

    Wyoming: The state's main LGBT rights organization has begun a campaign with the goal to pass a same-sex marriage bill in the legislature this coming session. While bills in the past have failed, they have made it a bit further along each time. Republican Governor Mike Mead has said he personally opposes same-sex marriage, but he may very well sign it if it affords sufficient religious exemptions. Also, a case will soon be heard in state district court.

  • 76. Margo Schulter  |  May 19, 2014 at 1:16 pm

    davep, I agree that this is a wonderful decision, and will quote the passage from page 23 I suspect you have in mind: “A couple who has had an unplanned child has, by definition, given little thought to the outcome of their actions. The fact that their lesbian neighbors got married in the month prior to conception seems of little import to the stork that is flying their way.”

  • 77. Margo Schulter  |  May 19, 2014 at 1:21 pm

    A tiny proofreading and pedantic quibble, p. 23: “Nothing in this court’s opinion today will effect the miracle of birth, accidental or otherwise.” Obviously affect was intended. But, indeed, McShane has by his judicial midwifery helped to “effect” (i.e. bring about) the birth of marriage equality in Oregon.

  • 78. davep  |  May 19, 2014 at 1:22 pm

    Any confirmation that couples are actually getting married right now in Oregon? There's a comment above that Oregon has a 3-day waiting period after you apply, but that this may be waived…

    The live news feed just had shots of people milling around and you couldn't clearly tell if marriages were actually being performed. I've checked for news updates but so far nothing seems to clearly answer this…..

  • 79. Seth from Maryland  |  May 19, 2014 at 1:23 pm

    yes i saw a photo of a coupe with a marriage license

  • 80. Michael Grabow  |  May 19, 2014 at 1:30 pm

    See my response above.

  • 81. Bruno71  |  May 19, 2014 at 1:31 pm

    Well, one thing I've discovered is that marriage licenses are meted out at the Multnomah County Building, which is not anywhere near a courthouse. So it's basically about getting the licenses and doing weddings whenever they can I guess?

  • 82. Stephen Abel  |  May 19, 2014 at 1:34 pm

    Definitely getting licenses in Multnomah county. The county is charging $5 to waive the 3-day waiting period. Folks were getting married in the lobby after getting their license. Others are heading to the Melody Ballroom for ceremonies until 10pm tonight. Great day!

  • 83. Margo Schulter  |  May 19, 2014 at 1:24 pm

    Judge McShane’s holding that gender discrimination doesn’t apply may be a caution for us to show explicitly and in more detail how lots of the proposed “purposes” of these bans in fact do implicate gender stereotypes, so that intermediate scrutiny becomes appropriate on that classic basis. Personally, I find the Loving analogy compelling, but laying out the explicit or implicit gender stereotypes involved may be good for future arguments.

  • 84. Margo Schulter  |  May 19, 2014 at 1:27 pm

    One person to whom Judge McShane’s ruling is a tribute is Oregon Attorney General Ellen Rosenblum, whose detailed briefing about how Oregon’s domestic partnership and adoption laws undermined any conceivable rational basis for the marriage ban, and how denial of marriage caused lots of complications both for the couples and for the State of Oregon, clearly informed the decision.

  • 85. Duster  |  May 19, 2014 at 1:32 pm

    A photo of Judge McShane, his partner and their two sons.

  • 86. Ryan K.  |  May 19, 2014 at 3:54 pm

    That is just an awesome picture. Thank you for posting it.

  • 87. Stephen Abel  |  May 19, 2014 at 1:32 pm

    Took my family to the Multnomah County Bldg to celebrate in advance of the ruling. Was there when the ruling came down and one set of plaintiffs got their license and got married. Handed out bubbles and just enjoyed the fact of equality coming to Oregon. It has been a dark time since Measure 36. The sun is out and love wins the day. So happy my wife and kids could share the historic day.

  • 88. Margo Schulter  |  May 19, 2014 at 1:32 pm

    Judge McShane’s decision to use rational basis review may in part be simply the shortest path to his result: if there’s no rational basis, he might reason, why even get into what he perceives as the inconclusive state of Ninth Circuit precedent, or the reading of Windsor?

    I wonder if this might have any effect on Judge Floyd of the Tenth Circuit, who in oral argument — and let’s remember that tealeaf reading is hazardous! — posed a question of whether Utah could win under anything more than simple rational review, or lose under that bare standard.

  • 89. Margo Schulter  |  May 19, 2014 at 1:38 pm

    Dr. Z, please let me join Rose and many others here in California in congratulating you and your spouse, and in celebrating the united front for marriage equality we now have on the Pacific coast!

  • 90. Margo Schulter  |  May 19, 2014 at 1:42 pm

    Big Rick, in lots of medieval European literature, Tristan and Isolde are the embodiment of true romantic love. Of course, often in that 11th-15th century tradition, courtly love was within someone other than your lawful spouse, although there are stories of courtly love leading to holy matrimony.

    So the basic contrast Judge McShane is making is between marriage for true love, and the kind of marriage of convenience for tax breaks or the like that was described in some of the oral argument as “crass” but perfectly legal under Oregon law.

  • 91. Craig  |  May 19, 2014 at 1:43 pm

    What a wonderful day.

    A wonderful ruling on very conservative grounds which I also like given this case won't be appealed. It doesn't rely on the yet to be finalized ruling on heightened scrutiny.

    Now, at this moment there are now two states (California and Oregon) where same sex couples can marry, based on the US Constitution. I think this is an important staging post to full equality. Momentum is building.

  • 92. DrPatrick1  |  May 19, 2014 at 6:54 pm

    I agree. Although we are looking for a strong heightened scrutiny ruling, it would have little effect unless coming from SCOTUS or at least an appeals court. In this case, it is quite satisfying that when no one will appeal, the ruling itself declares there is no rational reason to deny marriage equality.

  • 93. Margo Schulter  |  May 19, 2014 at 1:49 pm

    Maybe I should check that people can see my comments, such as the one about that stork (#41) that SeattleRobin also found noteworthy (#66).

    The reason I ask is that although I can see these comments in order in my own elinks browser, I couldn’t seem to find them in Internet Explorer at the local university library when I viewed this site, even though a Google search turned up my comments.

  • 94. Rik  |  May 19, 2014 at 1:51 pm

    So what other decisions are coming in the near future? What's the next state to keep eyes on?

  • 95. NotAPIckleFan  |  May 19, 2014 at 2:05 pm

    PA? Indiana? Where's Raga? Let's see what that poster says.

  • 96. Ragavendran  |  May 19, 2014 at 3:35 pm

    On the federal appellate level, I guess we could expect rulings from the 10th and 4th in June/July. Also, from the 9th, we'll know by the end of this week whether it decides to stay the Idaho ruling pending appeal, and whether it will rehear SmithKline en banc.

    On the federal district court level:

    Indiana: As far as I know, neither Judge Young, nor the Seventh Circuit has issued a stay of the proceedings in Baskin pending the preliminary injunction appeal. Seeing as oral argument on summary judgment was held on May 2, a ruling may be expected soon, unless the Judge wants to stall and see what the Seventh thinks about the preliminary injunction.

    Pennsylvania: In Palladino, oral argument on summary judgment was held on May 15, and in Whitewood, a summary judgment motion is pending (no oral argument) and a trial is scheduled to begin on June 9. A ruling could come down on either/both of these cases (in the latter, it could render the trial moot) in the next few weeks.

    Wisconsin: In Wolf, briefing was completed just today on a summary judgment motion. Judge Crabb could schedule oral argument or decide to rule without one in June/July. A decision could render the trial scheduled for August 25 moot.

    I'm not keeping track of cases in state courts, so I'm not sure if we can expect anything there.

  • 97. Jae  |  May 19, 2014 at 2:08 pm

    4th Circuit (Virginia) could come in a few weeks they move pretty quickly.

  • 98. Margo Schulter  |  May 19, 2014 at 1:52 pm

    FYoung, I agree that the Fifth Circuit could rule against us — or, from another point of view, be the likeliest candidate to provide us with a post-Windsor circuit split.

  • 99. TKinSC  |  May 19, 2014 at 1:52 pm

    Is this going to stick?

  • 100. Rose  |  May 19, 2014 at 1:57 pm

    Why wouldn't it stick? Every Same-Sex couple who has gotten married so far even in Utah and Arkansas will have their marriage validated no matter if and that's a big IF the States should eventually prevail, which I DON'T believe they will!!!

  • 101. Rose  |  May 19, 2014 at 3:01 pm

    But the States AREN'T likely to prevail……none have up to this point and I seriously doubt ANY will this round…..however, it doesn't mean we can't lose in the 5th or another circuit Court of Appeals, in which will assure a case being at SCOTUS in their next term!!!

  • 102. Married in CA  |  May 19, 2014 at 3:12 pm

    No use arguing with this nutjob, Rose. The scare quotes around the word marriage denote him as a TROLL. And he's flailing with impotent rage because he just cannot stop true equality for the LGBTQ people of whom he's so deathly, irrationally afraid. We're winning the war, and TKKKNSC can't do anything to stop us.

  • 103. Rose  |  May 19, 2014 at 3:04 pm

    Oh and DON'T thing more lawsuits will NOT follow if those legal marriages are ruled invalid or nullify…….and that's NOT likely to happen either and the federal government is NOT going to stop benefits without first making sure they won't violate some law!!!

  • 104. davep  |  May 19, 2014 at 3:12 pm

    Ahh, TK, so full of hope in the face of zero logical or legal argument to support your petty wishes. Keep dreaming.

  • 105. Corey from Seattle  |  May 19, 2014 at 2:01 pm

    Very likely yes, because a) there are no parties with standing who are likely to appeal, and b) the Ninth did not grant the stay, suggesting c) NOM is unlikely to prevail in its quest to stick its beak into this case.

  • 106. HavingFun  |  May 19, 2014 at 5:52 pm

    Everybody. Just ignore tkinsc.dont waste your time.

  • 107. Margo Schulter  |  May 19, 2014 at 1:57 pm

    Of course, it’s possible, if SCOTUS goes the “let it keep percolating” route, that denial of cert. to one of the cases after a favorable circuit court ruling could start the marriages up again in places like Utah or Michigan. With Arkansas, a decision by the Arkansas Supreme Court (late this year if it goes fast?) based on the State Constitution as an adequate and independent ground would get things rolling there, too.

  • 108. Rik  |  May 19, 2014 at 1:59 pm

    Nobody who has standing to appeal is going to do so… so yes.

  • 109. Rik  |  May 19, 2014 at 2:00 pm… so pretty 🙂

  • 110. FYoung  |  May 19, 2014 at 3:06 pm

    Is there a way to thank the Wikipedia map editors for such speedy updates, literally within minutes of a new development?

    The source code for the map was updated 10 times in the last month alone.

  • 111. StraightDave  |  May 19, 2014 at 6:32 pm

    they must have a full-time guy dedicated to that one map 🙂
    and the rest of this year is likely to be more of the same. There gonna need a new color scheme to distinguish states struck down by district vs appellate courts.

  • 112. Guest  |  May 19, 2014 at 7:26 pm

    I agree, but I wish there were more blue and less red. 😉

  • 113. Deeelaaach  |  May 20, 2014 at 1:39 am

    I do too, but it's coming. Hopefully much sooner than we think.

  • 114. Margo Schulter  |  May 19, 2014 at 2:08 pm

    Yes, the comments of Ragavendran carry a strong presumption of accuracy.

  • 115. Bruno71  |  May 19, 2014 at 2:15 pm

    UTAH: Judge Order Recognition Of Gay Marriages, Stays Order For 21 Days

  • 116. davep  |  May 19, 2014 at 2:29 pm

    Hey, that's encouraging. Glad to hear this!

  • 117. grod  |  May 19, 2014 at 3:03 pm

    Kimball's order:

  • 118. grod  |  May 19, 2014 at 6:32 pm

    "Gamesmanship": Kimball is rightly ticked with the State. For instance "if the court is to consider fairness as the State requests, the court notes that the State chose this forum by removing the action from state court [to the [federal court]. Unlike Plaintiffs who seek certification in order to obtain favorable rulings from both courts, the State seeks to begin the process anew in a different forum from the one it chose. The court agrees with Plaintiffs that the State’s late-filed motion to certify, asserting a nearly identical question to those posed by Plaintiffs, appears to be a delay tactic p 33 Kimball denies both requests for cert. My question: can this finding which seriously questions the state's motives imho, be submitted to the 10th Appeal Court judges hearing Kitchens and Bishop? What the state did to these couples is grossly self-serving – covering their arses. Animus!

    "It strikes the court as procedural gamesmanship for the State to remove a case to federal court and then ask the court in the forum the State choses to abstain from acting. (…….) State footnote 5 p 33

  • 119. FYoung  |  May 19, 2014 at 2:40 pm

    Fixed link:

    Does the 21 day period mean the 10th Circuit will have issued its final decision for Utah by then?

    In any case, with this order, it's looking good for the final 10th Circuit decision for Utah and Oklahoma …and Colorado, Kansas and Wyoming, the other states in that circuit.

  • 120. davep  |  May 19, 2014 at 2:52 pm

    No, that is a separate matter. This ruling will mean that those 1000 marriages that happened in Utah before the state just 'decided not to recognize them' a few days after the ruling (without following any legal procedure that would provide valid justification for doing so) will now be recognized, starting in 21 days, unless some legal decision on this one particular question about these specific marriages can prove that these marriages were not, in fact, valid, before that 21 day period is up. And there is very little chance of anyone being able to prove any such thing about those 1000 marriages. It's pretty clear that they were valid when they happened, and that would rule out any argument to void them.

    That's a separate question from the question about ADDITIONAL marriages being allowed to happen, now that there IS a stay in place. That won't happen until the appeals process is over.

  • 121. Big Rick  |  May 19, 2014 at 3:56 pm

    Aren't the recently married same-sex couples in Michigan in the same boat? Or is the State of Michigan recognizing those marriages?

  • 122. grod  |  May 19, 2014 at 6:47 pm

    Rick and dave: IMO, this decision indeed has application in Michigan and in Arkansas. It also will may well help clarify the matter of adoptions which is presently before the Utah Supreme Court. With 70+ marriage equality related cases in the courts, each case illustrates another aspect of the injustice the LGBT community faces.

  • 123. sam  |  May 19, 2014 at 9:32 pm

    Indeed, there were parts in the decision that were clearly intended for the Utah Supreme Court. He says that given no state court has found in Utah's favor regarding the adoption cases and valid marriages then clearly there is no confusion regarding state law. He also goes further to indicate that since the plaintiffs marriage rights are protected under the constitution, state law can only increase on that protection.

  • 124. Bruno71  |  May 19, 2014 at 2:27 pm

    There is no such thing as domestic partnerships without "marriage" or a "marriage" ban. There WERE domestic partnerships without marriage, and there WAS a discriminatory marriage ban, no scare quotes involved anywhere that I'm aware of. I think it's about time you figure out a way to not antagonize people on this site with your use of scare quotes around the word marriage, despite whatever opinions you may hold. It's rude, and it makes you not welcome here.

  • 125. davep  |  May 19, 2014 at 3:03 pm

    They are just as married as other couples. Same application form, same marriage license. All the same laws, rights, benefits, protections, and legal responsibilities apply to all legally married couples, regardless of their gender.

    Yeah, you don't like it.

    We get that.

    So what?


  • 126. davep  |  May 19, 2014 at 3:32 pm

    Neither certificate CAUSES the event that the certificate is certifying.

    Death certificates denote that someone has died.

    Marriage certificates denote that someone has legally married.

    It's not rocket science.

    You got nothing, troll.

  • 127. Swifty819  |  May 19, 2014 at 4:01 pm

    And just because you believe that your "God" prohibits 2 people of the same sex from marrying because your Bible says so (according to you), doesn't mean those things are true either. Be careful with arguments such as yours.

  • 128. sfbob  |  May 19, 2014 at 8:48 pm

    At various times marriage has had any number of purposes. Until recent times most people were not legally married. Legal marriage mattered only where significant power and other assets were involved. In those marriages the purpose was to manage political and economic power and ensure that assets were distributed as the owners wished them to be. Procreation was rather incidental. In principle there was and is no reason why marriage cannot be between two people of the same gender. Habit is not a sound basis for not changing the law.

  • 129. Swifty819  |  May 20, 2014 at 2:44 am

    People like me? One, you don't even know me. If you did, you'd know I'm a Christian that was born with a physical disability. And yet, you go ahead and sling mud at me.

    If you had any respect left, you just lost it.

    Good day.

  • 130. Swifty819  |  May 20, 2014 at 3:28 am

    Please, tell me where I attempted to "undermine marriage". You have a long history here of putting words into other people's mouths. And this is no different.

    Quit trolling.

  • 131. CowboyPhD.  |  May 20, 2014 at 6:22 am

    Interesting…someone claiming to know the "intention" of God. What tripe.

  • 132. CowboyPhD.  |  May 20, 2014 at 6:35 am

    And that ends any rational discussion. Dismissed.

  • 133. Rob  |  May 20, 2014 at 6:41 am

    Interesting. This bible is full of references to marriage between one man and many *MANY* women – so that must be what he intended,. Also, god condones owning slaves – where to I get mine since I would be following god's will? In any case, this is your god, so you can keep him to yourself.

  • 134. davep  |  May 19, 2014 at 4:06 pm

    Sure it does. You got nothing, troll.

  • 135. TKinSC  |  May 19, 2014 at 3:04 pm

    Said the person talking to himself in the mirror.

  • 136. Bruno71  |  May 19, 2014 at 4:56 pm

    If you went to Africa and you objected to a tribal ritual, would you go up to that tribe and start preaching your own opinions to them? Trying to get them to change their ways just because you don't agree with them? I bet you would, actually. Because despite your farce of acting like a logical person who only comes for a simple discussion of disparate opinions, you are actually a mean-spirited bigot who just wants to antagonize people who don't think and act exactly as you think they should. You are the exact type of person responsible for the misery and suffering of LGBT people worldwide, no matter how "reasonable" you come across. Yes, "reasonable." In scare quotes.

  • 137. Blimpie  |  May 19, 2014 at 6:01 pm

    He's got no life Bruno. People don't hang out on boards like this that have nothing to do with them. It's kind of weird.

  • 138. davep  |  May 19, 2014 at 8:40 pm

    stop whining.

  • 139. Bruno71  |  May 19, 2014 at 8:43 pm

    So is that fairy in the sky you preach about. So what?

  • 140. Guest  |  May 19, 2014 at 8:51 pm

    You must be so lonely.

  • 141. Blimpie  |  May 19, 2014 at 9:02 pm

    Very, very sad and lost person.

  • 142. Klaus  |  May 19, 2014 at 6:06 pm

    Wow, it sounds like the Holy Spirit is really trying to convict your heart about something!

  • 143. Rose  |  May 20, 2014 at 7:39 am

    You are NOT right. I am legally married, it is NOT a so-called marriage, but a legal marriage recognized by the State and Federal Governments with ALL of the rights, benefits and privileges that are associate with being married!!!

    My marriage license looks like EVERY other marriage license issued between June 2008 and November 17th, 2008 to both opposite-sex and Same-Sex couples!!!

    My family and friends ALL see it as a true and honest marriage no different than their own!!

    Frankly, you're nothing but a troll and this is my LAST response to you!!!

  • 144. Retired_Lawyer  |  May 19, 2014 at 2:37 pm

    What a fine opinion! I am sorry that Judge McShane's son does not appreciate the Judge's taste in Christmas gift sweaters. For several years running my nephews asked me for sweaters at Christmas. When I expressed mild surprise, they informed me that they could rely on me to make better choices than their parents when it came to sweaters!

    Seriously, the last passage, quoted above by Ragavendran, is an elegant, eloquent series of remarks that are sure to be widely quoted.

  • 145. Corey from Maryland  |  May 19, 2014 at 3:53 pm

    Bruno and davep, you are wasting time with TKNSC. As so many have written before, the best thing to do is simply ignore TKNSC and anyone else of its ilk.

    Celebrate the Oregon victory today as it is well deserved for those couples who decide to make the commitment to each other

  • 146. Margo Schulter  |  May 19, 2014 at 4:31 pm

    Rose, I was thinking of you when reading the decision in Utah (stayed for 21 days to permit the Tenth Circuit consideration) holding that couples who married Dec. 20-Jan. 6 have a vested interest, not in the stayed Kitchen decision itself, but into their lawful and completed marriages themselves!

    The court cited Strauss v. Horton as a parallel and persuasive case, holding that Proposition 8 could not be applied retroactively to invalidate some 18,000 California marriages — with yours as one of them!

  • 147. ColleenJuniper  |  May 19, 2014 at 5:57 pm

    First, congratulations to all my fellow Oregonians! Now my friend's church wedding to her wife, officiated by their pastor and attended by their family and friends, has the same legal standing as my husband's and my "oh, well we've been together for over a decade we might as well get married so we don't pay as much tax– I'll see if there's a judge available this weekend" marriage.

    Speaking of pragmatism, I was especially happy to see on page 8, Judge McShane's enumerations of the financial and legal costs of "equal to marriage but not the word marriage" domestic partnership. This, to me, is the most glaring evidence of legal inequities offered by an otherwise "tolerant" society.

  • 148. Michael  |  May 19, 2014 at 6:01 pm

    Militant anti-family activist Brian Brown was absolutely right! 2014 is a GREAT year for marriage!

  • 149. Grrr  |  May 19, 2014 at 6:33 pm

    Question for the legal eagles here. Suppose in 2015 the Supremes grant cert to the Virginia case for example, and then rule that States can ban gay marriage on limited federalism grounds. (I don't think that will happen but let's suppose so).

    Would such ruling apply to cases like Oregon and California, where the issue never reached the appeals stage?! Or only to the consolidated cases at the time of cert (Virginia, Oklahome, etc)?

  • 150. TKinSC  |  May 19, 2014 at 6:46 pm

    They won't. It would be too inconvenient and messy. They'll just pass it.

  • 151. Ragavendran  |  May 19, 2014 at 6:59 pm

    IANALE (I Am Not A Legal Eagle), but as I understand it, the ruling would apply, in the strictest sense, only to the cases they decide to hear and rule on. It would then be cited as binding precedent and would serve to dispose off all the other such cases that are pending. It cannot be applied retroactively to, say, Oregon or California, as McShane and Walker have already closed these cases. I would guess that new litigation could attempt to revive the state bans (they would seek to overturn existing rulings based on the fresh doctrinal development), but it does not "automatically" apply.

  • 152. DrPatrick1  |  May 19, 2014 at 7:23 pm

    Just as Ragavendran says above, it would only apply to unsettled cases, or cases settled by the ruling itself. How broadly the impact would depend on the wording of the ruling. For example, judge McShane here, as Walker before him, found it particularly irrational to have this separate but equal (which was not equal) situation of domestic partnerships with all the same rights as marriages (supposed to be equal in effect as far as state rights are concerned). It is quite reasonable to see how an unfavorable Supreme Court ruling would be based on a state's "interest" in denying gay couples' rights, but would not permit a state to grant all those benefits to gay couples but call it something different.

    Disclaimer: I do not think this is likely to happen, in any case. The yellow brick road to the Emerald City of Equality may have many twists and turns, complete with an angry Maggie in a black dress, but it is already paved. We have only to travel it.

  • 153. Dr. Z  |  May 19, 2014 at 9:33 pm

    In reflecting on this amazing day, something just occurred to me. As I mentioned earlier, we were momentarily stumped when each of us were asked what our previous marital status was – single, divorced, or widowed.

    It just hit me that, on these state-supplied forms, there was no checkbox for "domestic partner" even though for five years now Oregon has had a strong DP law mandating that DPs be treated as equivalent to married. I can think of no more telling evidence that DPs have been a sham and a failure. Even the state is tacitly admitting that DPs do not count.

  • 154. davep  |  May 19, 2014 at 10:58 pm

    Yup. That really says something about them, doesn't it? BTW, congrats again! (what the heck, and again!)

  • 155. Big Rick  |  May 19, 2014 at 11:11 pm

    I doubt that DP was overlooked. It was certainly omitted by design. I suspect the reason for not including it in the list of choices is that a domestic partnership was not considered to be a marital status. It's just more proof that "separate but equal" is a ruse. It is separate without doubt, while remaining anything but equal in effect.

  • 156. Dr. Z  |  May 20, 2014 at 7:29 am

    Except that you cannot legally get married if you have a valid DP to another person. They should have asked, but I can only conclude it's not important to them.

  • 157. Rose  |  May 20, 2014 at 7:32 am

    Are you sure? I know here in California that one can marry even if they had a DP, at least to the same person.

  • 158. Bill  |  May 20, 2014 at 7:37 am

    I am still working through this one where I stand. To be honest I am somewhere in between. That being said I am happy for all my friends. What I am not happy about is and this in no way meaning to offend anyone, so please just hear me out. The fact that as an American people we can vote something in. (Measure 36) and a judge can over turn it w/out a vote. It makes me feel as my vote on any measure is useless. If someone with more power than me can over turn it. That is the slippery slope some are talking about.

  • 159. JayJonson  |  May 20, 2014 at 7:51 am

    When you vote for unconstitutional laws, your vote harms people. Just as the laws enacting Jim Crow were unconstitutional regardless of how many people supported them, so laws discriminating against others are unconstitutional. That is the point of having Courts in a federal constitutional democracy.

  • 160. Ragavendran  |  May 20, 2014 at 7:55 am

    Bill, simply put, the American Constitution does not allow for unconstitutional laws, whether they are enacted by legislators (whom you, the American people, elected) or passed through popular vote (directly voted on by the American people), no matter how popular the vote is. So you shouldn't be worried that your vote on any measure is useless, just unconstitutional measures. If the measure is simply a policy matter, then courts cannot intervene, as the US Supreme Court has expounded in their recent opinion upholding Michigan's measure that bans affirmative action. However, when a measure deprives citizens of their constitutionally protected rights, then, no matter how well intentioned the people who voted for it were, the law simply cannot stand. It doesn't imply any "blanket" negative feelings towards the voters (the law would have to be struck down even if legislators enacted it, not just voters). As JayJonson succinctly puts it above, "that is the point of having Courts in a federal constitutional democracy."

  • 161. Quest  |  May 20, 2014 at 8:09 am

    I am in no way meaning to offend you, so please just hear me out (fake, shallow, childish thing to say).

    I don't give a damn about the ignorant Christian idiots who have taken my right to marry into their hands, and voted on it. The act implied that the right was somehow theirs to begin with, and it never was, ever. That privileged, naive, stinking attitude is their world view, not mine. I am quite delighted a judge pulled that rug out from underneath their feet. The fact that they're clueless of their new position in this world is their problem. If they feel their vote was useless, tough shit. They haven't lost anything, and that is a totally shallow, and selfish response. Not only do the whiney Christian idiots refuse to see who they've victimized, but they refuse to see the offense in their actions. I have nothing in common with those weasels.

    So, take your slippery slope, and shove it. I don't give a damn about your wasted vote.

  • 162. StraightDave  |  May 20, 2014 at 8:23 am

    In short, Bill, there are things the Constititution allows you to vote on and others that involve fundamental rights that cannot ever be voted on. There are plenty of opportunities to exercise your legitimate right to vote and I encourage you to take advantage of that. The Constitution merely puts limits on our ability to abuse our fellow citizens, and history has shown that we unfortunately try to stretch those boundaries occasionally.

  • 163. JayJonson  |  May 20, 2014 at 8:47 am

    It is amazing how many people do not understand our democracy. Don't they teach about the Bill of Rights in civics class anymore? As President Obama is wont to say, decisions like these about marriage equality help us toward a "more perfect" union. Our history is full of instances where we disregarded the promise of our Constitution, but as Dr. King observed, the moral arc of the universe bends toward justice. I just wish it did not take so long, but I am glad that the end game on the question of marriage equality is becoming clear. Unfortunately, I live in a deep red state that is likely to be among the very last ones to recognize my marriage.

  • 164. Michael Grabow  |  May 20, 2014 at 8:48 am

    If your home state voted to imprison every person named Bill and you were sitting in a jail cell right now, how would you feel about a judge overturning that decision?

  • 165. DrPatrick1  |  May 20, 2014 at 9:01 am

    If one believes marriage discrimination should be reviewed using a rational basis test, then a state which treats DP's identically to a marriage would have a different analysis than a state which offers no rights. In the first situation, the state would have to find a rational reason to deny a label in order to withstand review. Any argument related to any benefit of marriage would be irrelevant to the discussion.

    In the second situation, the withheld rights would be relevant to the discussion. However, I still do not find those arguments rational.

    Of course, this does provide a disincentive to provide the incremental step of everything but the name marriage. It is difficult to imagine any scenario in the US today where a state would willingly grant everything but marriage, but feel the need to withhold the word marriage. Certainly, equality minded states sometimes did want to take this incremental step, let's call those states the low hanging fruit. At this point, they have all been harvested, which is to say we have all the rights the states will be willing to give at this point. The only reason any state would want the separate but equal statuses now would be in response to a court decision stating the unequal treatment is unconstitutional. They would attempt to give something less than true equality in an effort to continue to demean the unfavored population. This too is unconstitutional. So, the next/current stage of this fight for equality is a fight to the finish line. We should no longer be content to accept anything less.

  • 166. federal vs state guiidelines book  |  July 9, 2014 at 8:49 pm

    The six states mentioned by Mac – Callum may just be the beginning.
    In theory, this law could prevent someone from running for local office or testifying in court if they
    are atheists. The Occupational Safety and Health Administration (OSHA)
    requires that an employer provide employees a
    workplace that is free from hazards that are likely to
    cause serious injury or death.

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