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Buzz about Tenth Circuit decisions today in marriage equality cases is unsubstantiated

LGBT Legal Cases Marriage equality Marriage Equality Trials

Tenth Circuit Court of AppealsThere have been rumors this morning that the Tenth Circuit Court of Appeals will issue their decisions in the Utah and Oklahoma marriage equality cases. The unsubstantiated rumors originated on NPR, and spread on Twitter.

No one has been able to confirm that there’s any truth to the rumors, although several reporters have been seeking out information all morning. Among others, Nina Totenberg has confirmed that there’s no truth to the rumors:

Other sources have informed EqualityOnTrial that if a decision were to be announced today in those cases, it’s “just a coincidence.”

In short, there’s no reason to think the Tenth Circuit is going to issue decisions in Kitchen v. Herbert or Bishop v. Smith today.

As usual, we will report any new developments.


  • 1. DrHeimlich  |  May 23, 2014 at 10:12 am

    The 10th Circuit web page is now updated with opinions, orders, and judgments from today:

    As you say, no Kitchen or Bishop.

  • 2. brandall  |  May 23, 2014 at 10:34 am

    Wisconsin moves to avoid the Utah snafu:

    [EXCERPT] "Anticipating the state could soon lose its attempt to uphold Wisconsin's gay marriage ban, Attorney General J.B. Van Hollen took the unusual step Friday of asking a federal judge to immediately block her own decision if she does strike down the ban."

  • 3. Scottie Thomaston  |  May 23, 2014 at 10:41 am

    That story says: "Normally, lawyers wait until a judge enters a decision before asking for a stay."

    But that's not actually true. In fact, when they did that in Utah and elsewhere, it has caused a lot of chaos. Normally, they ask for it during arguments, or in filings before arguments are heard, to prevent that.

  • 4. Kevin  |  May 23, 2014 at 11:10 am

    Well, it is accurate in the sense that in the vast majority of cases that actually get litigated,you wouldn't necessarily know whether an appeal would be appropriate (and thus ask for a stay pending appeal) until you know exactly how you lost. Here, ban defenders obviously know that they are likely to lose and know in which ways they'll lose, so yes, there is a greater expectation that those requests should come sooner rather than later.

  • 5. Warren  |  May 23, 2014 at 11:24 am

    I was wishing that the rulings would be released late today before the long weekend. Since it won't be today, I'm hoping for July 3…July 3, would make for a specail 4th of July weekend if the rulings are favorable for EQUALITY.

  • 6. Christian  |  May 23, 2014 at 11:55 am

    On another topic, I found this to be very powerful. Fmr. Rep Carol Ronen's speech against Illinois SB 1773, which was repealed and replaced by SB 10 last year, on April 1996 is pretty much one of the greatest pro-gay civili rights speeches I've ever read. Especially considering the day and age in which it occurred.

    The soeech begins in page 6 (pg 56 of the original doc)

    Backstory: The background here is very much similar to how big daddy DOMA was passed in Congress this same year. It was election time and gay & lesbian civil rights (much less marriage rights) were still pretty unpopular if not outright loathed.

    While the bill inevitably passed by wide margins (only California and Colorado ever defeated such bills, Colorado's mini-DOMA being vetoed by gov. Romer), The bill passed 42-9 in the senate and 87-13 (with 6 abstaining) in the House, it wasn't without strong and vocal opposition by many democrats.

    Represtantive Ronen represented Cook county which was also, happily, the first county to start issuing marriage licenses under a federal court order after SB 10 passed.

  • 7. Lee  |  May 23, 2014 at 11:55 am

    A ruling in our favor would be awesome if it came out on June 28, give or take a day. That was the day in 1969 the Stonewall Riots happened. It would also be a huge slap in the face to NOM and all the other bigots while I flooded NOM's FB page with this video:

  • 8. brandall  |  May 23, 2014 at 12:53 pm

    Has anyone tallied the Republican vs. Democratic federal judges for the federal level decisions since last June?

    Fox just made this statement: "In a testament to the influence of judicial appointments, most of the judges responsible for the decisions over the past year were appointed by either President Obama or, two decades ago, Bill Clinton."

    Is it correct?

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

    Fox hasn't done the research, why should we?

  • 10. Warren  |  May 23, 2014 at 1:29 pm

    Fux News is referring to 8 cases. 2 out of 8 cases….luck of the draw?

    In Pennsylvania's case, the judge who threw out the ban was appointed by Republican President George W. Bush. U.S. District Judge John E. Jones III overturned a 1996 Pennsylvania law barring recognition of gay marriage, calling it unconstitutional.

    Only one other judge — of the eight who have ruled against gay marriage bans since the DOMA decision — is Republican-appointed. The other is Bernard Friedman, a U.S. District Court judge in Michigan who struck down that state's gay marriage ban in March, though the decision is being appealed. Friedman was appointed by Ronald Reagan.

    Three of the judges — in Oregon, Virginia and Utah — were appointed by Obama in the last few years. Two were appointed by Clinton. One, in Idaho, was appointed by regional judges.

  • 11. Ragavendran  |  May 23, 2014 at 1:36 pm

    Heyburn (Kentucky) was a George H.W. Bush appointee.

  • 12. Warren  |  May 23, 2014 at 1:53 pm

    Fux News is referring to 8 cases. 2 out of 8 cases….luck of the draw?

    Fux News does it again. Pick and chose what they want to report to support their view.

    "A federal judge has ruled that Kentucky must recognize same-sex marriages performed in other states,"

  • 13. ebohlman  |  May 24, 2014 at 2:59 am

    Judges at the district and circuit levels are randomly assigned to cases and have no choice as to which ones they'll hear (except for en banc reviews at the circuit level, but we haven't had any of those), so the party breakdown can't reflect anything other than the relative numbers of Democratic and Republican appointees among the judiciary in general.

    Since all the judges have ruled the same way, there's no statistical association between party of appointing President and outcome based on what's happened so far. The usual way to describe the association of two two-valued (yes/no) variables is the odds ratio (OR): divide the odds of a Democratic appointee ruling for equality by the odds of a Republican appointee ruling for equality (the odds of a favorable ruling is the relative frequency of favorable rulings divided by the relative frequency of unfavorable ones; so far, that's infinity for judges for both parties, so the OR is infinity/infinity which is defined by convention as 1).

    An OR ranges from 0 (complete negative association, with all Republicans ruling favorably and all Democrats ruling unfavorably) to infinity (complete positive association; all Democrats ruling favorably and all Republicans ruling unfavorably), with a value of 1 (like we have) meaning no association (knowing the judge's party doesn't help with predicting the outcome).

    Thus Fox is merely seeing patterns in random noise, much like the person who thinks he's seen the face of Jesus in his dog's "deposit".

    If you want to see a real partisan association, look at attorneys general deciding whether or not to defend marriage bans; there you have a strong association favoring Democrats.

  • 14. Bruno71  |  May 23, 2014 at 2:26 pm

    Equality Pennsylvania telephone town hall regarding marriage equality and beyond in the state:

  • 15. davep  |  May 23, 2014 at 3:38 pm

    Article about marriages that happened today in Pennsylvania:

  • 16. Guest  |  May 23, 2014 at 3:48 pm

    Someone on another thread was wondering when the next case would be ruled on. Not sure, but it may be our case in Kentucky to allow ME within the state and allow clerks to issue licence.
    Should come down on 5/28. My partner and I have been waiting 34 years for this. Please wish us luck and hopefully a stay can at least be delayed long enough for us to get married. We are the Love plantiff's and our motion to intervene was filed on Valentine's day. Thank's to everyone for in depth info on all cases. Learning a lot about the legal system for sure. Hope to see a "Love Wins" headline on Thursday. Haha. We will be lucky if it even gets a mention. ME thankfully is becoming old news.

  • 17. davep  |  May 23, 2014 at 4:35 pm

    All the best to the both of you!

  • 18. JayJonson  |  May 23, 2014 at 4:39 pm

    Good Luck!

  • 19. Dr. Z  |  May 23, 2014 at 4:42 pm

    Good luck!!

  • 20. Chuck from PA  |  May 23, 2014 at 4:51 pm

    Best wishes. As the singers croon, what the world needs now is Love Sweet Love.

  • 21. Guest  |  May 26, 2014 at 6:26 pm

    Thanks Chuck. I'm thinking that will have to be the wedding song now.

  • 22. StraightDave  |  May 24, 2014 at 6:18 am

    I certainly hope this is true. If it wasn't for the fact it was written so perfectly, my gut would scream "troll". It just doesn't feel like a troll, but 5 days notice sounds quite unusual. It's hard to keep leaks like this under wraps. Would a court gives the parties this much advance notice?

  • 23. Ragavendran  |  May 24, 2014 at 6:32 am

    I'm suspicious too. The briefing schedule on PACER states that "answer to Intervening Complaint due 3/19/2014; Motion and Memorandum for Relief by Plaintiffs due 4/18/2014; response to any motions by Plaintiff or other Amicus Parties due 5/19/2014; reply to any motions by Plaintiff due 5/28/2014." How then can an order come down on the 28th? And seeing as Heyburn (admittedly reluctantly) granted a stay pending appeal for the marriage recognition portion of the ban in March, it's all but certain he will grant a stay here too without any window. I don't think we can expect any more rulings in May – just my two cents.

  • 24. Guest  |  May 26, 2014 at 6:29 pm

    Spoke to one of our attorney's and you are correct. Should be in the few weeks however. I stand corrected. Thanks.

  • 25. FYoung  |  May 23, 2014 at 4:25 pm

    Something to look forward to this Wednesday!

    Wouldn't it be great if Kentucky was next?

    Here's wishing you all the best.

  • 26. Reformed  |  May 23, 2014 at 4:31 pm

    I guess NOM will have to hold off on their prepared press release: you know the one, "NOM strongly condemns the decision by . . . In a statement attributed to Brian Brown . . . "

    But as the wicked witch of the west said, "Don't hurt them right away. . . let them think about it for a little first". (The right character in this case, but the right sentiment, I hope)

  • 27. Reformed  |  May 23, 2014 at 4:33 pm

    The wrong character actually.

  • 28. Dr. Z  |  May 23, 2014 at 4:46 pm

    We need a little wooden garden windmill of Brian Brown with his mouth open (is it ever shut?) frantically flailing his arms in circles, pivoting left and right, trying to stop the winds of change.

  • 29. Klaus  |  May 23, 2014 at 8:08 pm

    And screaming "activist judges," "lawless," "will of the people" and "send me money!"

  • 30. Marriage Equality Round-U&hellip  |  May 24, 2014 at 8:42 am

    […] USA, Oklahoma / Utah: Rumors of a tenth circuit ruling on one or both marriage equality cases Friday turned out to be unfounded. full story […]

  • 31. Sagesse  |  May 25, 2014 at 7:19 am

    Personally, I've wanted to see the ERA passed since 1973. Seems there's another reason to pass it. Hmmmm.

    ERA revival a back door to legalizing same sex marriage nationwide [Illinois Review]

  • 32. Rik  |  May 26, 2014 at 7:05 pm

    Wow that ERA article read
    More link goes to a daily caller page with some of the most vile hateful comments I have ever read,
    Including a fascinating conspiracy theory that nazis were secretly all gay and the illuminati are behind gay marriage. Strange to think there are people deranged enough to believe such things

  • 33. Sagesse  |  May 25, 2014 at 8:27 am

    Pennsylvania is the first marriage equality state that has no sexual orientation anti-discrimination laws. It is important to watch how this plays out, in Pennsylvania, but also in other states where marriage equality decisions are currently stayed.

    Gay marriage in Pa.: Same-sex couples feel mixture of joy, disbelief and destiny following marriage ceremonies []

    "What I experienced is there were no barriers," [Rev. Anne Mason of the Unitarian Universalist Church of Lancaster] said. "It didn't matter what gender we were or what race. … We were all connected because loving hearts were together and they were honored for who they are."

    But Mason also provided a reality check that other ministers… have brought up when discussing the marriage equality ruling.

    Mason said some of the people she married today couldn't have their pictures taken because Pennsylvania currently allows discrimination based on sexual orientation or gender identity.

    "They couldn't have people knowing they were out because they could be fired," Mason said. "That's the reality check."

    Mason and others have advocated for the passage for non-discrimination legislation, including state House and Senate Bill 300.

    "I want people who are energized by this day to work toward the passage for SB 300 and we could do that in June," Mason said. "It's supposed to come up for a vote."

  • 34. Zack12  |  May 25, 2014 at 8:40 am

    That scenario also played out in Michigan, Arkansas and Utah. It's a reminder that we still have plenty of work to do.

  • 35. Sagesse  |  May 25, 2014 at 9:52 am

    I don't have the backup, and there may be a couple of exceptions, but I believe that, up to Pennsylvania all the marriage equality states had comprehensive sexual orientation anti-discrimination laws. Again, there may be a couple of exceptions, but all the states with DOMA statutes and constitutional amendments do not have comprehensive sexual orientation anti-discrimination laws. Hence, any state in future that becomes a marriage equality state will not have comprehensive sexual orientation anti-discrimination laws. Plenty of work to do indeed.

    It is also true that the 1300 couples who married in Utah are not protected, nor are the couples who married in any other state where there was a 'marriage equality moment' before a stay was imposed.

  • 36. ebohlman  |  May 26, 2014 at 12:58 pm

    Actually, Wisconsin was the first state with q non-discrimination law, and yet they're pretty recalcitrant about marriage. I think Colorado and Nevada also have such laws, but not (yet) marriage.

  • 37. Bruno71  |  May 26, 2014 at 1:24 pm

    I think Wisconsin has yet to include gender identity, while Colorado and Nevada (quite recently) both do.

  • 38. Sagesse  |  May 26, 2014 at 3:47 am

    An article from CNN on the subject of LGBT protections… or not:

    Yay for same-sex marriage, but … [CNN]

  • 39. david  |  May 26, 2014 at 5:27 am

    Florida Hearing…….On Wednesday, July 2 at 4 PM, the fight for marriage equality in Florida will have its day in court, with a hearing before Judge Sarah Zabel in the Eleventh Judicial Circuit Court in Miami.

  • 40. Guest  |  May 26, 2014 at 5:34 am

    Which case is it?

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