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Wisconsin same-sex marriage ban struck down

LGBT Legal Cases Marriage equality Marriage Equality Trials

Wisconsin state sealUPDATE 6:48PM ET: Bilerico reports that some counties in Wisconsin are issuing marriage licenses tonight, despite confusion over the situation stemming from the lack of an injunction against enforcing the ban. Some photos are appearing showing couples filling out marriage licenses.

UPDATE 2 7:48PM ET: Buzzfeed (linked below) reports that the state is seeking an emergency stay after some counties have issued marriage licenses. Here is the request, via Kathleen Perrin and Equality Case Files.

A federal judge has struck down Wisconsin’s same-sex marriage ban. The decision is the twentieth ruling in recent months, according to Freedom to Marry, in favor of same-sex couples.

Buzzfeed has more:

The ruling will not go into effect immediately, as Crabb โ€” appointed to the bench by President Jimmy Carter in 1979 โ€” has asked for additional materials by June 16 relating to the order she will file stopping enforcement of the ban.

Attorney General J.B. Van Hollen already has asked Crabb to stop the order from going into effect, and Crabb told the state it can supplement that motion through June 16 if they wish to do so in light of the Supreme Courtโ€™s action earlier this week denying a stay of the order striking down Oregonโ€™s marriage ban.

The opinion in Wolf v. Walker can be read here.

Thanks to Kathleen Perrin for these filings

424 Comments

  • 1. Jae  |  June 6, 2014 at 2:31 pm

    Welcome to the fallen Dominoes Club Wi…..Congrats

  • 2. Corey from Maryland  |  June 7, 2014 at 9:36 am

    Although not in the explicit wording of the order from the federal judge, I still snickered at the HuffPo's headline;

    "Federal Judge To Wisconsin: You Know 'Traditional' Marriage Was Polygamy, Right?"
    http://www.huffingtonpost.com/2014/06/06/gay-marr

  • 3. DrHeimlich  |  June 6, 2014 at 2:39 pm

    I love how the opinion quotes the dissents of Alito and Scalia in the opening. It's not the way we've come to expect — saying that Scalia was right to say that this ruling inevitably follows Windsor's logic. Instead, it's to say that this ruling isn't about branding those who disagree as bigots, it's about simple fairness.

  • 4. jdw  |  June 6, 2014 at 3:43 pm

    That was pretty nice. ๐Ÿ™‚

  • 5. Randolph Finder  |  June 6, 2014 at 2:44 pm

    Lots of coverage, but no one seems to be willing to say whether this decision allows SSM couples to walk into the county offices and get a Marriage License or not…

  • 6. Scottie Thomaston  |  June 6, 2014 at 3:05 pm

    That's because no specific order will be filed until at least June 16.

  • 7. Bruno71  |  June 6, 2014 at 3:05 pm

    There is no injunction but also no stay. I'm told that that means county clerks can choose to grant licenses if they want in the meantime, however in all likelihood a stay will come from somewhere at some point (7th Circuit if not this judge). We're probably going to be looking at some marriages performed in the interim that Gov. Walker will have to decide whether or not to recognize. And I think we all know how that'll go.

  • 8. StraightDave  |  June 6, 2014 at 3:58 pm

    We may still be 3+ weeks away from any fireworks. No injunction has yet been ordered against any state officials. Plaintiffs have until Jun 16 to offer their proposed injunction, in specific detail. Defendants have a week to respond to that, then plaintiffs get a week for reply. That takes us to Jun 30. Then the judge has to actually compose a formal order. So far, she has just said the law is wrong, ohhhhhh so very wrong. But she hasn't actually done anything about it yet.

    (I skipped ahead to page 87)

  • 9. Jim  |  June 6, 2014 at 2:49 pm

    @DrHeimlich: The judge also neatly used a Maggie Gallagher quote. The judge wrote:

    "Marriage is tied to our sense of self, personal autonomy and public dignity. And perhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienabl erights in our Declaration of Independence. Linda Waite and Maggie Gallagher, Case for Marriage (Broadway Books 2000) (stating that 93% of Americans rate 'having a happy marriage' as one of their most important goals, an ever higher percentage than 'being in good health')."

  • 10. Reformed  |  June 6, 2014 at 5:38 pm

    Well said Maggie! Maybe we have been taking everything else you have ever said out of context.

  • 11. F_Young  |  June 6, 2014 at 2:57 pm

    Fantastic!

    Wikipedia map updated: http://en.wikipedia.org/wiki/Same-sex_marriage_in

  • 12. TKinSC  |  June 6, 2014 at 11:02 pm

    WI should be tan.

  • 13. F_Young  |  June 7, 2014 at 2:14 am

    No, Wisconsin is properly navy at this point since marriages are now being performed there, no stay has been ordered yet, and no appeal has yet been filed.

  • 14. TKinSC  |  June 7, 2014 at 4:09 pm

    There has been no injunction, so there is nothing to stay.

  • 15. Saccharissa  |  June 7, 2014 at 5:32 pm

    If you agree that there is no stay, I'm baffled why you think WI should be tan. That's what tan means; there is a stay in place. If you are trying to argue that the hundreds of same-sex marriages performed today aren't officially legal yet, then you more likely are arguing that WI should still be light blue.

  • 16. Terence  |  June 6, 2014 at 2:57 pm

    With an expanding list of judgements quoting Scalia in favour of ME, I wonder how he will respond when the matter finally reaches the SC? I can't see that he'll be too enthusiastic to have his own words repeated to him, in favour of striking down the bans. Is it possible that he could persuade the court to simply decline to take the case – leaving the lower court rulings in place?

  • 17. Bruno71  |  June 6, 2014 at 3:06 pm

    He'll respond cantankerously. He'll probably claim that the national marriage equality ruling opens the door for rulings requiring compulsory gayness. Or something.

  • 18. davep  |  June 6, 2014 at 4:00 pm

    Oh heck yeah. Hey, handsome single straight guy who just moved into my building, I'm lookin' at YOU! : )

  • 19. BillinNO  |  June 6, 2014 at 6:50 pm

    I see no problem- we've had compulsive straightness since St. Augustine- at least.

  • 20. sam  |  June 6, 2014 at 3:08 pm

    I doubt the rest of the court will allow the argument to dwell on that tbh, the point has been made loud and clear.

  • 21. annajoy1  |  June 6, 2014 at 3:29 pm

    Important to note that there was news today that scientists have confirmed that there is a gay gene. So the choice of lifestyle argument is out the door!

  • 22. Matt  |  June 6, 2014 at 3:42 pm

    Maybe I'm paranoid, but a gay gene makes me nervous. How many parents might screen for that gene and decline to bring a fetus carrying the gene to term?

  • 23. Bruno71  |  June 6, 2014 at 3:47 pm

    Well most virulently anti-gay wingnuts are also anti-abortion, so…

  • 24. brandall  |  June 6, 2014 at 4:02 pm

    That was a brilliant response. I have to remember that one!

  • 25. Pat  |  June 6, 2014 at 4:06 pm

    Haha, love it!

  • 26. Steve  |  June 6, 2014 at 4:51 pm

    A position they would abandon in a nano-second if there were reliable test.

    It's really mostly about controlling women and not protecting babies. See the new Catholic scandal in Ireland where they ran a concentration camp for "illegitimate" children and "buried" over 800 of them in a septic tank.

  • 27. Mike in Baltimore  |  June 6, 2014 at 4:56 pm

    "Oh, my! What's a pregnant, anti-abortion, unmarried girl supposed to do?"

    VBG

  • 28. Rose  |  June 6, 2014 at 4:12 pm

    Matt, according to the article, it's IMPOSSIBLE to set a prenatal test to discover the specific genes as there is more than 2 and they are NOT in the same location…….also it is along the "X" Chromosome and therefore carried by the woman!!!

    A test may come sometime in the future, but by then….hopefully this issue will have been resolved!!!

  • 29. Ranjit  |  June 6, 2014 at 4:47 pm

    Well if you believe in (a) the gay gene it would have to be on the X chromosome otherwise there wouldn't be any lesbians ๐Ÿ˜‰

  • 30. annajoy1  |  June 6, 2014 at 4:42 pm

    MySent from my iPad

  • 31. annajoy1  |  June 6, 2014 at 4:43 pm

    My husband had the same thought. I still think it bodes well from a legal point of view when arguing that it is not a choice.

  • 32. Altonfree  |  June 6, 2014 at 4:52 pm

    Preliminary findings indicate there are at least two "gay genes" – and probably many more – and that environmental factors play an as yet undetermined role as well. We're not remotely close to any kind of pre-natal sexual orientation test, and the current thought is that such a test is probably impossible.

  • 33. Mike in Baltimore  |  June 6, 2014 at 4:53 pm

    Reading the article, it makes it very clear that there may be MORE than two genes (one on the X chromosome, one on the 19th pair of genes, plus one or more additional genes) AND those genes, in conjunction with multiple additional, non-genetic, factors (such as the chemicals, hormones, etc., that wash the embryo while in the womb), can cause a person to be GLBT.

  • 34. Thomas  |  June 6, 2014 at 6:11 pm

    It's genes not gene and there may be many more. There is as far as they know no on off switch, but a complicated collection of genetic traits that in the foreseeable will preclude screening for heterosexuality. In the distant future all children may be designer, but for the time being this nightmare is is but a dream.

  • 35. TKinSC  |  June 6, 2014 at 9:09 pm

    Even if the gene exists, it only goes to predisposition. If people have free will (and our law presumes that they do) then they can still choose to buck the call of their genes.

  • 36. Loren  |  June 6, 2014 at 9:27 pm

    New Mod: This is back. Completely disrespectful and unrealistic of LGBT people. "buck the call of their genes". Antagonistic. In this person's upside-down world only LGBT people need to jump through hoops and "buck their genes" but not straight people. Animus much?

    Please ban as promised. Thanks.

  • 37. Eric Koszyk  |  June 6, 2014 at 9:46 pm

    If you are on Facebook you might want to post to their Facebook page. They seem to read that more than this website.
    https://www.facebook.com/EqualityOnTrial

  • 38. Jacob Combs  |  June 7, 2014 at 6:45 am

    Thanks for the heads-up, Loren. We're looking into this.

  • 39. Ragavendran  |  June 7, 2014 at 7:10 am

    Also consider his/her own admission in a comment below that he/she is indeed the TKNSC profile that was banned. Please don't let banned members exploit loopholes and reappear in other ways. Thank you.

    "Rah row. I know my TKNSC profile has been banned, but I want to post again to bring control back to what has become uncontrollable – all these equality rulings. I feel lost. I feel a loss. I feel at a loss.

    And I miss the original Lycos. All I have is bacon gone bad and a pillow.

    Can I post on the next ruling with green tomatoes I think it's going to be a good summer.

    Fyley."

    In addition, their consistent in-your-face language that gays do have the right to marry (repeated several times) but they must simply marry someone of the opposite sex, is extremely offensive, insulting, and demeaning to us, to say the least.

  • 40. Bruno71  |  June 7, 2014 at 8:30 am

    Actually I'm pretty sure that's the fake TK you're quoting.

  • 41. Big Rick  |  June 7, 2014 at 2:46 pm

    Even if so, it should be banned as well.

  • 42. Background Gal  |  June 9, 2014 at 9:03 pm

    Agreed – if someone assumes the identity of a banned troll with intent to troll, they should be treated as the original troll. And if it's the same troll, aren't they still banned?

  • 43. montezuma58  |  June 7, 2014 at 6:20 am

    I doubt it will really deter the hardcore ME opponents. They'll just ignore it or move the goal post.

    I've never thought that choice or genetics really mattered from a legal perspective. The idea that equal protection can only be applied based on medically deterministic attributes is a childishly simplistic fantasy created by ME opponents just so they can rationalize their hate.

    Crabb has a good discussion on this in the ruling. Immutable, in the context of equal protection/due process analysis doe not mean absolutely unchangeable as opponents like to pretend. They deliberately misrepresent the concept in hopes of cutting off any debate on the subject.

  • 44. Deeelaaach  |  June 8, 2014 at 7:11 pm

    Since I have not read Crabb's ruling, I can't speak to that. But I agree with all else you've been saying. The only thing I would add is that the medico-scientific realm adds support to our cause, in particular for anti-discrimination issues since immutable traits are, well, immutable. I might as well pray to God to pray away my eye color and make it some other color.

    Side note: Religion is also in anti-discrimination laws though it is not immutable. I am not arguing for removal, just noting the difference.

  • 45. Deeelaaach  |  June 8, 2014 at 7:34 pm

    Actually, I guess I'm saying we shouldn't have to apply medically deterministic attributes. But apparently we do.

  • 46. Ragavendran  |  June 6, 2014 at 4:33 pm

    On the contrary, I think he will be delighted that his prediction came true beyond anything he could have imagined. He will gloat, oh so deliriously in his dissent, and at the same time, ferociously disagreeing with the opinion. I think Scalia saw this coming – he foresaw the potential of DOMA and wanted to be the first one to say so. Some weird self fulfilling prophecy thing.

  • 47. Reformed  |  June 6, 2014 at 5:40 pm

    Sits through it sullen, not saying nothing, and votes to uphold the constitutionality of the ban.

  • 48. TKinSC  |  June 6, 2014 at 10:56 pm

    That would be Thomas, not Scalia.

  • 49. JakeAZ  |  June 6, 2014 at 2:59 pm

    Thank you thank you thank you Judge Crabb, I know it would go this way but I am so delighted to get this news officially.

    I love my people.

    Jake
    PHX
    Badger/Cheesehead born and raised

  • 50. davep  |  June 6, 2014 at 3:25 pm

    I've read through most of it so far….wow, very thorough.

    And:

    HEIGHTENED SCRUTINY.

    Yeah!

  • 51. DrHeimlich  |  June 6, 2014 at 3:51 pm

    Indeed. This may be the most exhaustively thorough opinion of all the ones we've seen. It's truly a sound to weather any possible attack.

  • 52. Bruno71  |  June 6, 2014 at 3:59 pm

    It seems to touch on every piece of legislation or ruling regarding LGBT rights. It's highly cognizant of all the happenings post-Windsor, and puts it all in perspective alongside older case law. In it's own way, it's a real thing of beauty, although it isn't as passionate as other recent rulings.

  • 53. TKinSC  |  June 6, 2014 at 9:42 pm

    Judicial rulings aren't supposed to be passionate. So I'll grant that this one would be more likely to persuade an appellate panel (and eventually SCOTUS) than say, the PA one. (But "more likely" is still not very likely.)

  • 54. davep  |  June 6, 2014 at 11:17 pm

    Rather empty remarks, coming from someone who has never been able to offer an argument to show why any of these rulings against these marriage bans have been in error, and who repeatedly puts his foot in his mouth when trying to make a legal point.

  • 55. TKinSC  |  June 6, 2014 at 11:23 pm

    That's terrible ouch douche.

  • 56. RCChicago  |  June 7, 2014 at 4:51 pm

    I thought there had been a general agreement to ignore this guy…what will be the point of his being the tree that falls in the woods? Or the loud, obnoxious guy at the party who everyone purposely ignores. I strongly believe in speaking up but preferably when dealing with someone who is thoughtful & educated on the points of discussion.

  • 57. StraightDave  |  June 6, 2014 at 3:30 pm

    Will this be the next Pennsylvania, where a GOP governor has to decide which side his toast is buttered on? Appeals that cost real taxpayer money (as opposed to UT) get heightened scrutiny these days. Politically, I reckon WI to be roughly in the same camp as PA.

  • 58. Bruno71  |  June 6, 2014 at 3:34 pm

    But Walker is no Corbett. He's a total asshole, in addition to more popular than dirt.

  • 59. Zack12  |  June 6, 2014 at 3:37 pm

    Both are, only Corbett is in deeper trouble then Walker is.

  • 60. StraightDave  |  June 6, 2014 at 3:44 pm

    There's no politician who won't sell their soul or principles for a few votes. I can't imagine Walker is in real good shape after the recall effort. But then there's the plain morons. He might believe he's made of teflon now.

  • 61. Japrisot  |  June 6, 2014 at 4:20 pm

    Walker is only up 2 against Burke in RCP average.

  • 62. Bruno71  |  June 6, 2014 at 5:05 pm

    Any polls on Corbett/Wolf yet? I wonder if Corbett is within 20 points.

  • 63. Altonfree  |  June 6, 2014 at 5:20 pm

    A poll three days ago had Wolf leading Corbet by 25, while one two days ago had Wolf leading by 20. There's a long way to go before Novemnber, though, so I don't put too much stock in polls at this point.

  • 64. Randolph Finder  |  June 7, 2014 at 6:07 pm

    Oh no, that means in only 3 days, Corbet will be tied! ๐Ÿ™‚

  • 65. Mike in Baltimore  |  June 6, 2014 at 5:20 pm

    And since late March, Burke has been closing the gap to get to that 2 point deficit. In late March, Marquette University found Walker with a 8 point lead, and less than two weeks later, WPR/St. Norbert found Walker with a 16 point lead.

    To say polls in WI are swinging wildly might be an understatement, but Walker is not a shoo-in for another term (which doesn't help his Presidential aspirations).

  • 66. Altonfree  |  June 6, 2014 at 5:01 pm

    The Attorney General has already sworn to appeal. Walker would have to lean on the AG to get him to drop the case, if he truly wanted to let the matter end with this decision. But I think it's more likely that he'll let the AG appeal – and let the AG take the heat. That way, he can tell the left-leaning independents that he didn't fight for the ban, while telling his rabid, bigoted base that Wisconsin is still fighting for traditional marriage.

    The big difference between WI and PA was that the AG in PA refused to fight the ban, leaving the Governor the only high-profile defendant left to carry the torch. Being the least popular Governor in the country in an election year, Corbett couldn't take that much heat, so he (wisely) got same-sex marriage off his plate long before November rolls around. He's gambling that his OWN rabid, bigoted base will vote for him no matter what, and that Democrats won't be able to use same-sex marriage against him with undecideds. Hopefully, the fact that he's a terrible, terrible Governor will mean that NOTHING can save him in November.

  • 67. Rcchicago  |  June 7, 2014 at 4:53 pm

    Agree.

  • 68. Zack12  |  June 6, 2014 at 3:33 pm

    Congrats to Wisconsin!

  • 69. JayJonson  |  June 6, 2014 at 3:38 pm

    This is a beautiful and thorough decision. It demolishes all the arguments put forth by the defendants and the amici. She tears apart the old canard about banning homosexuals from marriage somehow provides and "optimal" environment for rearing children.

    Too bad that she does not enjoin the enforcement of the ban. Instead she gives both the plaintiffs and the defendants time to argue about what the orders should be and whether a stay should be granted.

  • 70. Bruno71  |  June 6, 2014 at 3:45 pm

    "Although I take no issue with defendants’ observations about the important role that federalism plays in this country, that does not mean that a general interest in federalism trumps the due process and equal protection clauses. States may not “experiment” with different social policies by violating constitutional rights."

    Also, apparently marriages are happening in Milwaukee!

  • 71. davep  |  June 6, 2014 at 4:02 pm

    What??? Got a link??

  • 72. Bruno71  |  June 6, 2014 at 4:03 pm

    http://www.joemygod.blogspot.com/2014/06/wisconsi

  • 73. TKinSC  |  June 6, 2014 at 9:34 pm

    The decision refreshingly lacked the hubris recently seen in the AR, ID and PA decisions, but still makes the same logical and factual mistakes, in particular that homosexuals are banned from marriage. They are not, in WI or anywhere else. Anybody who wishes to marry may do so, regardless of their sexual orientation, subject to the same rules, to wit, that the potential spouse must be

    – a consenting adult (because we don't force people to marry against their will or allow them to make such decisions before they're capable)
    – of the opposite sex (because that's what "spouse" means, in keeping with the understanding that marriage is primarily about children)
    – not already married (because in our tradition marriage is exclusive (though in others it is not))
    – not too closely related (because again, marriage is primarily about children, and children of related couples are at a high risk of birth defects)

  • 74. RobW303  |  June 7, 2014 at 12:43 am

    Read closer: she demolished that specious argument in several ways.

  • 75. Steve  |  June 7, 2014 at 5:44 am

    That argument has been debunked decades ago. The CA Supreme Court rejected it in 1948. People then said that people could just marry someone of the same race and everything is fine.

  • 76. Altonfree  |  June 7, 2014 at 5:17 am

    Marriage is not, and has, historically, never been about, children.

  • 77. Dr. Z  |  June 7, 2014 at 6:55 am

    Yes – as the judge pointed out, if marriage was about procreation then contraception would still be illegal for married couples.

  • 78. ebohlman  |  June 7, 2014 at 12:45 pm

    Not quite, though historically the only concern with children involved inheritance of property and succession of titles of nobility (which US law can't deal with, and has in any case become unimportant since the end of WWI). Concerns about child development are a) quite recent and b) regarded as the province of family law, not marriage law (as Judge Shelby pointed out almost half a year ago).

  • 79. JayJonson  |  June 6, 2014 at 3:42 pm

    Joe.My.God is reporting that Milwaukee County and Dane County are prepared to issue marriage licenses to same-sex couples. In Milwaukee and Madison, county offices will stay open tonight.

    Dane County Clerk Scott McDonnell told News 3 the office will remain open until 9 p.m. and staff will be brought in from other counties to help Friday and Saturday. He said he plans to begin issuing licenses at 5 p.m.

    Milwaukee County Executive Chris Abele announced that the Courthouse would remain open late Friday night to allow for same-sex marriages. “I have been waiting decades for this day to finally arrive and we won’t make loving couples wait longer than they want to to get married,” Abele said. Abele will personally pay for any overtime costs associated with keeping the Courthouse open.

    A statement from Attorney General J.B. Van Hollen said current law remains in force and he will appeal the ruling. "While today’s decision is a setback, we will continue to defend the constitutionality of our traditional marriage laws," he wrote. "I will appeal."

    Anyone know whether Wisconsin has a waiting period?

  • 80. JakeAZ  |  June 6, 2014 at 3:45 pm

    If they do, it will likely be waived.

  • 81. Bruno71  |  June 6, 2014 at 3:48 pm

    It's reportedly 6 days. It's being waived in Milwaukee.

    Marriage licenses being given out in Dane County as well.

  • 82. davep  |  June 6, 2014 at 4:06 pm

    Wow, I would LOVE to be in Madison right now. I never really knew much about that city at all until NOM brought their 'bigot bus' tour to Madison a few years ago, and the city responded with an absolutely massive counter demonstration. There were some videos of it here on this site and it was absolutely spectacular. Any of you guys remember that? Well done, Madison, and congrats to Wisconsin!!

  • 83. Bruno71  |  June 6, 2014 at 4:08 pm

    Madison may be more liberal than Berkeley from what I gather. My best friend in college grew up near there. It's apparently fun as hell too.

  • 84. Mike in Baltimore  |  June 6, 2014 at 5:39 pm

    Madison is home to the main campus of the University of Wisconsin.

    I've been a fan of Big Ten athletics (especially Indiana University) for as long as I can remember, and UW has been a Big Ten member for well over a century (since 1896). As a result, I've known about and disliked (to put it politely) anything associated with the University of Wisconsin almost as much as I've disliked Purwho University.

    Mostly, the states the Big Ten (especially the home states of the 'original' ten [MI, IN, OH, to a lesser extent IA, IL, until recently MN] ) is located in are very much more conservative than many other states. Until recently, WI seemed to be the exception. I'm glad to see that it now seems to be headed back in the correct direction.

  • 85. TKinSC  |  June 6, 2014 at 11:38 pm

    Why can't I say what I want? I'm sick of this shit! I want answers.

  • 86. Altonfree  |  June 7, 2014 at 5:18 am

    Oh, sweetie. No one cares what you want.

  • 87. KACinSTL  |  June 6, 2014 at 9:01 pm

    I think a nice idea would be for the couples (and their friends/family) to get a pool going so Chris won't have to pay several employees' overtime alone. That'd be a very expensive tab for one person to foot! It'd also show appreciation for keeping the doors open late!

  • 88. ebohlman  |  June 7, 2014 at 2:29 am

    According to some Wisconsinite posters at DKos, Abele is a multimillionaire and can easily afford it.

  • 89. Michael Grabow  |  June 9, 2014 at 7:40 am

    Reading about Chris Abele the other day warmed my heart.

  • 90. jdw  |  June 6, 2014 at 3:54 pm

    It's a lengthy, well thought out opinion. One gets the sense that walked through things in more detail that some others since this goes up to a 7th Circuit that's 7-3 GOP (with one vacancy) and 3-1 GOP in Sr Judges. I don't think quoting Scalia and Alito is aimed at them as a slap. Instead, that whole introduction on pages 2-5 reads more like an invitation to GOP judges on the 7th to come onto the right side of history.

  • 91. jdw  |  June 6, 2014 at 3:54 pm

    Typo:

    "One gets the sense that *she* walked through…"

  • 92. Bruno71  |  June 6, 2014 at 4:02 pm

    I'm very curious how the 7th will go. They'll have favorable rulings out of Wisconsin and (surely) Indiana to look at, as well as what's come out of other districts. With 2 purple states and 1 blue in its milieu, they might also take into consideration what the people there think.

  • 93. TKinSC  |  June 6, 2014 at 10:41 pm

    Isn't the whole point of these cases to strike down "what the people there think" as unconstitutional?

  • 94. jdw  |  June 6, 2014 at 11:15 pm

    Why would you return to a site that you were banned from? It only makes it clearer that you're just here to disrupt the site.

  • 95. TKinSC  |  June 6, 2014 at 11:16 pm

    I don't know anymore.

  • 96. davep  |  June 6, 2014 at 11:21 pm

    Yeah, there's a LOT that you don't know.

  • 97. Roulette00  |  June 9, 2014 at 8:47 am

    I do. You are laboring under the illusion that you are the valiant culture warrior who is out fighting the good fight, making a difference. Spoiler alert: you are not.

    You. Have. No. Power. I'm not being cruel here, just realistic. You are not making friends; you are not changing minds; you are not bending the course of the legal action happening miles away. It doesn't matter what you think.

    Heck, you might even get some people here to agree with you, but it. Won't. Change. Anything. The law will do what it does whether you are here or not. Rail if you want, but you are a mosquito who thinks she is steering the elephant. You flail about hurtfully as you realize your control is ephemeral.

    So you can either be a hurtful monster, or not. It won't change the cases before the court, because the courts aren't listening to you. If I were you I would step back and put your mind to something you can control. Say the Serenity Prayer a few times.

  • 98. Riley  |  June 7, 2014 at 7:58 am

    Going by your logic, yes, and they don't think it anymore.

  • 99. Lance  |  June 7, 2014 at 9:17 am

    It's to strike down people's past opinions on marriage for same-sex couples. The majority used to see it as constitutional to ban. Now they've changed their mind and see it as unconstitutional to ban. They're correcting themselves as times have changed.

    Regardless of the herd's changing opinions, it's been unconstitutional to deprive same-sex couples to the right to marry all along. People are just waking up to it thanks to the LGBT community showing it to the people and courts.

  • 100. Chris M.  |  June 6, 2014 at 3:54 pm

    Another one bits the dust, with heightened scrutiny under both due process and equal protection. Now the only argument is about a stay. A no-brainier, in my opinion, hadn't SCOTUS issued that inexplicable stay in Kitchen. But a little time will take care of that as well.

  • 101. TKinSC  |  June 6, 2014 at 9:23 pm

    The stay is only inexplicable if you believe SCOTUS will rule a certain way once the issue reaches them. The fact that the stay was issued suggests you should reevaluate your prediction.

  • 102. Dr. Z  |  June 6, 2014 at 3:59 pm

    "I will address defendants’ pending motion to stay the injunction after the parties have had an opportunity to file materials related to the proposed injunction. If the parties wish, they may have until June 16, 2014, to supplement their materials related to that motion in light of the Supreme Court’s decision in Geiger v. Kitzhaber not to grant a stay in that case."

    Dare we hope that NOM's attempt to stay the Oregon case may backfire on them? This is now the (fifteenth?) consecutive federal judge to strike down a mini-DOMA. The SCOTUS has considered two stay requests: after the first federal judge ruled in Kitchen, and now this week in Geiger. The most recent ruling was in our favor. Seems to me the judge is asking whether Kennedy meant to signal the end of 'gay means stay'. Of course it was just a procedural motion in Geiger and the situation probably won't change, but…we can hope.

    What a nice present THAT would be for Pride month.

  • 103. StraightDave  |  June 6, 2014 at 4:12 pm

    It was SCOTUS as a whole that denied NOM's stay, not just Kennedy – a much bigger deal. An even though it was a procedural motion, it was intended to have the effect of stopping marriages while intervention was argued. But it did not stop the marriages. As marginal as it might be, this judge thinks it counts for something. It's one more crack in the wall.

  • 104. Bruno71  |  June 6, 2014 at 4:17 pm

    Or at least she thinks that the plaintiffs may use it in some way to bolster their arguments. Whether or not she herself thinks so, we'll see in 10 days or so.

  • 105. Ranjit  |  June 6, 2014 at 4:55 pm

    The bigger difference is that Utah was appealing and will keep appealing until the bitter end, whereas Oregon was Not.
    I still think that any state which decides to continue the appeals process will be granted a stay at either th distruct circuit or SCOTUS level

  • 106. Altonfree  |  June 6, 2014 at 5:29 pm

    I'm thinking that the majority of circuit courts will take their cue from SCOTUS on Utah and issue a stay. My understanding of Judge Crabb's invitation to both parties to file motions before issuing a final order on the enforcement of her ruling is that she's trying to avoid leaving grounds for the 7th and SCOTUS to issue a stay as much as possible.

  • 107. TKinSC  |  June 6, 2014 at 10:34 pm

    If she doesn't issue a stay, the 7th will. I'm sure she knows this, and seeing as how it is a black mark on a judge's record to have a decision stayed by a higher court after it has gone into effect, I've no doubt she will stay her own decision at least for enough time to keep the 7th from having to issue an emergency stay while they consider a stay pending appeal.

    While she is equally wrong on the law as the other judges, she appears humble enough to understand it is not her place to disrupt the status quo based on her personal opinion. So kudos to her.

    I must admit I like this quote from the decision: "Justice is not to be taken by storm, but wooed by slow advances." Even if Windsor has lured Justice into the boudoir, that doesn't mean it's time to rip off the petticoat.

  • 108. Altonfree  |  June 7, 2014 at 4:36 am

    Funny how ALL of these judges are so wrong on the law! I guess we just keep appointing people who know nothing about the judicial process, when we clearly should be appointing people like you, who have a clear understanding of justice and a total comprehension of constitutional law.

  • 109. Jesse  |  June 7, 2014 at 9:34 am

    Apparently you missed her full section where she shot down the "proceed with caution" argument the defendants and amici brought? She quoted the original justice who said that (and Ginsburg quoted in a later speech) on that wooing statement as a means to say why SCOTUS didn't take up anti-miscegenation laws in 1958 immediately after Brown v Board of Education and could've theoretically addressed interracial marriage sooner than Loving v Virginia in 1967.

  • 110. TKinSC  |  June 9, 2014 at 2:19 am

    No I didn't miss it. However, I did somehow overlook the glaring contradiction in her argument. She says, almost in the same breath, that:

    1) Courts are reluctant to act without popular support.
    2) Courts must act when a case is properly before them; they cannot wait for the popular will to conform to the Constitution.

    Perhaps she should exercise a bit less of 2) in favor of 1), recognizing that the Constitution itself is a product of, and an expression of, the popular will.

    Which is sort of my point: if meanings of abstract concepts such as "liberty" and "equality" are to be expanded over time, that expansion should come from the people, and not be dictated to the people. Courts can declare when such an expansion has taken place (e.g. Lawrence), but they have no business making it happen. (And with same-sex "marriage" still illegal in 2/3 of the states, it clearly hasn't happened yet.)

    By the way, the interracial marriage case that SCOTUS could have addressed was Naim v. Naim in which a Virginia court annulled a marriage (at the request of the wife) between a Chinese man and a white woman that was legally contracted in — wait for it — North Carolina.

    (So much for the "In the South, 'spouse' meant someone of the same race" rejoinder.)

  • 111. Altonfree  |  June 6, 2014 at 5:15 pm

    Oregon was a unique case, in that the group which wanted to appeal was waiting to find out if they even had STANDING to appeal…a pretty weak position to argue from. Much as I loathe the Utah stay decision, at least you could make a real legal argument for it, given that the standing of the appealing party (the state itself) was indisputable.

  • 112. Dr. Z  |  June 7, 2014 at 8:39 am

    Sure, and you're probably right, but the fact remains that SCOTUS has only been presented with a stay request twice: after the first federal judge ruled to strike DOMA in Kitchen, and after the thirteenth judge struck it down in Geiger. One could argue that SCOTUS was being cautious and taking a wait-and-see stance in the first ruling, but you could also interpret it that the unanimous rulings in our favor have changed the legal landscape, and particularly the presumption of which side is likely to prevail on appeal.

    Since SCOTUS only issued a one line ruling without elaboration in both cases, we are left guessing about their intentions. That means each judge is free to interpret the situation for him/herself.

  • 113. JamesInCA  |  June 7, 2014 at 10:39 am

    I don't think the NOM denial says much of anything about the direction of SCOTUS on marriage. Marriage wasn't the question at issue; the question was with regard to third-party intervenors. SCOTUS has given its opinion on that recently and unambiguously in Perry.

  • 114. StraightDave  |  June 7, 2014 at 10:57 am

    The current question wasn't even about the intervention, itself. It was about staying the marriage ruling while the courts wrestled with the standing question. Far removed, to be sure, but easy enough to draw a logical line that did affect marriages, which was NOM's whole intention. .So even if SCOTUS focused strictly on the standing issue, they could not have been blind to the side effects. Obviously, a few more marriages weren't enough to get them all riled up over it and do ridiculous things

  • 115. SeattleRobin  |  June 7, 2014 at 12:58 pm

    I'm with JamesInCA, I think the recent NOM denial is irrelevant. There were so many issues present in that one long before getting to the point of even considering staying the judge's decision. It was all about timeliness, intervening, and standing. Additionally, the AG isn't appealing, so that sets it apart as well.

  • 116. Craig  |  June 6, 2014 at 4:01 pm

    I think it interesting that both Posner and the issue of public opinion and sensibility (in relation to Loving and the issue at hand) get referred to. Notably Posner is on the 7th Circuit and is a former Chief Justice of that circuit which covers Wisconsin.

  • 117. JayJonson  |  June 6, 2014 at 4:06 pm

    Couples have been married in Madison and Milwaukee!

  • 118. davep  |  June 6, 2014 at 4:09 pm

    Where are you guys hearing this? Got a link?

  • 119. davep  |  June 6, 2014 at 4:14 pm

    Ah, just saw the update in the article up above, which has some links that now include photos. Nice!

  • 120. brandall  |  June 6, 2014 at 4:15 pm

    http://www.wisn.com/news/milwaukee-county-to-acce

  • 121. brandall  |  June 6, 2014 at 4:14 pm

    The sad pandas of Wisconsin Family Action, bespokespersoned by one Julaine Appling, cried a bit and sniffled, “I don’t understand when ‘We the People’ became ‘I the Judge[.]‘”

    Read more at http://wonkette.com/550978/hipsters-complain-they

  • 122. SeattleRobin  |  June 7, 2014 at 1:06 pm

    Hehe, I liked this part even more: "As has become something of a pattern in these stories, it should be noted that a vengeful Jehovah did not hurl any lighting bolts at the courthouse or suddenly afflict the greater Madison area with plagues of boils, frogs, or Minnesota Vikings fans."

  • 123. StraightDave  |  June 6, 2014 at 4:19 pm

    This feels like the fall of the Berlin wall. Screw the rules, nobody really knows what's going on anyway. The border guards just stood aside and let the gates open even though they hadn't received specific orders. Everybody simply knew it was over and didn't try to stop people from just walking through.

  • 124. JamesInCA  |  June 6, 2014 at 5:35 pm

    That kind of sums it up well. Seems to me the clerks in WI who are issuing license are on shaky ground without an injunction or an order. But it doesn't seem to matter.

  • 125. Fr. Bill  |  June 6, 2014 at 5:43 pm

    Her well reasoned opinion (especially about marriage as a fundamental right and quoting Maggie on it's inherent importance to a person's identity and well-being), her intentional refusal to issue a stay pending a sensible briefing schedule, and her citing SCOTUS's refusal to issue a stay in the Geiger case (Oregon) may point to the end of "gay means stay". StraightDave is right about it being like the Berlin Wall (I was in Germany then). Reality is not an emergency.

  • 126. TKinSC  |  June 6, 2014 at 9:05 pm

    A fair comparison. So the question is, if the rules are going to be ignored, why wait for a court decision? Why didn't these clerks start issuing licenses last week, or last year, or 10 years ago?

  • 127. davep  |  June 6, 2014 at 10:56 pm

    Oh my! Ending unjust discrimination a few days before being ordered to do so!

    Is that all you have left to complain about?

  • 128. TKinSC  |  June 7, 2014 at 1:15 am

    What I'm saying is, if they're not going to respect the fact that an injunction hasn't been issued yet, why did they wait at all? Why not "end unjust discrimination" 10 years ago?

    This sort of "screw the rules" mentality is going to come back to bite them. Like in a few days when the licenses are deemed invalid even for federal purposes.

    As was said elsewhere, the clerks are nothing but glorified paper-pushers. Their job is to follow the law, and unless and until an unstayed injunction is in effect the law in Wisconsin is that only opposite-sex couples can be issued marriage licenses.

  • 129. Altonfree  |  June 7, 2014 at 4:43 am

    Their interpretation of "the rule" is that since the marriage ban was ruled unconstitutional (which it was, by the way), they are free to choose to enforce the ban or not. Without a judicial ruling on the ban, they didn't feel they had that authority before. Your disapproval of their actions is totally insignificant; they are free to act on the fact that banning same sex couples from obtaining marriage licenses is now unconstitutional…as it is in 19 other states and counting.

    Man, your grapes are AWFULLY sour.

  • 130. Roulette00  |  June 7, 2014 at 11:36 am

    Most clerks are bound by oath to uphold the laws and constitutions under which they operate. They have been explicitly told that the operative law is unconstitutional. I don't see why you are confused. Why do they need a soecific instruction to act?

  • 131. TKinSC  |  June 7, 2014 at 4:16 pm

    "They have been explicitly told that the operative law is unconstitutional."

    As they have in Utah, Virginia, Texas, Michigan, and a few other states. Yet they are not issuing licenses in those states.

  • 132. Roulette00  |  June 8, 2014 at 1:04 pm

    First: in some of those states (NM, PA, CA) the clerks were in fact issuing same-sex licenses prior to court orders, so yes: it happens.

    Second: an injunction only tells the parties what NOT to do, eg, you are forbidden to enforce this law. I cannot think of any SSM court order where the parties needed a direct court order to start issuing licenses in obedience to the Constitution.

    Third: politics. The State has not (yet) been enjoined from enforcing the ban, so it is within their rights to discipline the clerks who are handing out licenses (depending on how the clerks' hierarchy is structured; every state seems to do it differently). It would be a touchy thing for an elected official to do, given that SSM is popular with the electorate. What you're seeing is the spineless officials trying to make the courts be the villain so if the ban is reinstated, they (the officials) have clean hands. So I believe they could, if they wished, continue to enforce the law as written, but they aren't.

  • 133. Ray  |  June 7, 2014 at 7:25 am

    I, I can remember (I remember)
    Standing, by the Wall (by the Wall)
    And the guns shot above our heads
    (over our heads)
    And we kissed,
    as though nothing could fall
    (nothing could fall)
    And the shame was on the other side
    Oh we can beat them, for ever and ever
    Then we could be Heroes,
    ust for one day

  • 134. Matt227  |  June 10, 2014 at 10:02 am

    Great analogy.

  • 135. Bruno71  |  June 6, 2014 at 4:20 pm

    "some counties in Wisconsin are issuing marriage licenses tonight, despite confusion over the situation stemming from the lack of an injunction against enforcing the ban"

    These (2) county clerks see a federal ruling as the go-ahead. There is no specific law that they need an injunction to do so, although I would wonder if they might not get some orders from the AG if he indeed is the one that controls how marriage licenses are distributed in Wisconsin. If it's anything like in California, he should be able to tell them to stop. But it may not be structured that way.

  • 136. brandall  |  June 6, 2014 at 4:26 pm

    AP is saying:

    There was confusion over whether the federal judge’s order also stopped enforcement of current law, given that she gave both sides more time to describe exactly what they wanted her to block in the law.

    I understand the stay is pending responses, but I don't quit understand what the county clerks think is missing in the order. Any thoughts?

  • 137. Bruno71  |  June 6, 2014 at 4:29 pm

    I think without a specific stay, these 2 county clerks have everything they needed to go ahead and start marrying couples. Technically this order says there will be more litigation to decide on a stay, but it doesn't address the situation in the meantime. Therefore, they feel OK interpreting the ruling to mean that they have to marry couples in an equal manner.

  • 138. TKinSC  |  June 6, 2014 at 8:56 pm

    There is no injunction (at least not yet) and hence nothing to stay. Wisconsin law remains in effect, and thus any marriage licenses currently being issued to same-sex couples are as invalid as the ones issued in Pennsylvania last year.

    No need for the WI AG to seek an emergency stay from Judge Crabb; he should simply use existing remedies under state law to deal with rogue county clerks.

  • 139. Dr. Z  |  June 7, 2014 at 8:29 am

    Naah. Once SSM bans are struck down by SCOTUS all these marriages will be considered valid. If DOMA is considered unconstitutional then, it will have been considered unconstitutional now as well. Any challenges to their validity will be dismissed as moot.

  • 140. TKinSC  |  June 7, 2014 at 4:19 pm

    I don't think that's true. Even if the bans are eventually struck down, the "marriages" that took place without a court order enjoining enforcement of the bans will still be considered invalid when entered into. Even by Eric Holder.

  • 141. Dr. Z  |  June 8, 2014 at 7:58 am

    Assuming SCOTUS strikes down the bans on equal protection and/or due process grounds, the SCOTUS will not have found a right to SSM under the constitution that begins from the moment that decision was released. Rather, the right in question will have been there all along and it just took until then before the courts realized that it applied. The DOMA laws were NEVER constitutional, and the states had no right and no legitimate interest in denying gay and lesbians to marry the spouses of there choice. The marriages that took place prior to the court decision are therefore valid, just as couples who married prior to Windsor were permitted to file retroactively for tax refunds (even though these marriages were not considered valid by the federal gov't at the time they were entered.)

  • 142. TKinSC  |  June 8, 2014 at 9:27 am

    Under that logic, any marriage license issued anywhere in the country might be "proven valid" one day. No, to be valid, a marriage license must be authorized by law — or a valid injunction –at the moment it's issued. (The validity of the injunction might be subject to future determination, but if there is no injunction at the time the license is issued, the injunction cannot be issued later and made retroactive.)

    The federal government simply applied the same retroactive tax rules they always had to "marriages" that were valid in the prior years. The only difference is the fact that the "marriages" were valid in the prior years is now recognized by the federal government.

  • 143. skrekk  |  June 8, 2014 at 10:01 am

    Read the last paragraph of the ruling. The judge sure seems to think that her ruling is an injunction:
    "I will address defendants’ pending motion to stay the injunction after the parties have had an opportunity to file materials related to the proposed injunction. If the parties wish, they may have until June 16, 2014, to supplement their materials related to that motion in light of the Supreme Court’s decision in Geiger v. Kitzhaber not to grant a stay in that case."

    In other words there's been lots of misreporting on this. There is an injunction.

  • 144. DrPatrick1  |  June 8, 2014 at 11:08 am

    Though she writes about the proposed injunction. I'm not sure this quote resolves the controversy.

  • 145. TKinSC  |  June 8, 2014 at 11:25 am

    Right. There is going to be an injunction (that will likely be stayed immediately) as soon as both parties give their input on what injunction they feel is appropriate given the memorandum opinion and judgment. But as of this moment there is no injunction, and thus no more legal authorization for marriage licenses to be issued to same-sex couples than there was before the opinion was issued.

    My only question is why doesn't the WI AG seem to realize that he has the same authority he had before to stop the licenses and/or punish the issuers. This is just like PA last year.

  • 146. Roulette00  |  June 8, 2014 at 1:17 pm

    As I posted above, I suspect the reason you are seeing these marriage licenses being handed out is that elected officials are not enforcing the ban or disciplining rogue clerks; it is too hot, politically, to touch an issue that is popular with a majority of the electorate. Yes, they can enforce the ban, as they have not been enjoined from it, but the politicians are trying to play it both ways: woe are we, we cannot stop this terrible thing; courts save us, etc.

  • 147. skrekk  |  June 8, 2014 at 3:32 pm

    Roulette, remember that the clerks are elected officials and thus have an independent obligation to the federal and state constitutions. It really doesn't matter what the governor or AG think, per se.

    While it's no surprise that the clerks in Dane and Milwaukee county are issuing licenses, it also no surprise at all that Waukesha county isn't.

  • 148. TKinSC  |  June 8, 2014 at 11:44 pm

    I think you may be right about this. The proper response for these officials is to tell the people:

    "This is the law that you, the people, passed. We are going to defend this law in court, and we are going to enforce it until a court issues a final and unappealable order enjoining us from doing so. If you, the people, feel the law should be changed, you need to contact your legislators; you shouldn't expect us AGs not to do the job you elected us to do."

    I would certainly vote for someone who said that, even if I loathed the law he was defending.

  • 149. Roulette00  |  June 9, 2014 at 8:32 am

    Actually, I elect an attorney general to know the law better than I do. If the AG says a law cannot be defended under the necessary standard of review, that's what she's getting paid to decide. The state can and should enforce the law until it is overturned.

    Meanwhile, the judge should be wise enough to rule on that matter whether or not the AG defends it. Judges are not paid to rubber-stamp every plaintiff's case.

  • 150. skrekk  |  June 8, 2014 at 11:51 am

    Well, it's pretty clear that the aspect of the injunction she's referring to in the paragraph above are all the statutes which are impacted by marriage (ie, the request for specific relief).

    But as a matter of law for the time being, the ban is unconstitutional as are any statutes which rely on the gender restrictions of that ban for their interpretation.

  • 151. DrPatrick1  |  June 8, 2014 at 11:06 am

    Dr Z, I think TK does have a point here. Your interpretation, as I understand it, is exactly correct, in those cases where there is an injunction enjoining the government from enforcing the ban. In WI, that step has not yet happened. Thus there might still be controversy re those marriages in WI. However, the situation is different in UT etc, where an injunction was issued before the stay. In those situations, a favorable SCOTUS decision would ultimately end any controversy re their legitimacy. However in WI, there might continue to be a dispute, not whether they have a right to marriage , post SCOTUS ruling, but whether marriage licenses issued without an injunction are valid. This situation happened in AR, before the judge amended his ruling to clarify the injunction extended to all laws which barred issuing of licenses to same sex couples otherwise similarly situated as opposite sex couples and made the amended ruling retroactive to the date of the first ruling.

  • 152. Dr. Z  |  June 8, 2014 at 9:53 pm

    And I expect the judge in WI will make her injunction retroactive as well, for the reasons I already outlined.

  • 153. TxLawyer  |  June 8, 2014 at 10:03 am

    Remember … Court orders are not retroactive. They are prospective . Thus what they grant or deny is effective only from that point forward.

  • 154. KarlS  |  June 8, 2014 at 2:37 pm

    Well, that explains why no conviction has ever been reversed years after the fact by discovery of previously unknown evidence. Oh, wait…………….

  • 155. TKinSC  |  June 9, 2014 at 12:09 am

    It certainly explains why they aren't released from jail before the conviction is reversed, even though they were innocent all along.

  • 156. JayJonson  |  June 6, 2014 at 6:21 pm

    The Dane County clerk did get advice from the Attorney General's office not to issue licenses, but he said, he didn't have to take their advice.

  • 157. Bruno71  |  June 6, 2014 at 6:57 pm

    Sweet. I hope he's not just cocky.

  • 158. TKinSC  |  June 6, 2014 at 9:00 pm

    That's rather like a guy charged with murder saying he doesn't have to follow his lawyer's advice to remain silent. Sure, he doesn't have to follow the advice, but that doesn't mean there won't be consequences.

  • 159. Altonfree  |  June 7, 2014 at 4:52 am

    Yes, like the terrible consequences which befell D. Bruce Hanes, the Montgomery County, PA Register of Wills, who began issuing marriage licenses to same sex couples because he believed the ban on marriage was in violation of the state and national constitution. Those consequences were dire: he continues to work as the Register of Wills for Montgomery Country…AT THE SAME SALARY! Can you imagine?!?

  • 160. JWinKY  |  June 7, 2014 at 6:14 am

    Additionally these clerks have the immediate protection of a Federal Courts opinion of a State law being declared unconstitutional. There is ZERO chance these clerks are in any legal jeopardy for ignoring a state law that violates the Ferderal Constitution. What the order will do is to set the way in which the State and the balance of the clerks MUST behave in ignoring the state law. She might decide they will ignore immediately, ignore next week or next month. She may decide the AG and Gov must roll out the red carpet. She can decide how to those who oppose her ruling WILL behave. The absence of an order or a stay in the interim seems to give plenty of cover to Clerks who wish to immediately recognize her ring.

  • 161. JWinKY  |  June 7, 2014 at 6:16 am

    Her *ruling*.

  • 162. SeattleRobin  |  June 7, 2014 at 10:18 pm

    The Wisconsin setup sounds similar to New Mexico if I'm remembering correctly. There the AG also advised against issuing licenses, but it was just advice, not a binding order because of how their laws work.

  • 163. ebohlman  |  June 7, 2014 at 11:30 pm

    In NM, though, there was a serious question as to whether or not state law actually barred issuing marriage licenses to same-sex couples, as the plain-language reading of most of their statutes shed no light on the matter. The NMSC eventually ruled that the statutes did in fact restrict marriage but that this restriction contravened the State Constitution, and issued an order that was retroactive to at least 2004 (meaning that until the OR decision, NM was technically both the first and the last state to have achieved marriage equality, with 16 others in between!).

    IL was county-by-county for the last three months, though in this case our AG's opinion, again non-binding, was that county clerks could go ahead if they wanted to. AR was also briefly county-by-county. WI is probably not going to be the last state where this happens.

  • 164. DrPatrick1  |  June 8, 2014 at 11:15 am

    I believe NM AG's opinion was that the law was ambiguous, and likely did not bar same sex couples from marrying, but that the courts should resolve this controversy before the clerks should start issuing licenses. This opinion, I believe, was prior to any ruling from a court, not subsequent to a court's injunction.

  • 165. SeattleRobin  |  June 8, 2014 at 9:41 pm

    Right, but my point was that some clerks decided to issue licenses despite the advice from the AG. So the fact that some clerks in Wisconsin are doing it now, without or against advice from their AG isn't an isolated thing. And while I don't know any details about the laws concerning clerks in any of the states, it's obviously not always wrong to ignore the AG, or to require his/her direct input. It varies from state to state.

    It makes me nervous that the two counties appear to be jumping the gun, because I prefer that everything is legal and tidy in order to avoid unnecessary setbacks later on. But whether or not it's a bad idea in Wisconsin depends on Wisconsin laws and the role of clerks.

  • 166. Roulette00  |  June 6, 2014 at 4:26 pm

    That was not an opinion. It was an autopsy.

  • 167. TKinSC  |  June 6, 2014 at 11:25 pm

    It really not the kind of way I would out it today.

  • 168. Rcchicago  |  June 7, 2014 at 5:11 pm

    That is a perfect description. Thank you.

  • 169. Ryan K.  |  June 6, 2014 at 4:42 pm

    Well if it sticks, it will be nice to M&E so quickly out of the 10s and into the 20s as Wisconsin would be the 20th state to permit marriage equality. I'm a bit surprised that counties would issue the marriage licenses without an order by the judge enjoining the state from enforcing the state level DOMA. Knowing Walker will appeal, in my opinion this goes to the 7th and they will stay the future order given the SCOTUS decision in Kitchen with Utah/10th Circuit. In the meantime, cheers to Wisky!!!

  • 170. sam  |  June 6, 2014 at 4:58 pm

    I notice no one has yet commented that the ruling cites Wikipedia…

  • 171. JayJonson  |  June 6, 2014 at 6:23 pm

    But only to the observation that George and Martha Washington did not procreate. If the father of the country did not procreate, then surely proceation is not a requirement of marriage.

  • 172. TKinSC  |  June 6, 2014 at 10:21 pm

    If George Washington hadn't been busy procreating a country, perhaps he would have found the time to procreate a human being. How was George supposed to know about the Boston Tea Party when he got married? And at any rate, how was whatever British colonial marriage license clerk they had back then supposed to know whether or not George would have kids one say?

    No, procreation is not a requirement for marriage, any more than having a car is a requirement for a driver's license. But it is still the primary reason for the existence of the institution, and same-sex couples are biologically incapable of meeting that requirement. Thus it makes no more sense to issue a marriage license to a same-sex couple than it does to issue a driver's license to a blind quadriplegic.

  • 173. davep  |  June 7, 2014 at 1:00 am

    "Meeting that requirement"? You yourself admitted that it isn't a "requirement" just one sentence before your wrote that. Fail.

  • 174. TKinSC  |  June 7, 2014 at 1:19 am

    Touché. Change the second "requirement" to "criterion".

  • 175. Altonfree  |  June 7, 2014 at 4:58 am

    Historically, the primary reason for marriage has been about property, not children. The Christian right has consistently redefined marriage since this whole thing became an issue.

    Your argument that gay people can't have children will get a big laugh at the party I'm attending later today, hosted by two male friends of mine. Their biological children will really enjoy that, so thanks!

    Oh, wait…did you mean that divorced people can't remarry, since their children won't be biologically the children of BOTH parents? Good luck selling that in 2014, Grandpa.

  • 176. SeattleRobin  |  June 7, 2014 at 10:27 pm

    About property, and securing lines of succession. Which was about procreating. But since the US has never had nobility, people begetting an appropriate heir lost importance.

  • 177. Sagesse  |  June 6, 2014 at 5:24 pm

    I'm pleasantly confused. Ordinarily it is the injunction that is stayed. If there is no injunction… there is nothing to stay? By drawing out the injunction over the next few weeks, maybe the judge is just letting the clock run. The state asks the judge to stay… something. The judge asks for a response, then denies the stay. Wash, rinse, repeat with the 7th, then SCOTUS. By now, no one is really responding to an 'emergency'. Not sure it will be successful in slowing things down while couples get merrily married. But it's a clever idea.

  • 178. Bruno71  |  June 6, 2014 at 6:56 pm

    The last few district court judges don't seem to be cowed by SCOTUS' stay imposition in Kitchen at all. Right now we might or might not see the state ask the District Court for an emergency stay and get denied, then ask the 7th Circuit, and get a "come back to us when she rules on June 16th," and then they'll either be granted a stay there or by the 7th Circuit. I foresee marriages continuing in those 2 counties for a few days, maybe up until the 16th.

  • 179. StraightDave  |  June 6, 2014 at 7:46 pm

    til July 1 in my optimistic book/interpretation of page 87. Although the AG seems to be requesting an emergency stay because the judge is "taking her sweet time". I really think it's a total crap shoot from here on out. We're in unmarked territory

  • 180. Bruno71  |  June 6, 2014 at 8:27 pm

    I'm just picturing SCOTUS getting another "emergency stay stop teh gay!" request before them and just rolling their proverbial eyes in annoyance.

  • 181. TKinSC  |  June 6, 2014 at 9:18 pm

    Why would SCOTUS be annoyed by a request they've granted in the past? In any case, the stay will be granted by Judge Crabb or in any case the 7th Circuit, so SCOTUS won't have to spend any time repeating what they did in Kitchen?

  • 182. TKinSC  |  June 6, 2014 at 9:19 pm

    (typo: period not question mark at the end)

  • 183. ebohlman  |  June 7, 2014 at 2:56 am

    I don't see how any Federal court has jurisdiction over what the Dane and Milwaukee clerks are doing; Since there's no final order in Wolf, I can't see anything that really distinguishes their actions from the SF and Portland officials in 2004 or the clerk in PA last year as far as jurisdiction is concerned; those were all treated as matters of State law.

    It seems to me that Van Hollen needs to be pursuing this in State court, not Federal.

  • 184. RobW303  |  June 7, 2014 at 1:02 am

    Kitchen was one of the first rulings, so a SCOTUS "precedent" at that time, before the issue had been so thoroughly dissected by court after court, so the time is due (in fact, overdue) to retest the waters, given that the rationale for granting a stay at that time was weak. The lower court justices have repeatedly shown there is real harm to the couples in being denied marriage (or recognition of their marriages), while the states have been unable to demonstrate plausible harm to anyone else.

  • 185. TKinSC  |  June 7, 2014 at 4:27 am

    If those waters are to be tested again, they should be tested by the plaintiffs. The lower courts should continue to grant the stays until SCOTUS rules otherwise.

  • 186. Jesse  |  June 7, 2014 at 12:32 pm

    Stays are granted if the states can show tangible harm to the state if same sex couples wed. At nearly every request for a stay, State's argue that the confusion will harm couples during their appeal. Oh the second part of the stay is the State claiming they have likelihood in winning on appeal that the judge got it wrong. This is the most comprehensive opinion we have read to date with numerous precedent cases for rationale and reasoning. Good luck to Walker and Co., regarding that…

  • 187. skrekk  |  June 8, 2014 at 11:58 am

    No court to date has found that the states suffer any harm from these marriages, or that they have any likelihood of success in their appeals. The only reason some courts have granted an unwarranted stay is because SCOTUS issued a stay in the Kitchen case, even though they gave no explanation for why they did so.

  • 188. DrPatrick1  |  June 8, 2014 at 3:27 pm

    Optimistic prediction, for sure, but I hope you are right. I'd bet money you are wrong, however. The district court should, and will likely, deny the stay request on the ultimate injunction. Then it will go to the 7th, who will likely grant the stay, pending appellate review.

    Oh how I wish a circuit would deny the stay and once again force SCOTUS' hands. I cannot see how the usual criteria for a stay has been met in these cases, and find it extraordinary that one was granted by SCOTUS. Force them to rule, and keep on ruling, until this issue is resolved!

  • 189. TKinSC  |  June 8, 2014 at 11:32 pm

    If, hypothetically speaking, a stay were denied by a circuit, it would almost assuredly be granted by SCOTUS, and I can't imagine a single judge even at the district level failing to include an immediate stay on any injunction after that.

    I think one can safely conclude from the stay SCOTUS already granted that they are going to uphold state bans on same-sex "marriage" or, at the very least, that they are uncertain about whether to strike them down and recognize the legal chaos that would result if they were to overturn an unstayed injunction a year or two later.

    Given Judge Crabb's judicial temperament, and the stay already granted by SCOTUS, I would be highly surprised if she didn't grant the stay. (She did mention the denial of the Oregon stay as something worth considering, but I think we can all agree that standing considerations doomed that one, and are not at issue here.)

  • 190. StraightDave  |  June 6, 2014 at 6:51 pm

    Wow!! I just love Judge Crabb's surgical dismantling of years of pure nonsense from defendants and apologists of every flavor. Its precision and thoroughness are the sort of qualities that ought to play well to higher courts, even more so than the elegant prose we also love to read. This stuff was written to be cited over and over. She definitely covered all the bases. There is nothing plausible left to say in defense – not that there ever was but this definitely puts a stake thru its heart.

    Again, Gov Walker – Let it go! If not, then your electoral fate awaits. Sure, make my day. The facts on the ground seem to not be waiting for you

  • 191. Bruno71  |  June 6, 2014 at 7:01 pm

    Ugh. Bigot Schuylkill County PA clerk files motion to intervene in Whitewood vs. Wolf: http://www.equalitypa.org/wp-content/uploads/Moti

  • 192. StraightDave  |  June 6, 2014 at 7:39 pm

    "to obtain clarity about her official duties", my ass. This is not how one goes about doing that. Just ask your boss or the state's AG for legal advice. That's what they're there for.
    Sorry, honey, this one is also stuffed and hanging on the wall. Not timely. see NOM v Everybody

  • 193. Steve  |  June 6, 2014 at 7:43 pm

    She is a glorified paper pusher. There is nothing complicated about her job. I hate that clerks act like it's this hugely important office with tons of responsibilities and decisions. In reality, they are just senior office administrators.

  • 194. TxLawyer  |  June 6, 2014 at 8:14 pm

    Here in Texas, District Clerks (and County Clerks) oversee budgets of millions of dollars… The District Clerks staff in Houston alone is over 200. So they are a bit more than glorified paper pushers…

  • 195. TKinSC  |  June 6, 2014 at 9:50 pm

    Well, one can argue that her job is to follow state law unless it is unconstitutional, and that a single district court judge does not have final authority over the answer to that question, so she has standing to seek clarification from a higher court.

    I'm not sure that argument will fly after the SCOTUS denial of a stay in Geiger, as NOM claimed to represent a county clerk, but it's worth noting that NOM refused to name the clerk, unlike here where the clerk is the one making the motion in her own name.

  • 196. TKinSC  |  June 6, 2014 at 11:12 pm

    It's also worth noting that the Virginia appeal was brought by county clerks (with the blessing of the AG, who apparently believes the ban deserves a defense while feeling it his duty to participate in the attack on it).

  • 197. Reformed  |  June 7, 2014 at 1:44 am

    How interesting that everyone NOM claims to represent cowers behind anonymity. It is almost as if they might be fictitious.

  • 198. Altonfree  |  June 7, 2014 at 5:06 am

    Seeing as how the state declined to appeal the case, one district court judge apparently DOES have the final authority over whether state law is constitutional…or don't you believe in the state's right to define marriage when it's at odds with your wishes?

    If the woman refuses to issue marriage licenses to same-sex couples, she is in clear violation of state law, and should be canned.

  • 199. TKinSC  |  June 7, 2014 at 4:39 pm

    "Seeing as how the state declined to appeal the case…"

    Anyone with standing can appeal, not just the governor or AG. This clerk believes she has standing. We'll see if she's right.

    "If the woman refuses to issue marriage licenses to same-sex couples, she is in clear violation of state law, and should be canned."

    She is currently issuing licenses to all couples, as she (unlike the two clerks in Wisconsin) respects the law as it currently stands.

  • 200. Bruno71  |  June 6, 2014 at 8:30 pm

    I think it's a waste of time and taxpayer money. Even if she has a much better shot at "standing" than NOM in Oregon, it's a euphemism to say it's not timely. This is like trying to put toothpaste back in the tube at this point. She'd have better luck putting her job on the line by refusing to marry gay couples and seeing if she can litigate the fallout.

  • 201. Zack12  |  June 6, 2014 at 8:44 pm

    Another issue for her is this. Corbett does NOT want this as an issue for his already tough reelection campaign.
    She'll find out really fast how expendable she is.

  • 202. Stefan  |  June 7, 2014 at 2:34 am

    It does not appear she is requesting a stay of the ruling, nor does she want it overturned really, just clarified.

  • 203. Bruno71  |  June 7, 2014 at 8:11 am

    Maybe she's at least intelligent enough to know that she needs to be a party to the case in order to request a stay? Dare we make that assumption?

  • 204. TKinSC  |  June 6, 2014 at 11:13 pm

    It's within 30 days. It's still timely. (She didn't know Corbett would abandon the defense.)

  • 205. Zack12  |  June 6, 2014 at 8:31 pm

    Let's hope she gets the same response the clerk in CA got.

  • 206. TKinSC  |  June 6, 2014 at 8:46 pm

    Anybody drink Yuengling? The brewery (America's oldest) is located in Pottsville, the county seat of Schuylkill County.

  • 207. TKinSC  |  June 6, 2014 at 11:31 pm

    They also serve corn dogs with cow lip casings at the county fair there I think if I remember correctly they do.

  • 208. Rose  |  June 7, 2014 at 12:39 am

    If the law was Constitutional in the first place…….the Judge would have ruled so………and she DOESN'T need clarification if she has already been issuing marriage licenses to qualified couples!!!

    I wonder if she has read Judge Crabb's ruling regarding Wisconsin's ban? If she hasn't, she should!!!

  • 209. StraightDave  |  June 6, 2014 at 7:31 pm

    Crabb even cites Baker in support of her opinion!! This is so awesome. This lady sure does her homework. Baker is on our side!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Holy shit.

    The MN Supreme Court, which took the trouble to publish a written opinion in Baker v Nelson includes this gem:

    " Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment."

    SCOTUS, by its summary dismissal, implicitly endorsed every word of it. And now, Kennedy's "later generations can clearly see"…. [the full extent of that]

  • 210. TKinSC  |  June 6, 2014 at 10:09 pm

    "SCOTUS, by its summary dismissal, implicitly endorsed every word of it."

    No, it implicity endorsed only the holding that restricting marriage to its traditional definition does not violate the Fourteenth Amendment. But that is enough to distinguish Baker from Loving.

    Kennedy's "later generations" comment in Lawrence applied to a situation where anti-sodomy laws had been repealed in all but 16 states, and in some of those were held to violate state constitutional protections, and in the rest were rarely if ever enforced. That can hardly be extended to a situation that existed everywhere in the country at the time the Fourteenth Amendment was passed (and millennia before and 135 years after) and still prevails in 34 states (counting the ones that have been overturned by federal courts without appeal). "Later generations" means later generations of people, not later generations of judges imposing their personal opinions on the people.

  • 211. TxLawyer  |  June 6, 2014 at 8:03 pm

    Well …. now we get to see what Posner has to say!

  • 212. Ragavendran  |  June 6, 2014 at 8:31 pm

    Some of you might have posted these quotes already, but I felt the need to consolidate several points of this opinion. I have never seen a more detailed, in-depth opinion. She discusses several points that other courts haven't tackled. It's going to take a lot to reverse this one!

    (1) The Supreme Court’s silence [regarding Baker] [in Windsor and Hollingsworth] is telling. Although the Court did not overrule Baker, the Court’s failure to even acknowledge Baker as relevant in a case involving a restriction on marriage between same-sex persons supports a view that the Court sees Baker as a dead letter. Not even the dissenters in Windsor suggested that Baker was an obstacle to lower court consideration of challenges to bans on same-sex marriage.

    (2) Extending marriage to same-sex couples does not require “approval” of homosexuality any more than the Supreme Court “approved” of convicted criminals or deadbeat dads when it held in Turner and Zablocki that the right to marry extends to prisoners and fathers who have failed to make child support payments.

    (3) Although I take no issue with defendants’ observations about the important role that federalism plays in this country, that does not mean that a general interest in federalism trumps the due process and equal protection clauses. States may not “experiment” with different social policies by violating constitutional rights.

    (4) To the extent that defendants mean to argue that a special rule should apply to the issue of same-sex marriage, they cite no authority for that view. There is no asterisk next to the Fourteenth Amendment that excludes gay persons from its protections.

    (5) The Supreme Court, in Windsor, declined expressly to rely on federalism as a basis for its conclusion that DOMA is unconstitutional. (“[I]t is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”). See also (Scalia, J., dissenting) (“[T]he opinion has formally disclaimed reliance upon principles of federalism.”).

    (6) The Supreme Court discussed DOMA’s encroachment on state authority as evidence that the law was unconstitutional, not as a reason to preserve a law that otherwise would be invalid. In fact, the Court was careful to point out multiple times the well-established principle that an interest in federalism cannot trump constitutional rights.

    (7) Defendants’ observation that the Supreme Court has not yet recognized a “right to same-sex marriage” is both obvious and unhelpful. When the Court struck down Virginia’s anti-miscegenation law in Loving, it had never before discussed a “right to interracial marriage.” If the Court had decided previously that the Constitution protected marriage between same-sex couples, this case would not be here. The question is not whether plaintiffs’ claim is on all fours with a previous case, but whether plaintiffs’ wish to marry someone of the same sex falls within the right to marry already firmly established in Supreme Court precedent.

    (8) If it were true that the Supreme Court viewed procreation as a necessary component of marriage, it could not have found [in Griswold] that married couples have a constitutional right not to procreate by using contraception. Instead,the Court described marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

    (9) The Supreme Court [in Lawrence] went on to state that its holding “should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” More generally, the Court reaffirmed the principle that, in determining the scope of a right under the due process clause, the focus should be on the nature of the decision at issue and not on who is making that decision. If the scope of the right to marry is broad enough to include even those whose past conduct suggests an inclination toward violating the law [Turner] and abdicating responsibility [Zablocki], then it is difficult to see why it should not be broad enough to encompass same-sex couples as well.

    (10) I conclude that Glucksberg is not instructive because that case involved the question whether a right to engage in certain conduct (refuse medical treatment) should be expanded to include a right to engage in different conduct (commit suicide), “two acts [that] are widely and reasonably regarded as quite distinct.” In this case, the conduct at issue is exactly the same as that already protected: getting married. The question is whether the scope of that right may be restricted depending on who is exercising the right.

  • 213. Ragavendran  |  June 6, 2014 at 8:32 pm

    (11) Past practices cannot control the scope of a constitutional right. If the scope of the right is so narrow that it extends only to what is so well-established that it has never been challenged, then the right serves to protect only conduct that needs no protection.

    (12) Although amici may believe that a particular sex is more “essential” to marriage than a particular race, this may reveal nothing more than amici’s own views about what seems familiar and natural. Cf. John Stuart Mill and Harriet Taylor Mill, “The Subjection of Women,” (“Was there ever any domination which did not appear natural to those who possessed it?”).

    (13) Defendants say that Wisconsin law does not interfere with those plaintiffs’ marriage rights because Wisconsin has done nothing to invalidate their marriages or to deprive them of benefits that they could receive from the state where they were married. This argument is bewildering.

    (14) However, because this case is likely to be appealed, before I consider the state’s asserted interests for these laws, I will consider plaintiffs’ alternative argument that they are entitled to heightened protection under the equal protection clause, in the event the Court of Appeals for the Seventh Circuit disagrees with my conclusion regarding the scope of plaintiffs’ rights under the due process clause.

    (15) The equal protection clause “require[s] the state to treat each person with equal regard, as having equal worth, regardless of his or her status.” Stated another way, it “requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” (quoting Scalia).

    (16) It may be that Windsor’s silence is an indication that the Court is on the verge of making sexual orientation a suspect or quasi-suspect classification. Cf. Frontiero v. Richardson, 411 U.S. 677, 683 (1973) (plurality opinion) (stating for first time that sex discrimination should receive heightened scrutiny and relying on previous case in which the Court had “depart[ed] from a ‘traditional’ rational-basis analysis with respect to [a] sex-based classificatio[n]” but the Court did not say expressly in previous case that it was applying heightened standard of review). Alternatively, it may be that Romer and Windsor suggest that “[t]he hard edges of the tripartite division have… softened,” and that the Court has moved “toward general balancing of relevant interests.”

    (17) It is the reasons for the tradition and not the tradition itself that may provide justification for a law. (“[L]egislation must advance a state interest that is separate and apart from the classification itself.”) “[W]hen tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements.”). Otherwise, the state could justify a law simply by pointing to it.

    (18) Treating such a fundamental right as just another government benefit that can be offered or withheld at the whim of the state is an indicator either that defendants fail to appreciate the implications for equal citizenship that the right to marry has or that they do not see same-sex couples as equal citizens.

    (19) Defendants seem to concede that they have no reason to believe that marriage between same-sex couples will have an adverse effect on procreation between opposite-sex couples; however, preferential treatment for opposite-sex couples is permissible because they “need” marriage to better insure that they will stay together after procreation and same-sex couples do not need such assistance because they do not procreate “accidentally.” It is difficult to believe that Wisconsin voters and legislators were willing to go to the great effort of adopting a constitutional amendment that excluded a class of citizens from marriage simply because the voters and legislators believed that same-sex couples were so stable and responsible that marriage was unnecessary for them.

    (20) Wisconsin already does inquire into the fertility of some marriage applicants, though in that case it requires the couple to certify that they are not able to procreate, which itself is proof that Wisconsin sees value in marriages that do not produce children and is applying a double standard to same-sex couples. Wis. Stat. §765.03(1) (permitting first cousins to marry if “the female has attained the age of 55 yearsor where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating either party is permanently sterile”).

  • 214. Ragavendran  |  June 6, 2014 at 8:33 pm

    (21) On one hand, defendants argue that same-sex couples do not need marriage because they can raise children responsibly without it. On the other hand, defendants argue that same-sex couples should not be raising children at all.

    (22) Defendants do not suggest that it would be rational to believe that the same-sex marriage ban causes any gay person to abandon his or her sexual orientation and enter an opposite-sex marriage for the purpose of procreating or that, even if the ban had such an effect, the situation would be beneficial for the child in the long run. Although it might be rational to believe that some same-sex couples would forgo raising children without the benefits and protections afforded by marriage, that result would not lead to more children being raised by opposite-sex couples; rather, it simply would mean that fewer children would be born or more would be left unadopted. Not surprisingly, neither defendants nor amici argue that not being born at all or being a ward of the state is preferable to being raised by a same-sex couple. Accordingly, Wisconsin’s ban on marriage between same-sex couples cannot be justified on the ground that it furthers optimal results for children.

    (23) Certainly, to the extent that defendants or amici are concerned about the erosion of strict gender roles in marriage, that is a sexist belief that the state has no legitimate interest in furthering.

    (24) Two strangers of the opposite sex can marry regardless of their intentions, without any demonstration or affirmation of the example they will set, even if they have been previously divorced or have a history of abusing the institution. Similarly,the no-fault divorce rules that defendants cite actually undermine their argument by showing that Wisconsin already supports an “adult-centric” notion of marriage to some extent by allowing easy divorce even when the couple has children. (excluding same-sex couples from marriage after liberalizing heterosexual marriages and relationships in other ways is “a case of trying to lock the barn door after the horses have already gone”).

    (25) Cf. Doe, 403 F. Supp. at 1205 (Merhige, J., dissenting) (“To suggest, as defendants do, that the prohibition of homosexual conduct will in some manner encourage new heterosexual marriages and prevent the dissolution of existing ones is unworthy of judicial response. In any event, what we know as men is not forgotten as judges — it is difficult to envision any substantial number of heterosexual marriages being in danger of dissolution because of the private sexual activities of homosexuals.”).

  • 215. Pat  |  June 7, 2014 at 1:28 am

    I also love this part where she mentions "traditional" marriage was in fact polygamy…

    From http://www.huffingtonpost.com/2014/06/06/gay-marr

    WASHINGTON — The federal judge who struck down Wisconsin's gay marriage ban thinks state officials have a thing or two to learn about the history of marriage as a social institution.
    In defending their same-sex marriage ban, state officials claimed that "virtually all cultures through time" have recognized marriage "as the union of an opposite-sex couple."
    But as U.S. District Judge Barbara Crabb wrote in her 88-page ruling on Friday, that's simply not true.
    "As an initial matter, defendants and amici have overstated their argument. Throughout history, the most 'traditional' form of marriage has not been between one man and one woman, but between one man and multiple women, which presumably is not a tradition that defendants and amici would like to continue," Crabb wrote in her opinion.

  • 216. TKinSC  |  June 7, 2014 at 1:54 am

    That's simply wrong. A man could have multiple wives, but each wife counted as a separate marriage. The women were not married to each other.

  • 217. Sean  |  June 7, 2014 at 9:44 am

    I don't see anything in her statement that suggests she believes the women were married to one another, do you?

  • 218. davep  |  June 7, 2014 at 3:25 pm

    No, that was just more of TK's knee-jerk rhetoric spew. There isn't much actual thought that occurs behind it.

  • 219. brandall  |  June 7, 2014 at 1:49 pm

    After reading the entire document twice, I don't believe I've seen any court ruling using more diverse case citations than this one. Probably more cases also. I would not want to do the count for the previous 19 rulings, but this case even included Brown, Roe, etc.

  • 220. ebohlman  |  June 7, 2014 at 1:53 pm

    It makes you wish decisions had to come with a table of authorities like briefs do (I'm sure the software the court uses has the ability to do this for internal purposes).

  • 221. JayJonson  |  June 7, 2014 at 2:05 pm

    Judge Crabb is exceedingly thorough. She address not just the arguments from the state but also the (sometimes absurd) arguments from amici. It is as though she decided that she would leave absolutely no argument, however remote, unaddressed and unrebutted. If her decision is not upheld on appeal, then there is no justice in this country.

  • 222. ebohlman  |  June 7, 2014 at 2:15 pm

    The decision reads like a textbook on how to successfully argue a ME case.

    Although she wasn't the first to do so, she was the first judge to directly signal that she'd sussed out the hidden premise behind the "deprives children of a mother and father" argument, namely that banning same-sex couples from marrying would result in same-sex couples breaking up and finding opposite-sex partners.

  • 223. Ragavendran  |  June 7, 2014 at 4:42 pm

    I don't think any other opinion comes close to this one. But if I had to pick the one that was most similar in style (bombarding the reader with citations), it was the De Leon case by Judge Garcia. What do these judges have in common? They are both in very conservative circuits and they want to do the best they can to make it really hard for an appellate judge to reverse them without coming across as blatantly biased/bigoted. But even De Leon can't touch this iron fortress that Judge Crabb has authored – her seniority and decades of experience have been poured into this opinion. She was practicing law even before Loving and was appointed to the court in 1979. (How many Carter appointees – Ginsburg and Breyer among them – are still out there?) I'm sure she is well respected among her colleagues, perhaps even by judges in the Seventh Circuit.

  • 224. TKinSC  |  June 7, 2014 at 2:25 am

    1) The court had no reason to speak on Baker in either Windsor (as it did not involve a state ban) or Hollingsworth (as they did not reach the merits). Everything that was said in regard to state bans was said by the dissent (and, obviously, that does not control). While it is a bit odd that they remained completely silent about it, that oddity is of no constitutional significance. Baker remains the law of the land.

    2) Interesting argument here. So is it like abortion? Can the state discourage same-sex couples from getting marriage licenses? ("You do know he's a guy just like you, right? Are you sure you want to get hitched to him?")

    3) But marriage isn't an "experiment". If anything, the experiment is with same-sex "marriage". And an experiment is not a constitutional right.

    4) Nor is there an asterisk implied in any of the laws. Gay people can already marry, just like everyone else. In all 50 states.

    5) Federalism was not the thrust of the decision, but it was a necessary foundation; without the state's right to define marriage as it saw fit, and the federal government's lack of proper business in interfering with that definition, the due process argument withers.

    6) So maybe this court's encroachment on state authority is likewise unconstitutional? Just a thought.

    7) If the Supreme Court hasn't yet recognized it, then perhaps a district court shouldn't either. The plaintiffs can always appeal if they think SCOTUS is likely to do so for the first time.

    8) Griswold didn't exactly say married couples have the right not to procreate (although nobody is questioning that). It said they have a right to choose when to procreate (with "never" being a possibility). They shouldn't be forced to choose between refraining from intimacy and having an unplanned pregnancy. (Oh, and the "noble .. purpose" referred to is … procreation!!)

    9) Quite simply because the definition of marriage excludes same-sex couples. And Lawrence expressly disclaimed (despite Scalia's dissent) application to state recognition of homosexual relationships.

    10) The right may not be restricted. And it isn't. Gays can already marry in all 50 states.

  • 225. DrPatrick1  |  June 8, 2014 at 9:28 am

    4) prior to Loving in VA blacks had the same marriage restriction as whites, yet was found unconstitutional based on race!

    5) federalism was at stake simply because a federal law was attempting to usurp (for federal purposes) a matter of law left to the states. In that case, the constitution does not allow this. With respect to the state bans on marriage equality, federalism is not at issue because there is no federal law requiring states to issue marriage licenses to gay couples. If such a law existed, it would certainly be found unconstitutional! HOWEVER, the issue is whether a state can exclude a similarly situated couple for disparate treatment. Not whether federal LAW requires equality, but whether the federal CONSTITUTION allows inequality. I trust you can see this important distinction. The constitution says the federal government cannot have laws which control state domain, but that state laws must comport to the federal constitution!

    7) chicken and the egg scenario, and the reason both sides fully expect a SCOTUS decision before all is said and done.

    8) I do not understand the distinction you draw here. By permitting contraception, and allowing a married couple choose how to plan their families, including allowing the possibility never to have a child, they indeed allowed a couple the right never to procreate.

    9) Scalia is a sharp legal mind (though one with which I often disagree) who likes to dissect the majority opinions in his dissents. When quoting from such a dissent, one is quoting that interpretation of the majority opinion. Thus, the quote is meant to indicate that the person is agreeing with that portion Scalia's analysis of the majority opinion.

  • 226. TKinSC  |  June 8, 2014 at 10:13 am

    4) Not the same. Whites could marry whites. Blacks couldn't marry whites. Hence discrimination. By your logic, anti-miscegenation laws discriminated against heteroracials.

    5) Of course state laws must comport with the constitution, and there's nothing in Windsor that suggests they don't. (In fact, at the end, the majority in Windsor expressly disavows such a suggestion.)

    7) Agreed. Nevertheless, when SCOTUS has spoken (as they did in Baker) lower courts should follow what SCOTUS already said*, not go out on a limb and predict that this time will be different. (This goes double when no stay is issued.)

    8) My point is that the right not to procreate is overemphasized. Married couples are generally expected to procreate. They simply have the right to control when that occurs (up to and including the extreme case of never).

    9) Why rely on a dissent to interpret what the majority said? Scalia may very well prove to be right, but it's not for a lower court to join his speculation or use his agreement to justify its own. Lawrence said it was not about state recognition of homosexual relationships. Windsor expressly confined itself to "those lawful marriages". Why not rely on that?

    (*A part of me would not mind if a judge followed his own belief about what the constitution says and repeatedly forced higher to reverse him. But that should be done consistently, and without regard to any precedent.)

  • 227. DrPatrick1  |  June 8, 2014 at 11:58 am

    4) How you fail to see the parallel here is astounding! Men can marry women, but women can't marry women, hence the discrimination!

    5) because the courts can only resolve the question before them, they did not address the states' bans. It was unnecessary for them to do so, so it would be improper for them to have done so. That, at best, suggests this is unsettled law, and thus a proper controversy for the courts to decide.

    7) even you admit it was odd the court in Windsor chose not to address Baker. Perhaps the lower courts are agreeing with you, and interpreting this to suggest the legal landscape is so profoundly different as to negate the limited importance of baker.

    8) I can find nothing in the law that even suggests that there is an expectation in the law that a married couple will procreate, any more than having laws governing divorce is an expectation that a married couple should divorce, even if they never choose to do so.

    9) Lawrence, and Windsor, both said they didn't settle the issue of state bans. This is not the same thing as saying that Lawrence and Windsor both support the state bans. Just because they are using Scalia's interpretation, in a dissent, of the legal landscape post the majority opinion, does not, in any way, diminish that interpretation. They are not arguing that because Scalia said it it must be true, only that even Scalia sees that this is the proper way to interpret this decision.

  • 228. TKinSC  |  June 9, 2014 at 2:54 am

    4) Yes, sex discrimination if you want to be ultra-technical, but not of the sort designed to favor one gender over another. It is no more illegitimate than sex-segregation of restrooms.

    5) But it wasn't necessary for them to expressly say their decision doesn't apply to state bans. And yet, they said just that. Call me crazy, but I think they were trying to make a point.

    7) Why not simply follow Baker, and leave to SCOTUS the prerogative of overruling its own decision? (Although, given the stay in Kitchen, it is now basically the same thing.)

    8) There's no legal requirement to procreate, but it is generally expected that married couples will do so, as that is the primary reason for the existence of marriage. (Not so that they can procreate, but because they likely will.)

  • 229. TKinSC  |  June 9, 2014 at 3:21 am

    (Typo: forgot to end italics after "because")

  • 230. DrPatrick1  |  June 9, 2014 at 8:17 pm

    4) again, your failure to see the parallels is simply astounding. Prior to loving, the law disadvantaged equally based on race. Whites were no more permitted to marry blacks, than blacks were permitted to marry whites. Even though the effect of the disadvantage was equally shared, it was ruled unconstitutional.

    Though the history of race relations and the history of sexual orientation discrimination are different, you simply need to switch the topic from sexual orientation to race and you will often find the same arguments against equality as were found in previous civil rights struggles. When you add the language used to prove discrimination based on gender to that analysis, you find most all of the arguments used today are tired rehashes of of a bygone era. They have rightfully been rejected, and they will once again.

  • 231. skrekk  |  June 8, 2014 at 10:16 am

    "Baker remains the law of the land."

    That's quite obviously false, as Ginsburg noted in the oral arguments in Hollingsworth.

    What's even worse for your side is that in the Windsor case, SCOTUS acknowledges that federal rights are indeed impacted when marriage is denied.

  • 232. TKinSC  |  June 8, 2014 at 12:16 pm

    I don't think a comment during oral arguments counts as binding precedent.

    I'm not sure what you mean by "federal rights", but in Windsor SCOTUS was talking about federal denial of "marriages" deemed valid by the state in which the couple lived. That has no bearing on Baker.

  • 233. skrekk  |  June 8, 2014 at 12:38 pm

    "I'm not sure what you mean by "federal rights""

    Obviously the underlying tax treatment question at the root of the Windsor case. Couples who are denied the right to marry are denied those federal rights and benefits, and thus the statement in Baker that "there is no federal question" is wrong.

    And as Ginsburg and all the lower federal courts have noted, there's been a great deal of legal water under the bridge since Baker…..including court doctrine regarding heightened scrutiny of this type of gender discrimination, as well as equal protection for gays and straights. That's probably why the courts ignore Baker with but a sentence in passing, because it's irrelevant.

  • 234. TKinSC  |  June 8, 2014 at 1:13 pm

    A "federal question" is one that is worthy of a federal court's consideration. Baker and his "husband" challenged Minnesota's (implicit) same-sex "marriage" ban on due process and equal protection grounds. The Supreme Court, in a one-sentence dismissal, said there was no federal question, i.e. that Baker's argument was not worthy of the federal court's time.

  • 235. skrekk  |  June 8, 2014 at 2:08 pm

    Apparently no federal court agrees with you today since all of these bans are being struck down on equal protection grounds.

    When does your side plan to win a case?

  • 236. TKinSC  |  June 8, 2014 at 3:40 pm

    1972 ๐Ÿ™‚

  • 237. TKinSC  |  June 7, 2014 at 2:53 am

    11) Not exactly. There may be times when one state or another challenges a generally accepted right — such as with a law against public protests, for example. Then it's the court's job to nip that in the bud. It's not the court's job to extend rights in a way that has never been done before, especially when such an extension can't be found in the will of the people (as it was when they repealed sodomy laws).

    12) Or maybe it reflects the views of the majority of Wisconsin voters who approved the provision in question. One judge's view is certainly not of greater weight than the collective view of the people.

    13) Recognition is really a non-issue. It rises or falls with the in-state bans.

    14) Well whadd'ya know, a judge humble enough to account for the possibility that she might be wrong. Judges Shelby, Friedman, Dale, Piazza, and Jones, are you paying attention?

    15) Sure. Straight people can't marry the same sex either.

    16) My guess is Kennedy doesn't care much for the three-tier system, preferring a holistic approach. I personally like the three-tier model, but there may be times when it unduly restricts a court's ability to adequately address whether the inequality imposed by a law (and almost all laws impose inequality to some extent) is constitutional. So it should be a soft rule, but not a liquid one. Think rubber.

    17) Tradition does not per se justify a law, but it does inform the question as to whether animus was the reason for its passage. If marriage had included same-sex couples for millennia and Wisconsin all of a sudden decided to ban same-sex marriages, that would be a different situation.

    18) To the contrary, it is the plaintiffs who see marriage as just a set of government benefits. If that were true, then of course there should be no reason to restrict it to opposite-sex couples. But marriage — even the civil variety — is so much more.

    19) I fail to see why the views of the voters matter. Either the provision is constitutional or it's not. But certainly one can, if need be, make the argument that same-sex couples do not need marriage for the very reason that their intimacy never results in children.

    20) So in addition to the usual reasons for marriage, Wisconsin figured it wouldn't hurt to let some related couples access the institution, provided they fit within the definition. That hardly requires Wisconsin to grant the same access to all non-procreative couples, including those who violate the definition This is the sort of line-drawing that is properly left to legislatures without judicial interrogation along the lines of "Why this, but not that?"

  • 238. Rose  |  June 7, 2014 at 10:01 am

    15) Sure. Straight people can't marry the same sex either.

    Actually in states with Marriage Equality…….a man can marry another man WITHOUT regards to their sexual orientation……..there are NO qualifiers that exempt a straight man from marrying another unrelated straight man……there is NO requirement that states a straight man MUST marry a woman and a Gay man MUST marry another man……….please pull your head outta of your azz……thanks!!!

  • 239. TKinSC  |  June 7, 2014 at 7:54 pm

    I agree with you. I would simply note that this portion of your statement:

    "there is NO requirement that states … a Gay man MUST marry another man"

    applies in every state. That is to say, in every single state, a gay man may marry a woman if he wishes (and she consents), just like straight men can. The right to marry is NOT restricted based on sexual orientation.

  • 240. skrekk  |  June 8, 2014 at 10:19 am

    "a gay man may marry a woman if he wishes (and she consents), just like straight men can"

    Sounds like the exact same logic your racist brethren used 50 years ago.

    And since you admit that it's actually gender discrimination, it'll be subject to heightened scrutiny.

  • 241. TKinSC  |  June 8, 2014 at 11:54 am

    It's not the same logic as the racists' at all. They made skin color relevant to marriage. Gender, on the other hand, is inherently relevant to marriage, as that's what marriage *is*.

    Sure, it's sex discrimination, but it's no more invidious than sex-segregated restrooms, locker rooms, prisons, and the like. The discrimination does not exist for the purpose of privileging one gender over the other, so it's not exactly the type that invokes heightened scrutiny.

  • 242. skrekk  |  June 8, 2014 at 12:10 pm

    It sure sounds like it's invidious gender discrimination since it denies an entire class of persons access to substantial rights merely because their spouse is the wrong gender.

    And as quite a few federal courts have noted, heightened scrutiny is warranted on that basis alone.

  • 243. TKinSC  |  June 8, 2014 at 1:26 pm

    You're misunderstanding the word "spouse", which by definition is someone of the opposite gender.

    If you want to argue that government recognition of marriage is itself unconstitutional sex discrimination, well, good luck with that, as it hardly makes sense to have a constitutional right that is unconstitutional.

  • 244. skrekk  |  June 8, 2014 at 2:14 pm

    Your side lost in court 50 years ago using a similar definitional argument, that a spouse was only someone of the same race.

    It was just as moronic an argument then as it is today and as Judge Crabb observed, it's a circular argument designed to maintain unjust discrimination.

    The bottom line for you bigots is that you've been utterly unable to provide any court a rational basis for the state to discriminate on the basis of the race or gender of one's spouse, much less the heightened scrutiny those classes require.

  • 245. TKinSC  |  June 8, 2014 at 3:16 pm

    There was no definition of "spouse" that restricted it to someone of the same race. There were actual laws that prohibited people of different races from marrying. These laws existed in much (but not all) of America in its early history, but were rare elsewhere.

    The male-female understanding of marriage, on the other hand, was universal up until 13 years ago, and still prevails in a healthy majority of the world and a majority of the U.S. today.

    It really is apples and oranges.

  • 246. DrPatrick1  |  June 8, 2014 at 4:01 pm

    If it were exactly the same issue, equality would already be established. The parallels are without question, even going to the legal arguments today compared with the legal arguments in Loving. Just because it is a different issue does not mean the legal analysis is of no precedential value.

  • 247. TKinSC  |  June 9, 2014 at 3:41 am

    Sure, but your side is saying it's exactly the same, except replace race with sexual orientation, or with gender. And it's not, because:

    1) The Loving case was about racial discrimination (blacks could not marry whites though whites could) designed to maintain white supremacy, and racial discrimination is the principal unfairness targeted by the 14th Amendment.
    2) There is no discrimination based on sexual orientation, as one's sexual orientation is simply not asked on a marriage license application. (To be sure, there is a disparate affective impact, that is, gays probably don't want to marry someone they're legally (and definitionally) allowed to, but the Constitution doesn't declare an equal right to what one wants. Besides, a disparate impact is not per se evidence of targeting gays for second-class treatment, which the ancient understanding of marriage (see below) proves is not the reason for the bans.)
    3) Marriage is sex discrimination, but it doesn't (nor is designed to) favor men over women or vice versa. It is simply what it is and has always been: the legal union of a man and a woman. All the recently-passed bans do is make that ancient understanding explicit, and clarify that the equal protection clause of the varous state constitutions should not be construed so as to require an abandonment of that ancient understanding.

  • 248. skrekk  |  June 9, 2014 at 10:23 am

    "your side is saying it's exactly the same, except replace race with sexual orientation, or with gender."

    The victims of that unjust and unconstitutional discrimination might be be the same, but the equal protection violation is the same, and the dumb bigots tend to be the very same people – typically Mormons, Southern Baptists, and other members of the Christian Taliban.

    And so far the courts see the two cases as being directly parallel, which is why they always cite Loving v Virginia when they rule for marriage equality.

  • 249. davep  |  June 8, 2014 at 2:18 pm

    You can continue to stamp your feet as you dance around your circular logic about 'the law can't allow same sex couples to marry cuz the law sez marriage is defined as being only for opposite sex couples", but you're only fooling yourself. The issue is secular civil marriage, and the laws that define civil marriage have been allowing same sex couples to legally marry for over a decade already in this country, and this trend continues to accelerate.

    Every time a state removes its unnecessary gender restriction from its civil marriage laws, same sex couples can and do legally marry with no problem at all, and they are just as married as other couples. Your problem is that you are trying to force onto civil marriage some definition that is of something other than civil marriage.

    And by the way, a quick check of the major dictionary definitions
    of 'spouse' will tell you that there is nothing in the definition which specifies that the two people are of the opposite sex. You are flailing.

  • 250. DrPatrick1  |  June 8, 2014 at 2:46 pm

    Since your argument is straying from a legal one into a definitional one (spouse is what I say it means, and that excludes you all. Marriage is how I define it, and that excludes you all), can we agree not to debate that point any further? There is no logical discussion we can have that will change the other's mind on that issue. We can debate the legal implications of these rulings, and most of your arguments are just that. But when you challenge us with a barrier you yourself won't let us cross, surely you can see the futility of such a discussion. You can have your own definition for marriage and spouse, you can debase our relationships with quotation marks which whether intended to or not have the effect of enraging those with whom you choose to debate. The reality is that the legal definitions of spouse and marriage are no longer how you would define them. It matters not that you have chosen to ignore that reality!

  • 251. davep  |  June 8, 2014 at 3:54 pm

    Yup. I like this quotes on the topic of differentiating between personal bias and constitutional principles:

    "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."
    – U.S. Supreme Court, 1984

    So the garden-variety bigots and mouth-breathing NOM minion like TK are free to stew in their self-imposed prejudices and petty animosities. But they have no reason to expect the law to give their senseless and vindictive views any effect. And that is what is triggering them to act out like self-centered spoiled children. Thy are realizing that they are no longer getting their way. The people they wish to see harmed are no longer being harmed.

    They can now only choose between throwing a tantrum, or growing up. We are seeing the results of their choice.

  • 252. DrPatrick1  |  June 8, 2014 at 10:13 am

    11) current law is such that private adult consensual sexual acts are outside legal review, children and even the ability to procreate have never been a requirement of marriage and all sides agree that no such requirement could withstand constitutional scrutiny, and the right of marriage for heterosexual people is to choose the partner of your choice, even when that choice is against the state's interest, such as convicted felons and deadbeat parents. The only question here, is whether a state can withhold a right from a homosexual couple what it freely gives to a similarly situated heterosexual couple. Though this specific question is not yet settled law, hence the court cases, the entire history of our country suggests that this is not permissible. We shall see…

    12) but the issue at stake is not whether the majority of Wisconsin voters can amend their constitution, but whether in so doing, they can abridge rights guaranteed under the federal constitution.

    17) it is not unconstitutional for a law to punish based on animus (we do not like murderers, so we will lock them away forever). However animus can be a clue that rights are being abridged. Animus and tradition are each insufficient justification for a law. There must be a legitimate governmental interest at play.

    18) you must not have read this statement clearly.

    19) agreed, the mind of "the voter" in the case of a ballot measure can be so varied, as to be both inscrutable and irrelavent to the constitutionality of the law. Having children is not a requirement of marriage, and marriage is not a requirement for having children. With respect, the child argument actually favors equality here because the reality is that just as opposite sex couples sometimes have children and sometimes do not, gay couples sometimes have children and sometimes do not. With respect to having children, they are exactly situated as are opposite sex couples. The law does not make a distinction between biological and adopted children. The fact that adoption is more prevalent among same sex couples than opposite sex couples is immaterial. What's more, because shames ex couples are more likely to adopt, they are more likely to be parenting UNDER STATE SANCTION than opposite sex couples. Thus, the state is much more likely to have approved, through the adoption process, the parenting relationship in same sex relationships than opposite sex couples. This is true regardless of whether the parents are married.

    20) by requiring a potential married couple to prove their INABILITY to procreate, the state is disavowing its interest in having procreation as a requirement of marriage.

    Incidentally, I completely understand your side's insistence on discussing procreation and children, NOT because they ARE actual requirements of marriage, but because it is your only hope for distinguishing gay couples because you all find we are not similarly situated. However, this is a losing argument for your side. Because procreation is not a requirement for you all to marry, you cannot then make it a barrier for us to not marry.

  • 253. TKinSC  |  June 7, 2014 at 3:24 am

    21) Children do best with their mother and father (or at least a mother and father). Same-sex couples do not provide the same benefits to children, hence the benefits of marriage should not be wasted on them. And to the extent that same-sex couples at least do not have unwanted children and can be good (if not optimal) parents, that only goes to show that marriage is not needed to cement their family.

    22) This turns the analysis on its head. Marriage benefits the children of heterosexual couples by encouraging fathers and mothers to stay together. There is no similar benefit to the children of homosexual couples, who do not have unplanned children. It is therefore two different situations, which can therefore constitutionally be treated differently.

    23) So now it is sexist to believe that there are important differences between mothers and fathers? Is it also sexist to believe that men and women prisoners should be housed separately, or that there is any important difference between men and women at all? Are we all just drones with trivial differences in genetalia?

    24) So we see, as far as the state is concerned, marriage is not about love. Two strangers can do it, provided they are of the proper biological make-up to create a child, and are willing to enter into the respective commitments. Perhaps this shouldn't be allowed, but that's a question properly reserved for the legislature, free from judicial second-guessing.

    25) It is not necessary to prove or even believe that denying marriage to homosexual couples helps children of heterosexual couples, although that argument can be made as well: if fathers don't see marriage as an instution designed to encourage them to stay with the mothers of their children, then they might be more likely to abandon those children.

  • 254. Rose  |  June 7, 2014 at 10:04 am

    24) So we see, as far as the state is concerned, marriage is not about love. Two strangers can do it, provided they are of the proper biological make-up to create a child, and are willing to enter into the respective commitments. Perhaps this shouldn't be allowed, but that's a question properly reserved for the legislature, free from judicial second-guessing.

    The state cares NOT about the proper biological make-up of the consenting adults regarding procreation……in fact that has been proven by their failure to make a realistic argument regarding that claim!!!

  • 255. Roulette00  |  June 7, 2014 at 11:52 am

    21) Children do best with their mother and father (or at least a mother and father).

    This is utterly irrelevant. The state permits many non-optimal child-rearing situations, including allowing the biological parents to abandon the child to foster care or adoption; or where one parent is incarcerated; or where one parent is deployed overseas; or where one parent can deny visitation to the other; or where parents can hire a nanny to raise the child for them; or where one parent has all the child-care responsibility and the other none; or where non-married parents can raise a child; or where a widow can raise a child without remarrying. This alleged interest in "optimal child-rearing" never raises its ugly head where heterosexuals are concerned. It is ONLY when gays ask for rights that suddenly the state concocts this excuse. It is never applied evenly to hetero couples; therefore, it is a thinly veiled animus.

  • 256. davep  |  June 7, 2014 at 4:58 pm

    Indeed. There is ample data which proves that children don't do as well when raised in poverty, or when raised by parents who have no education. Yet there is nothing at all in the civil marriage law code which parses eligibility for civil marriage based on such factors. It is therefore a disingenuous post-hoc fabrication to argue that such concerns suddenly spring forth only regarding this issue when it is never applied in any other situation, even when it is abundantly clear that the parents clearly are in a category that is 'non-optimal' regarding parenting.

  • 257. TKinSC  |  June 7, 2014 at 5:12 pm

    "The state permits many non-optimal child-rearing situations…."

    Yes it does, including same-sex parents. The question is not what the state permits, but what it grants the title and benefits of marriage to. The quintessential purpose of marriage is to unite two people whose relationship is likely to produce children. Same-sex couples quintessentially fail to meet this purpose.

  • 258. Randolph Finder  |  June 7, 2014 at 6:15 pm

    So does any marriage involving a woman who is post menopausal

  • 259. KarlS  |  June 8, 2014 at 8:16 am

    Or any man with a vasectomy. TK's ignorance of Constitutional issues is exceeded only by his ignorance of biology.

  • 260. DrPatrick1  |  June 8, 2014 at 10:51 am

    This is true only in your view of marriage. There is nothing in the law that suggests this. All of the legal requirements, responsibilities, and benefits, exist whether there are children or not.

  • 261. Roulette00  |  June 8, 2014 at 1:41 pm

    Did you read the decision? Wisconsin specifically allows and permits marriages where the couples are proven incapable. To claim procreation is an objective (when gay couples marry) but to waive procreation (for hetero couples) is the definition of unfair bias.

  • 262. DrPatrick1  |  June 8, 2014 at 10:47 am

    21) in many situations in which same sex couples have become parents, it is only because the state had determined that the best interest of those children was by being raised by those same sex couples, and not by their own biological mother and father. Your talking point here is unquestionably wrong! It is a rather novel assertion being made in the modern marriage equality fight that marriage exists simply to force otherwise unwilling man woman couples to bind together for the sake of the consequences of their having "bumped uglies" (my expression not yours). As far as I am aware, marriage in this country is a voluntary process, and that includes the decision to remain married. Biological parents are legally responsible regardless of their marriage status. In fact, the only possible exception to this is the case of a child being conceived by a married parent, but not by that parent's spouse. In that case, the legal responsibility might be the spouse, and not the biological parent. Thus, marriage in that case has the effect of legally separating a child from his biological child.

    22) the children of same sex couples benefit from having their parents have the benefits of marriage in exactly the same way children of opposite sex couples benefit.

    23) it is sexist and unconstitutional to require different roles for the mother and the father. Today, and perhaps less commonly in history, the "traditional gender roles" observed in parenting are often reversed. As a male Ob/Gyn, I can say that the majority of my female colleagues have stay at home dads raising their children. While undoubtedly each parent contributes unique gifts to raising their children, it is wrong to assume their gender is what determines which gifts each brings to the table. In fact, parenting is unique to each child, let alone each family. There is not a set of 100 parenting skills, of which men naturally have 50 and women naturally have 50 and any combination limited to either two men, or two women can only ever have a total of 50/100. Rather any parent might only ever be capable of 80/100 by themselves, and it is likely a second parent, of either gender, would likely be able to fill in the gaps. For example, I might not always be the most patient parent, but my husband's patience often balances that out. So, I will agree that in many situations, or ideally 2 parents are better than 1, I do not understand your side's contention that the gender of that pairing is what matters.

    24) No, even with the current permissibility of two strangers obtaining a marriage license, no proof of ability or desire to procreate is necessary.

    25) first, it is absurd to suggest even a single father will be more likely to abandon his child because gay couples can wed, She is dismantling ALL proposed justifications for discriminating against men who are choosing to marry another man, and women choosing to marry another woman. Yes, your side's argument here would be unnecessary to maintain the discrimination, and might even be insufficient, but she is arguing it is absurd.

  • 263. Sagesse  |  June 7, 2014 at 4:12 am

    Very thoughtful and well written. Thank you for taking the time. This is of course meant for Ragavendran, not the Troll.

    As I was driving to work Friday morning, I wondered to myself what news this Friday afternoon would bring :).

  • 264. Eric Koszyk  |  June 6, 2014 at 9:32 pm

    The troll is back. Will the new moderator do anything about it as promised?

  • 265. Pat  |  June 7, 2014 at 4:39 am

    I onder if they can ban the troll based on their IP address? (since he/she didn't log in to IntenseDebate)
    If not, does that mean that a consequence will that all commenters will be required to login?
    I emailed Jacob and Scottie with the addresses they provided in their follow-up on commenting recently. Anyway, let's hope that they don't take several days to take action this time.

  • 266. Bruno71  |  June 7, 2014 at 8:18 am

    They should be able to at least delete each and every comment. S/he doesn't deserve to be able to post on this site anymore period.

  • 267. Jesse  |  June 7, 2014 at 12:46 pm

    In this particular case, the line-item answering of ragavendran's summary posts of Judge Crabb's opinion doesn't deserve a response. TKinSC is using opinions without citation to back answers are empty. And so too should be replies to it regarding the matter.

  • 268. RinCO  |  June 6, 2014 at 10:21 pm

    Thank you very much for this legal synopsis, Ragavendran. Oh my, rather comprehensive, Judge Crabb. I can't imagine the attorney who would look forward to appealing this ruling. Perhaps we will someday look back at this and Judge Friedman's Detroit trial with its demolition of anti-gay "experts" as the nuts and bolts logic of dismantling the "marriage ammendments"'.
    StraightDave – your analogy about the Berlin Wall is all the more apt having read R's post. If I were on the other side of this issue, I think I would pick now to shrug and quietly go home. Times have changed.

  • 269. Patrick  |  June 6, 2014 at 10:26 pm

    Jesus Christ, I'm getting sick of this. When does it go to SCOTUS already?

  • 270. TKinSC  |  June 6, 2014 at 11:14 pm

    Rah row. I know my TKNSC profile has been banned, but I want to post again to bring control back to what has become uncontrollable – all these equality rulings. I feel lost. I feel a loss. I feel at a loss.

    And I miss the original Lycos. All I have is bacon gone bad and a pillow.

    Can I post on the next ruling with green tomatoes I think it's going to be a good summer.

    Fyley.

  • 271. Altonfree  |  June 7, 2014 at 5:10 am

    Your tears are soooooooo sweet.

  • 272. Steve  |  June 7, 2014 at 7:08 am

    This is just someone else trolling him again.

  • 273. Bruno71  |  June 7, 2014 at 8:19 am

    And it doesn't help anything.

  • 274. TKinSC  |  June 6, 2014 at 11:17 pm

    What did she say?

  • 275. Craig  |  June 7, 2014 at 12:57 am

    It is truly an amazing ruling at a point where we are used to reading amazing rulings. On reading it one immediately senses this is different. It eschews the rhetorical heights but is incredibly thorough and robust. You can't imagine wanting to appeal it or point out where it has gone wrong in law if you're a Circuit of appeals. Just what would one say in an appeal? Baker? Responsible procreation? Tradition? The invisible asterisk on the 14th amendment?

  • 276. TKinSC  |  June 7, 2014 at 3:53 am

    There is plenty to appeal; however, I agree with you in that it was excellently written. Even though I strongly disagree with it (and have debunked its main arguments in my responses to Ragavendran), THIS is what a judicial opinion looks like.

    And it didn't even include an injunction (much less one without a stay). The judge appears to understand the clockwork mechanical process that is, well, judging. The opinion has been issued; now is the time to discuss what injunction should be entered and whether or not it should be stayed. No talk of bigotry (except to say there is no need to talk of bigotry) or ash heaps.

    If any decision should survive an appeal (a big if indeed), this is the one.

  • 277. Andrew  |  June 8, 2014 at 9:43 am

    I think the appeals courts are going slow because they want to give all the lower courts a chance to come up with the best arguments. So far WI is a good case to appeal. Each judge is learning from the others. And I think the decision not to issue an order yet is smart in that it delays the argument in favor of a stay. Meanwhile, more couples get married. The more couples who get married, the greater the harm in re-instating the ban. This is what SCOTUS said in Romer. Once you have a right, its harder to take it away. If you oppose gay marriage, you are better off not even addressing the issue in the first place and just not issuing gay marriage licenses that to affirmatively ban them, even worse is to have them and try to take them away. Now the harm is that the Feds have said that they will recognize any gay marriage issued by a state, regardless if it has been appealed or stayed.

  • 278. Deeelaaach  |  June 9, 2014 at 12:30 am

    None of the above. It would simply say "Because we said so." And the defendants would proceed to throw a tantrum with the crying and the stomping of feet, giving the judge the evil eye, and perhaps even trying to hold their breath. And they'd expect the judge to just give in. Oh wait, they've already done that. I forgot.

  • 279. Sagesse  |  June 7, 2014 at 4:24 am

    On seeking input on the injunction: Wisconsin is the state that (through a very old law, separate from its state DOMA) makes it illegal to go outside the state to marry if the marriage is not permitted by state law. Perhaps the pause is intended to get this loose end (and any lingering problems for Wisconsin LGBT couples married elsewhere) tied up as well.

  • 280. Big Rick  |  June 7, 2014 at 5:54 am

    Does anyone have a link to a downloadable PDF copy of Judge Crabb's opinion? I can't download from scribd without signing up for an account, which I'd prefer not to do.

  • 281. SGS  |  June 7, 2014 at 7:02 am

    I am on an iPad, but I think this link from the excellent SCOTUSBlog will let you download: http://sblog.s3.amazonaws.com/wp-content/uploads/

  • 282. Big Rick  |  June 7, 2014 at 2:50 pm

    Thank you SGS. That worked.

  • 283. SGS  |  June 7, 2014 at 7:32 am

    Can the lawyers among us advise on this point: her decision is not just an opinion, but also an order. Paragraph 2 declares the laws/bans unconstitutional. So, it seems like it is being interpreted that clerks/officials CAN comply with it, but are not REQUIRED to comply with it until the injunction is in place. Thoughts, comments? Thanks!

  • 284. TxLawyer  |  June 7, 2014 at 7:39 am

    Her opinion is just that … an opinion.

    The judgment has not been entered yet … thats what she is seeking input on.

    FRCP 58: "(a) Separate Document. Every judgment and amended judgment must be set out in a separate document,"

  • 285. Ryan K.  |  June 7, 2014 at 8:36 am

    Even though the title page says OPINION and ORDER? It seems that certain orders have been made given she granted summary judgement and denied the request for dismissal. But no order specifically enjoining the state from enforcing the ban, as she requested each side to present options for relief to be ordered.

  • 286. Bruno71  |  June 7, 2014 at 8:42 am

    Her orders are related to having the plaintiffs brief the court by June 16th. It's an order, but there is no order yet for an injunction.

  • 287. Japrisot  |  June 7, 2014 at 1:38 pm

    Yep, the relief requested is a declaratory judgment and injunction, neither of which have yet issued from this court.

  • 288. Deeelaaach  |  June 9, 2014 at 12:45 am

    Her opinion is just an opinion. I'd like to see you say that to judges that are judging your divorce cases – while court is in session. I'd like to see how far you get with that.

    And as has been pointed out in a previous reply to this comment, you left out the "AND ORDER" part.

  • 289. Andrew  |  June 7, 2014 at 11:49 am

    Judge said the ban is unconstitutional. So the clerks of court have a justifiable reason to issue marriage licenses in opposition to the state ban. What the judge hasn't put in writing yet is the specific language of the injunction against the "named" defendants that tells them specifically what they need to stop doing. This language will list the specific named defendants and state that they need to stop enforcing the ban and stop interfering with or discouraging the clerks from issuing licenses. It is both this injunction and the current opinion of constitutional law that the state will hope to have a stay issued against until an appeal occurs. The judge can issue a stay before the injunction is in place, but so far he has denied the AG's prior request to issue a stay. Since the current clerks are not named, they are not affected by the upcoming injunction. If the judge issues a stay of the injunction, he would probably also state that his opinion is on hold as well and that it should not be considered law until an appeal. You can have a law that says the bans are illegal, and also NOT have an injunction yet against the defendants as it is now. As it stands, the defendants are breaking the law by enforcing the ban but not also going against a mandate from the judge. Its important to think of the law like this: the judge did not create new law yesterday. He just stated how it has always been. So in essence, since Windsor, the defendants have been breaking the law by enforcing the ban. They won't get in trouble for doing this, because they can say they thought the law was otherwise. They can still claim this by asking for an appeal of this ruling. But they would clearly be in trouble if they go against a crystal clear order. The judge just wants time to make sure there are no loopholes in the language of the injunction.

  • 290. Bruno71  |  June 7, 2014 at 12:04 pm

    Good post. However, the judge is a woman, and she hasn't denied any stay request. She just hasn't begun considering the one before her because she hasn't issued an injunction to stay yet.

  • 291. TKinSC  |  June 7, 2014 at 4:46 pm

    "So in essence, since Windsor, the defendants have been breaking the law by enforcing the ban."

    Windsor said nothing about state bans (and expressly denied any such implication). Until a judge issues an actual injunction against a law's enforcement, the law remains in effect. As proof, look at all the states whose laws are being enforced despite having been declred unconstitutional, because the injunctions against their enforcement have been stayed.

    The AG should know this; I really don't know why he is asking the court for a stay of an injunction it hasn't issued yet.

  • 292. Andrew  |  June 8, 2014 at 9:19 am

    Actually prior to Windsor. Windsor just clarified what the law has always been. Laws aren't overruled, opinions and ruling are. The law is constant unless a legislative act changes it without going agains the US constitution. When a judge overrules a previous ruling, he is saying that the previous ruling got the law wrong.

  • 293. SGS  |  June 7, 2014 at 7:51 am

    True, there is no separate judgment. But, isn't what she wrote an opinion AND an Order? See the title and last two pages. Or, per FRCP, an order does not actually go into effect until there is an actual separate judgment document?

    In other words, are three things always required? 1 -memorandum/opinion; 2-order; 3-judgment?

    It seems that item 1 is optional as many courts issue simple orders without memos/opinions. I know a plaintiff can't get money from winning an order until there is a judgment. But, while there is no Judgment that REQUIRES the defendants to stop enforcing the bans, what effect does having items 1 and 2, but not 3 have on non-parties? The Wisconsin AG and clerks issuing licenses clearly have differences of opinions in this.

    Thanks for your thoughts/comments!

  • 294. TKinSC  |  June 7, 2014 at 4:49 pm

    The memorandum is simply the judge's reasoning. The judgment basically says who wins, i.e. whose motions are granted and whose are denied. The order is what gives the judgment legal effect. Until there is an order that Wisconsin's law not be enforced, the law remains in effect.

  • 295. Andrew  |  June 8, 2014 at 9:26 am

    The judge has said that Wisconsin law was unconstitutional, or in other words, that it was never in effect. The defendants have been going rouge from the law since the ban was passed inserted into the WI consitution, Even though it was in the WI constitution, it was never law. It was a void meaningless language added to the WI constitution. So now we have clarified what the law has always been. Now the issue is that the defendants are not acting inconformity with the law. That is what the order will address. Its not that the law remains in effect until an order is given, Its just that their is no injunction yet ordering the defendants to conform to the law.

  • 296. TKinSC  |  June 8, 2014 at 10:39 am

    You do realize same-sex couples could not receive marriage licenses even before the constitutional provision was passed, right?

    The fact is, unconstitutional laws are struck down either by injunction, or by an AG preempting an injunction by determining the law is unenforceable because the Supreme Court has declared a similar law unconsitutional. Until one of those two things happens, the law is validly in force (whether or not it is later struck down).

  • 297. DrPatrick1  |  June 8, 2014 at 3:43 pm

    That is for a court to determine. The issue here is a bit unique, and if these laws are in fact ultimately struck down, it does in fact mean the states should not have been enforcing them all along. Thus, there is some legal ambiguity as to whether those marriages before the injunction will remain valid. If the law is truck down, it seems the couples will have a solid case. If the law is upheld, they may end up losing this one.

    Similar, but with a different outcome, are those couples, in other states, who married after the injunction but before the stay. If ultimately those laws are struck down, those marriages will of course remain valid. However if they are upheld, it is possible those marriages will remain valid. As far as I am aware, reversing an entire class of marriages when those marriages were validly entered into has no legal precedent. It would be new legal territory, one which only the courts could resolve.

  • 298. TKinSC  |  June 8, 2014 at 11:12 pm

    "That is for a court to determine."

    I suppose that's true, in the sense that everything is for a court to determine. But it is generally accepted as a legal matter that a law is validly in force until its enforcement is enjoined, and that injunctions are not retroactive. (And sometimes, injunctions are not even present-active, as "gay means stay" has shown. Or, as a better example, the 15 years it took from Brown v. Board for school desegregation to be achieved as a practical matter. I don't think rogue school districts would have gotten away with jumping the gun and desegregating schools without a court order, based only on the declaration of unconstitutionality announced in Brown.)

    I'm not sure it has been entirely settled as a legal matter, but it only seems logical to me that the invalidity of an injunction should be retroactive. Judges are not legislators, and have no right to change the law without authorization by the Constitution, and if it is later determined that authority didn't exist, then the change, as a legal matter, never happened (except to the extent that people who broke the law while the injunction was in effect may not be punished).

  • 299. Ragavendran  |  June 7, 2014 at 8:10 am

    To those who still keep using the so-called "definitional argument" against same sex marriage and keep saying things like TKNSC repeatedly says ("gays do have the right to marry, just marry someone of the opposite sex," and putting marriage in quotes because "it just isn't right to call it marriage"), Judge Crabb goes to great lengths to acknowledge those arguments in the past as well as point out the logical flaws she sees in those arguments:

    "This sort of “definitional” argument against marriage between same-sex couples was prominent in many of the early cases, in which courts said that the right to marry was not implicated because it simply was “impossible” for two people of the same sex to marry. Baker, 191 N.W.2d at 187 (“But in commonsense and in a constitutional sense,there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.”); Singer v. Hara, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974) (“The operative distinction [between interracial marriage and same-sex marriage] lies in the relationship which is described by the term ‘marriage' itself, and that relationship is the legal union of one man and one woman.”); Adams v. Howerton, 486 F. Supp. 1119, 1122 (C.D. Cal. 1980) (“The term ‘marriage’ . . . necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes.”); Dean, 653 A.2d at 361 (Terry, J.,concurring)(“same-sex ‘marriages’ are legally and factually—i.e., definitionally—impossible”).

    Although amici try to rely on the inherent “nature” of marriage as a way to distinguish anti-miscegenation laws from Wisconsin’s marriage amendment, the argument simply reveals another similarity between the objections to interracial marriage and amici’s objections to same-sex marriage. In the past, many believed that racial mixing was just as unnatural and antithetical to marriage as amici believe homosexuality is today. Wolfe v.Georgia Railway & Electric Co., 58 S.E. 899, 902-03 (Ga. 1907) (stating that “there is a universally recognized distinction between the races” and that miscegenation is “unnatural”and “productive of evil, and evil only”); Kinney v. Commonwealth, 71 Va. 858, 869 (1878)(interracial marriage “should be prohibited by positive law” because it is “so unnatural that God and nature seem to forbid” it); Lonas v. State, 50 Tenn. (3 Heisk) 287, 310 (1871)(“The laws of civilization demand that the races be kept apart.”).

    Even if I assume that amici are correct that the condemnation against miscegenation was not as “universal” as it has been against same-sex marriage, the logical conclusion of amici’s argument suggests that the Supreme Court would have been compelled to uphold bans on interracial marriage if the opposition to them had been even stronger or more consistent. Of course, the Court’s holding in Loving did not rest on a “loophole” that interracial marriage had been legal in some places during some times.

    A second flaw in defendants’ argument is that it is circular and would allow a state to exclude a group from exercising a right simply by manipulating a definition. Civil marriage is a legal construct, not a biological rule of nature, so it can be and has been changed over the years; there is nothing “impossible” about defining marriage to include same-sex couples, as has been demonstrated by the decisions of a number countries and states to do just that.

    Amici say that opposite-sex marriage reflects “biological and social realities,” Amici’s Br., dkt. #109, at 3, but they do not explain what that means. To the extent amici are referring again to procreation, I have discussed that issue above and need not address it again. To the extent they are referring to stereotypically masculine and feminine roles that men and women traditionally have held in marriage, that is not a legitimate basis for limiting the scope of the right. United States v. Virginia, 518 U.S. 515, 541-42 (1996) (“State actors may not rely on overbroad generalizations [about the sexes] to make judgments about people that are likely to perpetuate historical patterns of discrimination.”); Goodridge, 798N.E.2d at 965 n.28 (rejecting argument “that men and women are so innately and fundamentally different that their respective ‘proper spheres’ can be rigidly and universally delineated”). Although the Supreme Court has acknowledged that there are “[i]nherent differences between men and women,” the state may not rely on those differences to impose“artificial constraints on an individual's opportunity.” Virginia, 518 U.S. at 533-34. I see no reason why that principle should apply any differently in the context of marriage. Accordingly, I conclude that the right to marry protected by the Constitution includes same-sex couples."

  • 300. jdw  |  June 7, 2014 at 1:07 pm

    Is there a way to give this 10 thumbs up?

  • 301. TKinSC  |  June 7, 2014 at 4:55 pm

    "Of course, the Court’s holding in Loving did not rest on a 'loophole' that interracial marriage had been legal in some places during some times."

    Actually, yes it did. If interracial marriage had always been banned — or better still, had never been done simply because it was understood to be impossible — then the Supreme Court would not have been justified in its ruling in Loving. (But even in that case, it would be more justified than in the current situation, since the undeniable primary purpose of the 14th amendment was to prohibit racial discrimination.)

  • 302. jdw  |  June 7, 2014 at 5:44 pm

    The wonderful thing about the 14th is that its wording isn't limited to racial discrimination. So bigots are shit out of luck in trying to work around it to retain their bigotry.

  • 303. TKinSC  |  June 8, 2014 at 10:45 am

    True, it's not limited to racial discrimination, but that was the overriding purpose, and to apply it elsewhere requires a particular showing of intent to treat unequally, not simply of the fact of unequal treatment (which inheres in almost all laws).

  • 304. Stefan  |  June 7, 2014 at 12:09 pm

    Can anyone confirm that Waukesha County did in fact issue licenses to couples yesterday, and if so how many?

  • 305. ebohlman  |  June 7, 2014 at 1:07 pm

    One thing about Judge Crabb's ruling that really impressed me was her heavy use of Zablocki v. Redhail which is IMHO an underrated case. Of course the main reason for her choice was probably that Zablocki was a Wisconsin case, but it stands out because a) Zablocki was the first (that I know of) followup case to Loving, affirming the doctrine that State marriage laws have to comply with the US Constitution and b) had absolutely nothing to do with race, and therefore can't be distinguished from contemporary marriage equality cases on the spurious grounds that "race is a special case".

    In fact the restrictions that Zablocki struck down were restrictions based entirely on the (bad) conduct of the parties they applied to, not any characteristics that could remotely be considered immutable. It would be far easier to argue that preventing deadbeat dads from remarrying until they satisfy their obligations would promote child welfare than to argue that forbidding same-sex couples to marry would. Yet the SCOTUS found that the ends didn't justify the means there. The plaintiff's right to marry couldn't be held hostage even for the sake of his own biological children.

    Thus Zablocki is an excellent case to rebut the federalism argument, the chosen-behavior argument, and the think-of-the-children argument.

  • 306. palerobber  |  June 7, 2014 at 1:20 pm

    can WI AG even obtain a stay when there's no injuction yet?

  • 307. ebohlman  |  June 7, 2014 at 1:36 pm

    I don't think he can; though IANAL, I can't see how either the Western District or the Seventh Circuit have jurisdiction at this point. AFAICT, Van Hollen's dispute with the clerks falls under State jurisdiction, just like the Corbett administration's dispute with Hanes in PA did.

    Much will hinge on whether WI law regards clerks as agents of the executive branch (as in CA and OR) or semi-autonomous judicial officers (as in, say, VA); I don't know the law there; both state officials and county clerks were named as defendants in Wolf.

  • 308. jdw  |  June 7, 2014 at 1:22 pm

    Look… its time to give trusted regular poster/contributor like Doc and/or Ragavendran moderation rights. We had this discussion the last time the troller showed up. You guys swore up and down that it was being dealt with. And now the banned troller is back, and didn't even have to put on a sock puppet to do it: just showed up under his old name and started spamming this comments section.

    This was one of the most beautiful opinions in the whole struggle for equality. The comments section if full of tremendous posts, thoughtful analysis, posters helping others with questions about technical issues relating to the orders, stay and injunction. We have here in the comments section what all of us regular view as the key added value of EoT: tremendous commentators who are exceptionally given with their knowledge, and very patient with those of us who flood them with questions.

    In turn, we have someone who just wants to crap all of the section, and worse crap all over this struggle so many of us have been fighting for so long.

    I'm trying to remain calm and composed about it, but it has to be admitted that it really pisses me off. That anger is starting to be felt less for the troller and is increasingly moving toward the Admins of the site. I don't think I'm the only one who is starting to have anger bleed from being aimed at the troller(s) and over towards the Admins.

    Please guys: you need to do something, and you need to do it rather fast. It should be like this. After reading one of the most powerful opinions in this process, one of my first thoughts was that I need to see what the EoT regulars think about this, and dive into a shared joy that we all feel. You are no a short time away from a lot of us not wanting to bother because we do not want to wade through the troller's nonsense.

    Please… stop being naive about thinking you can manage this in a simple fashon, and instead listen to those posters who have offered to help you with it.

  • 309. JayJonson  |  June 7, 2014 at 2:01 pm

    I agree entirely.

  • 310. Pat  |  June 7, 2014 at 2:14 pm

    Well said! Actually, Jacob Combs wrote a comment above, saying they were "looking into this."
    This was over 7 hours ago and all the troll posts are still here!
    It's totally useless to clean up the comment threads several days later when everybody has moved on to more recent threads, it needs to be done right away!

  • 311. SGS  |  June 7, 2014 at 3:41 pm

    Folks, a little patience. The mods don't sit here 24/7/365. The troll posts were removed within 24 hours. Let's not expect immediate results all the time.

  • 312. Pat  |  June 7, 2014 at 3:53 pm

    That's the point: 24 hours later, most readers/commenters have moved on to other threads, so it's pretty useless at this point. That's why they need to give moderating rights to trusted regular poster here, as jdw was mentioning.

  • 313. jdw  |  June 7, 2014 at 5:47 pm

    This is why you have additional trusted Mods. No one expected the Admins to be here 24/7.

    Many of the posters here have moderated boards and forums over the years. We know what reasonable moderation is, and what reasonable expectations are. I wouldn't toss out the word Naive if I didn't.

  • 314. Rose  |  June 7, 2014 at 9:34 pm

    I've been a both an Administrator and Moderator on a blog site……..and it's NOT hard to do, just let folks know what is acceptable from the start and if after a couple of warnings they continue to break the rules….then remove them………if everyone is polite in their viewpoint….then free discussion will flow.

    Frankly from my experience, this TK poster is NOT as bad as those on topix's, but still enjoys stirring up stuff!!!

  • 315. billinNo  |  June 7, 2014 at 2:50 pm

    Yeah. Im ready to put the troll up against the wall.

  • 316. KarlS  |  June 7, 2014 at 5:51 pm

    You put him there and I'll supply the .357 caliber message.

  • 317. Scottie Thomaston  |  June 7, 2014 at 8:57 pm

    Let's all please watch the tone here, everyone. These jokes are inappropriate.

  • 318. davep  |  June 7, 2014 at 11:14 pm

    Maybe you guys should consider deleting offensive trolling posts. You can start with all of the posts made by trolls who have already lost their commenting privileges.

  • 319. bayareajohn  |  June 8, 2014 at 1:23 am

    "TKNSC" the registered account was deleted and banned. Whether the person posting now is the same person doesn't matter. Impersonating a banned troll should not be tolerated if the banned troll is not tolerated. Deliberate posturing as the banned antagonist should get the same result as the real thing. Otherwise, the original can simply return and continue too… by raising a slight doubt. That's manipulative and continuing in the banned behavior.

  • 320. Steve  |  June 8, 2014 at 4:21 am

    At least some of the posts have been him. The impersonators have been very obvious and you can easily tell them apart.

  • 321. Deeelaaach  |  June 9, 2014 at 1:10 am

    I just posted: "I am still waiting for the real (troll name shall not be mentioned) to stand up." That's all – nothing more.

    Immediately the site reported that my comment was deleted by the administrator. I'm not sure that it's because I'm posting or because I included the name of the troll that I won't mention above.

  • 322. Deeelaaach  |  June 9, 2014 at 1:23 am

    I guess it was the troll name that did it?

  • 323. Pat  |  June 9, 2014 at 5:24 am

    I also have one of my posts deleted automatically by the administrator. What's going on here?

  • 324. TDGrove  |  June 9, 2014 at 8:07 am

    I also had a comment deleted like that. I think they screwed up, and instead of deleting the troll comments, they added his name to a list of words that causes comments to be deleted.

  • 325. Eric Koszyk  |  June 8, 2014 at 5:14 am

    This is what happens when the site owners don't do what they promised. Another thing that will happen is no more donations.

    This website has gone down the crapper in the last two months.

  • 326. Guest  |  June 8, 2014 at 5:47 am

    Scottie, seriously? You still haven't bothered deleting the troll comments (and despite mentioning that he was banned, there have been new comments appearing several hours after Jacob said he was banned), but you have the time to actually ask people to watch the tone here? Maybe you could clean up the thread before scolding regular commenters who are, frankly, fed up with the lack of action.

  • 327. KarlS  |  June 8, 2014 at 5:43 pm

    Yeah, I keep forgetting, the bigoted assholes are the only ones allowed to make nasty jokes. What the fuck is wrong with you??>?

  • 328. brandall  |  June 7, 2014 at 1:43 pm

    The humanity side of all this excellent ME legal work:

    WISCONSIN POLICE OFFICERS DELIVER WEDDING CAKES TO WISCONSIN’S FIRST SAME-SEX MARRIED COUPLES

    Such a sweet story, pun intended. But, heavens I hope this baker knew the cakes were for SSM couples as I don't won't hear about another baker's religious rights! And a bit ironic, the police were delivering the goods considering their actions against us 40-50 years ago.
    http://www.thegailygrind.com/2014/06/07/wisconsin

  • 329. Jacob Combs  |  June 7, 2014 at 3:30 pm

    Hi all–we have blocked the new avatar of the commenter who people have reached out to us about before and in the last day. Please understand that 1) we devote a lot of time to this site but are not around 24/7 to take immediate action, especially on the weekend–because we are a small team!, 2) the user in question has MANY ways to get around our ban (using a different IP address, using an IP blocker, changing just a single letter in their user name, etc.), so in reality, our options for permanently banning him/her are limited. We have promised to be more on top of these things, and our response this time was much quicker than our last one–as promised. However, the best way to deal with such comments is to simply ignore them. I hate to sound like a complete broken record, but we are doing the best we can with very limited resources. Thanks for reaching out, and as usual, please do keep in touch, but I urge everyone on this site to please be patient and understanding.

    Thanks,
    Jacob

  • 330. Bruno71  |  June 7, 2014 at 3:43 pm

    Thanks. I think people have to understand all this and realize it may take some time to catch up to someone who decides to continue to antagonize and abuse the members of this site. However, I would suggest that you take the further step of deleting her/his posts. If they get deleted in an effective manner, it'll be much more likely they don't come back in the future.

  • 331. Steve  |  June 7, 2014 at 4:29 pm

    Well, it didn't work. He's back.

    Requiring registration might be better. And also prevent people from impersonating others. Sure, it's easy to get another account, but it takes some time and ideally a valid, new email address.

  • 332. jdw  |  June 7, 2014 at 5:48 pm

    Posted 45 minutes ago, aimed at one of the most respected posted on the site. It's… frustrating. ๐Ÿ™

  • 333. BenG1980  |  June 8, 2014 at 8:11 pm

    I agree. I'm now in favor of mandatory registration.

  • 334. TDGrove  |  June 7, 2014 at 4:33 pm

    Old posts are still here, new posts have happened in the last 15 minutes. Your solution isn't working.

  • 335. Rich  |  June 7, 2014 at 5:53 pm

    Jacob, the key point of your post is this: simply ignore them. Really people, just don't give him even one response. You invite his trolling when you respond.

  • 336. davep  |  June 7, 2014 at 6:21 pm

    Not good enough. The troll has already lost his privilege to participate. All comments from banned trolls should be deleted. When a troll is able to post comments again after being banned and the new comments are left in place, it essentially means the ban never happened.

  • 337. Bruno71  |  June 7, 2014 at 9:56 pm

    People have been giving this same advice for weeks now. There are too many posters on this site and his posts are too antagonizing to expect this will work on a permanent basis.

  • 338. Deeelaaach  |  June 9, 2014 at 1:15 am

    And my parents told me to ignore bullies. It didn't work then and it won't work now. It won't work here either.

  • 339. Dr. Z  |  June 7, 2014 at 6:26 pm

    Hey Jacob – it is time for the EoT staff to start delegating moderating responsibility to some of the regular posters here. We have offered several times now.

  • 340. deppy  |  June 8, 2014 at 1:02 am

    You guys should also use a proxy rbl for the posting function. The guys at efnetrbl.org run a very good one that would block a large chunk of the abuse. It's easy to setup and would cut way back on the trolling. We had problems with trolls before too and stopped having the problems when we started tracking them in that rbl database.

  • 341. Eric Koszyk  |  June 8, 2014 at 5:20 am

    Please require us all to register. That would go a long way to cut down on the trolls AND cut down on frivolous posts.

    And please delete all posts from banned trolls.

    Telling us not to respond to trolls is not the answer. Doing something about the trolls is.

  • 342. Pat  |  June 8, 2014 at 5:50 am

    Jacob, please delete the message from the banned troll! And since you don't have time to monitor the comments regularly, once again consider delegating moderation to regular trusted posters here, as has been asked many many times.
    It's totally useless to delete this several days later.

  • 343. TheMirror  |  June 8, 2014 at 6:56 am

    That is a very demanding thing to say. Is the color in here adequate?

  • 344. Deeelaaach  |  June 9, 2014 at 1:22 am

    Jacob,
    I love this site. Well, I loved it before the troll arrived. I learned a lot about how the law operates, primarily from other comments. A someone said before, I come for the comments more than the original posts. Now it is nearly impossible to maintain a train of thought through the comments section with all the distractions by people who are only here to disrupt and who also revel in their ability to disrupt.

    This is only one of two blogs of any kind that I regularly read. The other one I keep checking, but they are not longer posting I guess due to burnout. I'd hate to lose this one too.

  • 345. Sagesse  |  June 7, 2014 at 3:40 pm

    For those keeping count:

    "Milwaukee County issued 146 marriage licenses to same-sex couples from Friday afternoon to 1 p.m. Saturday, when the clerk’s office closed. In Madison, the Dane County clerk’s office issued 129 licenses from the time of the court decision to 3:30 p.m. Saturday. An employee said most of those were for gay couples but a few opposite-sex couples had taken advantage of the extended hours."

    Hundreds of couples rush to marry in Wisconsin [Washington Post]
    http://www.washingtonpost.com/national/gay-marria

  • 346. Zack12  |  June 7, 2014 at 4:30 pm

    I fully endorse the idea of a couple of trusted members doing mod duty.
    As someone who was a mod (I don't have the time to do it here) on another website way back when, I can tell you that isn't as easy as it sounds.
    While there was no excuse for troll posts to stay up as long as they did, (anything beyond several hours is unacceptable), to expect immedite action isn't going to happen either.

  • 347. Ragavendran  |  June 7, 2014 at 4:54 pm

    See the video at the top of this article. This is what this ongoing war means to same-sex couples and the children that they are raising. This is the reason we are fighting for our rights. Because it is worth it. All of it. Every single day spent waiting. Every single state. Every single lawsuit. Every single voice that speaks out. Every single minute we spend on this website.

  • 348. Jen  |  June 8, 2014 at 8:51 am

    Thank you for your consistently thoughtful and valuable posts. Your being here adds so much to my enjoyment and understanding of what's happening with ME litigation. Just wanted you to know how much I appreciate you, being as I'm a newbie here.

  • 349. Ragavendran  |  June 8, 2014 at 10:47 am

    You're most welcome!

  • 350. TKinSC  |  June 7, 2014 at 5:49 pm

    Holy cow! Have you seen what it costs to get married at the Milwaukee County courthouse?

    "The marriage license fee is $110.00 payable at the time of filing an application. We accept cash and credit/debit cards. Note: there is a convenience fee of 3% for all credit/debit card transactions. Personal checks are not accepted."

    "Civil ceremonies are performed at the Milwaukee County courthouse, Monday through Friday, by appointment only. The fee for civil ceremonies is $100.00 (cash only) payable on the day of your wedding."

    That explains a lot.

  • 351. Corey from Maryland  |  June 8, 2014 at 8:26 am

    It is really sad that you don't have much of life that you keep posting to this site. You are a walking breathing losing cause.

  • 352. TKinSC  |  June 8, 2014 at 10:55 am

    Shucks, I bet you say that to all the regulars.

  • 353. Orlando  |  June 8, 2014 at 1:51 pm

    Since Jacob has allowed you to become a regular, you would know that's not true since you are obsessed with reading all the posts on this site so you don't miss an opportunity to hold people back. Corey doesn't disparage the LGBT community.

  • 354. Corey from Maryland  |  June 8, 2014 at 3:06 pm

    Only you keep resisting and defending the losing side of history so NO, I would never say that to anyone else on this site except you.

  • 355. Roulette00  |  June 8, 2014 at 4:29 pm

    You're going to be such fun to watch when Bradacs v Haley comes around in South Carolina.

  • 356. TKinSC  |  June 9, 2014 at 12:03 am

    Bradacs is in abeyance pending the 4th CIrcuit's disposition of Bostic. I think it's safe to say that nothing of significance will happen in Bradacs until SCOTUS settles the matter nationwide.

  • 357. RCChicago  |  June 7, 2014 at 6:05 pm

    I'm traveling this weekend with limited internet access. My thanks to all of you for your thoughtful & insightful comments over the course of the last day. It helped me feel in the loop.

  • 358. Terry  |  June 7, 2014 at 6:48 pm

    They banned the wrong IP address. That is why the offending commentor is still showing up. How about you fix that? There should only be one. It's the one who says disparaging comments about the LGBT community that needs to be banned. Once he's gone, I'm sure the spam will go with him.

    And what about the idea of regulars as mods on the site? I haven't seen that addressed.

  • 359. Bruno71  |  June 7, 2014 at 9:57 pm

    Either that or s/he's using proxies or other ways to get around the IP ban.

  • 360. Zack12  |  June 7, 2014 at 11:02 pm

    They have several ways to do that.
    Sad to say, but registering is sometimes the only way to deal with trolls.
    It won't stop them 100% but it makes cracking down on them easier.

  • 361. Steve  |  June 8, 2014 at 4:13 am

    It's really need that hard to get around an IP block.

  • 362. Zack12  |  June 7, 2014 at 11:44 pm

    On a different note, the support the bigoted clerk in PA is getting sickens me.
    I'm sick and tired of people thinking their religious beliefs should be law.

  • 363. Eric Koszyk  |  June 8, 2014 at 7:37 am

    Interesting article about Pride events around the country and how many of them are celebrations of marriage equality victories within the last year.
    http://www.usnews.com/news/articles/2014/06/06/lg

  • 364. Ryan K.  |  June 8, 2014 at 8:49 am

    So do we presume Judge Crabb is simply still reviewing the emergency petition by the state defendants? Maybe got it late on Friday and figures it can wait for Monday now since clerks offices are now closed? Would the AG able to call her and ask what's the dillio?

  • 365. jpmassar  |  June 8, 2014 at 10:50 am

    Almost pitiful.

    Delegates to the Indiana Republican Party convention have overwhelmingly approved a party platform opposing gay marriage.
    http://www.news-sentinel.com/apps/pbcs.dll/articl

  • 366. skrekk  |  June 8, 2014 at 12:13 pm

    They wouldn't be Republicans if they thought all Americans deserved equal rights.

  • 367. Bruno71  |  June 8, 2014 at 12:10 pm

    Well, if this is how it's gonna be with TK running roughshod over this site, I'm going to have to start considering not reading the comments anymore. Obviously the comment setup here is not nearly equipped to handle even the least bit of moderation, and the recent changes made have been for naught. Too bad when one person with such hatred in their hearts can be allowed to ruin a site for the so many great folks here. And he doesn't even care how much he's angering people. What an asshole.

  • 368. Andrew  |  June 8, 2014 at 1:06 pm

    If you don't like TKs posts, then just don't read his posts. I admit I've only read a couple of his posts, but the ones I did read were supportive of the detail used in Judge Crabbs ruling even though he stated he personally would have ruled in favor of the ban. He mentioned how SCOTUS will be looking for the best reasoned ruling to take if it ever takes a case. If TK were banned from this forum, I wouldn't have been exposed to that insight. His words can't make me mad or upset or hurt. Only my choosing letting those thoughts into my mind can negative comments hurt me. It seams that if any forum is to be open to disparaging comments against an idea, it should be this forum that supports tolerance of lifestyles and ideas. Again, just stop reading a post if you don't like it. His ideas are everywhere in society and at least he is being exposed to our ideas by being on this site. I'm sure that is having at least some effect on the evolution of his ideas.

  • 369. Tina  |  June 8, 2014 at 1:29 pm

    Time to play another edition of Missing The Point Entirely. This person is the exception, and we don't manage to the exceptions. This one is also likely an anti-gay…using the word "lifestyles" is a dead giveaway.

  • 370. Steve  |  June 8, 2014 at 1:39 pm

    Also his constant use of scare quotes around words like "marriage"

  • 371. Sean  |  June 8, 2014 at 1:34 pm

    If you've only read a couple of his posts, go back and read the 500 others and all the history of that case. Then maybe you can make a relevant comment

  • 372. KarlS  |  June 8, 2014 at 5:51 pm

    If you knew 9 more things, you would be an idiot. Go the fuck away.

  • 373. Dr. Z  |  June 8, 2014 at 9:26 pm

    Well, see, the thing is that this site is supported by voluntary contributions from a readership that's getting pretty ticked off about the unwillingness or inability to seriously confront the troll. Not good for the long term welfare of the site.

  • 374. Pat  |  June 8, 2014 at 1:09 pm

    Well, true, but at this point, the admins don't really have an excuse anymore. Jacob tried the "take it easy, just ignore trolls, we are looking into this" approach before and got a huge backlash. His follow-up post almost led us to believe they had taken things seriously.
    But when they let this happen again, even though they have been reading comments recently (Scottie warned someone about an inappropriate tone but totally ignored the repeated calls for stricter action!). And they have indeed never addressed all the requests for delegating moderation to trusted users. It's really disappointing and disrespectful of all their readers.
    Needless to say, it's hard to imagine their next fundraising will be as successful as usual.

  • 375. AnitaMan  |  June 8, 2014 at 1:32 pm

    What readers are you advocating for? Are you a NOMbie?

  • 376. Dann  |  June 8, 2014 at 2:12 pm

    AnitaMan? Really? No self respecting gay person or friend of gay people would use that old drag name. Dead give away troll!!

  • 377. DrPatrick1  |  June 8, 2014 at 3:08 pm

    Old TK= irritating thorn who would monopolize the comments section by often inserting random or off topic crap only meant to disparage. Occasionally he had an on topic dissent from the majority opinion of readers of this site.

    New TK= irritating thorn who still likes to monopolize the comments section! but only now in response to his objections to what others have said. He is now, based on the few comments I have read from him, more often to be on topic with his dissents.

    The truth of the matter is that there is a very large segment of the population who will continue to attack us using scare quotes and will try to exclude us from their image of America. We cannot delete them all. It would seem that the way to block a user from this site is more challenging than first guessed, and we may be stuck with him and his ilk.

    This is without question the most pertinent and up to date site out there with this information, and with a forum that although it has it's issues, continues to allow us to share with each other our thoughts on the various cases. Simply abandoning this site gives the ultimate victory to the trolls.

    We need a moratorium on this exclusionary policy, especially since it seems it isn't working in any case. Perhaps there should be a threshold for blocking specific comments "collapsed by the community" in cases where a significant number of thumbs down have been collected (-10 might be a good start). It seems that those running this site will not be able to simply prevent a user who is committed to making a comment from doing so, so another solution should be tried.

  • 378. Bruno71  |  June 8, 2014 at 3:41 pm

    Yes, this website CAN delete them all (at least all the ones that post here), if they so choose. They choose not to. The point is that this user was banned, and is now trying to circumvent the ban. At this point, it has nothing to do with how he comments, but the fact that he shouldn't comment here based on past behavior. Period. And if they can't find a way to effectively deal with a rogue commenter, it's a problem with the moderation and the system.

  • 379. DrPatrick1  |  June 8, 2014 at 3:57 pm

    But a problem they freely admit. They cannot patrol this site 24/7 and don't want to. They have specifically pointed to the weekend as a more vulnerable time for unwanted posts to remain before they can be addressed.

    What I'm saying is the organizers of this site have tried something to stop the problem, thus exposing some loopholes. They can continue chasing TK, an effort I suspect they will not win, or they can continue researching quality information to post to this site. Any efforts at the former will reduce the latter in equal measure.

    Instead, an automated process which collapses highly negative comments, as judged by a net negative or thumbs down score beyond a certain threshold, might be a more legitimate way to deal with the unwelcome comments.

  • 380. Bruno71  |  June 8, 2014 at 4:08 pm

    No one's asking the admins of this site to patrol 24/7. But a comment section that is effectively moderated is not too much to ask. I'm sure they're trying to figure this out, I'm not blaming them per se. But it's obvious that whatever's been done so far has not worked a lick. I only suggested that the comment section as it is now is not one I care to partake in if no lasting change is made. I think that was well within my right to say. You can choose otherwise.

  • 381. Orlando  |  June 8, 2014 at 6:12 pm

    Solution: Unpaid moderators who are regulars.

    NEXXXXXXT!

  • 382. RubyRims  |  June 8, 2014 at 1:15 pm

    Before departing, is it possible to fashion a list of names stating who can stay and who can go? Also, for the right price, I'm sure you can get whatever you want accomplished. Don't be cheap. This isn't Cracker Barrel.

    Gay is good. Gay marriage is almost national. Almost time to carry on.

  • 383. Tina  |  June 8, 2014 at 1:33 pm

    He did name a name. Hint: it's in his first sentence. Quite a simple solution really. Not rocket science.

  • 384. Rochester  |  June 8, 2014 at 1:45 pm

    We now have TK posting as "Andrew", "RubyRims" and "AnitaMan" all trying to "defend" him or convince that no moderation is needed. If they had banned the IP address of the correct TK, he wouldn't now be posting as AnitaMan, etc. because we wouldn't have gotten to this point.

    This place is becoming an unruly cesspool. All because they won't allow actual mods on the site. The internet is several years old and mods aren't anything new. Get a clue if you really care.

  • 385. AnitaMan  |  June 8, 2014 at 2:10 pm

    Good thing you're not in control of moderation because you would be banning the wrong person. I don't know who TK is. Also, why would you ban me? What have I said that is so offensive? I'm gay. I'm on everyone's side. I'm a sincere advocate for obtaining our marriage rights, as is, through the federal court system, and not with the voters who failed us, big time, in 2008.

  • 386. Rochester  |  June 8, 2014 at 2:40 pm

    See your comment above. Connect the dots.

  • 387. Zack12  |  June 8, 2014 at 3:08 pm

    We've rehashed all the complaints and suggestions before so I won't go into them.
    All I'll say is this.
    Yes it is HARD to run a website and be a mod of it. I understand (from own experience) that being able to get rid of trolls or bad posts in five minutes isn't going to happen.
    But to have them up for anything beyond a couple of hours isn't acceptable.
    To let a troll who was banned come back and mock the site isn't acceptable.
    And to ignore the suggestions of people whom have offered to help.. all due respect, your request for $$ in the future is likely to be turned down by many folks.

  • 388. Pat  |  June 8, 2014 at 4:41 pm

    +1000

  • 389. AnitaMan  |  June 8, 2014 at 5:30 pm

    The forum has been in operation for years, and it still attracts an old school audience. I know this because their names appear every now and then. In my opinion, the operators have been keeping it running as a friendly service to the LGBTQIA community, and nothing more. I suspect they have big lives outside of it. When/if the forum collapses, so be it, it has served its purpose well. The LGBTQIA community will carry on. The financial withdrawal threats seem a bit shallow in comparison to the content of this forum that has been utilized by many, many people.

    Ta Ta.

  • 390. KarlS  |  June 8, 2014 at 5:37 pm

    Come on, get serious…the solution is not rocket science, as has been pointed out ad nauseum in this very thread. Of course the owners of the forum have lives, we wouldn't be here if they didn't…but they sure could delegate some responsibilities to others who DO have the time, expertise and ability to handle the idiots. I myself would never consent to do it because I have zero tolerance for assholes.

  • 391. SoCal_Dave  |  June 8, 2014 at 5:22 pm

    It has been suggested before, but I would like to bring it up again and encourage requiring commenters to register. It's not difficult to do, and users can set it to auto log in if you want.
    I moderate on another forum and registration saves us a lot of time and trouble dealing with both trolls and spam. It's not foolproof but helps a lot and is a small price to pay.

  • 392. Malcolm Swall  |  June 8, 2014 at 5:38 pm

    Well, I don't recall posting here before, but I have been reading every article and almost every post, every day. For myself, as a straight ally with two CA married lesbian sisters, I am as pro-SSM as they come. There is no other political topic that comes close to this issue.

    That said – I don't get much fussed by the so called trolls here – they are obviously wrong, (and are right up there will anti-vaxers, climate change deniers, birthers, creationist and the rest of the irrational right.) but often entertaining, and easily rebutted or ignored.

    This site is great, and if the only thing driving you away is the occasional idiot, well IMHO you are throwing the baby out with the bathwater.

    Malcolm T Swall
    San Diego CA

  • 393. Orlando  |  June 8, 2014 at 6:00 pm

    That's nice, but not an excuse to deal with the problem by trying to rationalize it away. Other sites deal with it this one can too. Moderating is not a new invention.

  • 394. Malcolm Swall  |  June 8, 2014 at 7:21 pm

    Not trying to "excuse" anything; just expressing my opinion.

    For me, the site is doing just fine. I have been reading the site since the begining…..what a geat resource.

  • 395. Orlando  |  June 8, 2014 at 11:14 pm

    It can be a great resource without the cesspool. They're not mutually exclusive.

  • 396. TPAKyle  |  June 8, 2014 at 6:01 pm

    So maybe I'm over simplifying things here, but wouldn't there be a way to delete posts that hit a certain threshold of negative votes from voters with known IP addresses? That way, the comments could be user-moderated.

    As a long time lurker and sometimes poster, this site is the best resource for real commentary on each of the ME cases as they come up. I'm fine with open dialog, but it appears that the trolls that have been visiting here have jumped from their own sinking ships. Given the way things have been going for the anti-gay side, this is a trend that will continue.

  • 397. Sam  |  June 8, 2014 at 10:27 pm

    I'm so tired of seeing every post deteriorate into bitching and moaning about the "trolls," because people are too lazy to ignore them. You're simply giving the troll exactly what he/she wants.

  • 398. Orlando  |  June 8, 2014 at 11:12 pm

    Or the site admins could designate mods and the bitching would stop because, you know, something was being done about the umpteenth requests that have been made. People could actually feel good that the admins were taking care of the site instead of empty promises.

  • 399. AnitaMan  |  June 9, 2014 at 8:51 am

    I think a more pointed criticism is required when addressing the obsessions of the wannabe moderators. I think they aren't any different from the "troll" they claim is causing their unbalanced anguish. I also think this is a beginning of a greater void. For decades, the gays have been discriminated against under the law and they still are, but the marriage issue is a home run. The Christianist enemy isn't as powerful, right now, as they once were, and this might leave a void. The void is being filled with this empty conversation.

    TTFN.

  • 400. Japrisot  |  June 8, 2014 at 11:52 pm

    Wow. I think I will be writing directly to Rick Jacobs about how poorly operated this Courage Campaign product is. At this point, it's just damaging the brand.

  • 401. Orlando  |  June 9, 2014 at 12:21 am

    Thanks Japrisot. That would be helpful. He needs to be made aware. I think they're in over their heads. They now how post articles, but not how to manage the site.

  • 402. Pat  |  June 9, 2014 at 5:41 am

    I emailed Jacob yesterday and got some feedback: He replied that
    "We blocked TK under his/ her new user names and IP addresses. If he/she is still commenting, there's not really anything we can do. It's basically a game of whack a mole. Our only solution would be to make everyone sign up for accounts to comment, which we've had significant pushback on before and have opted against."

    Then I asked about the most pressing request done here, i.e. (1) to delete the old troll comments and (2) to delegate moderation rights to trusted users, here is Jacob's reply:
    "I assure you (as I've said, so many times) that we do read the comments! As for deleting the comments, like I've said before, we have very limited resources, especially on the weekends, so that's something we're not able to get done on a Saturday or Sunday. Deleting old comments is something that we can do when we have the time, but it's not a top priority. We have discussed this idea of moderation rights and have not made a final decision on it. I can post an update when we've made a decision. "

  • 403. Eric Koszyk  |  June 9, 2014 at 6:37 am

    They need to force everybody to register for accounts. That would be an easy solution and would make this site much more functional.

    Also, didn't they claim to have hired a part time moderator who could deal with this problem? What happened to that person?

  • 404. BenG1980  |  June 9, 2014 at 6:55 am

    I agree. I think as many people as possible should now proactively register to show the site administrators that it's a feasible option. I registered last night in less than 5 minutes.

  • 405. StraightDave  |  June 9, 2014 at 7:05 am

    Jacob,
    1) What were the reasons for the push back you got on registration? How long ago was that? Are we talking 3 people or 300?
    2) What is your calculation for the overall net impact on the site? Why would that be worse? I have to admit I'm a bit jaded by justifications that don't have openly-expressed substance attached to them.
    3) How, exactly, will registration minimize our current problem, and does that still require admin effort? How are you gong to address that part of it, since registration isn't a magic bullet all by itself?.

  • 406. Bruno71  |  June 9, 2014 at 8:57 am

    Having registered only comments would allow the mods an easy solution to deleting a rogue user in one fell swoop. It would probably turn away some people though…many people are loath to register for anything, even if it's free and doesn't require more than provision of an email address and password. It probably isn't the ideal solution here, but if the site can't be moderated effectively otherwise, it would be a better situation than what we currently have.

  • 407. ebohlman  |  June 9, 2014 at 11:38 am

    Apparently there are some problems with the way IntenseDebate works on phones and users for whom it doesn't work can only post as guests.

  • 408. JayJonson  |  June 9, 2014 at 6:28 am

    What I don't understand is how Scottie came here and immediately admonished some long-time and valued commenters for making a joke about the troll, yet did nothing about the troll, who keeps making distracting, annoying, sometimes offensive, and always irrelevant comments. Surely, if Scottie monitors the site to the extent of pointing out the "inappropriate" tone of a response to the troll's comments, he could at the very least delete the comments by the troll.

  • 409. StraightDave  |  June 9, 2014 at 6:54 am

    I would have been comfortable with him doing both, and promptly. Sorry, Scottie, I generally like and respect all the work that you do here, but that time you grabbed the wrong end of the stick. I realize that it may have been easier and quicker to do at the moment, but that didn't make it the right priority. Sometimes the right thing to do is also the hardest.

  • 410. Pat  |  June 9, 2014 at 3:24 pm

    Since the complaints get totally ignored on here, I suggest you guys use the email addresses they provided in a recent post about comment (jacob AT couragecampaign DOT org & scottie AT couragecampaign DOT org). It worked pretty quickly for me to get some feedback. And it makes it harder to ignore.

  • 411. Eric Koszyk  |  June 9, 2014 at 6:47 am

    Hey look, someone just posted to two stories that are almost a year old (June 10, 2013). Didn't the owners of this site say they would shut down the ability to post to a story after 6 months?

    It appears that they did not do anything they said they would do. Let's just admit it. They don't care what we think; they just want our $.

    I'm really bummed out. I have been following this site since its beginning and have never remembered it being so awful. Soon it will be impossible to even read the comments section. I really don't have the time to read people arguing back and forth with trolls.

  • 412. Orlando  |  June 9, 2014 at 6:50 am

    Yes, Eric, they did say that. Empty promises.

  • 413. AZLady  |  June 9, 2014 at 8:39 am

    I al also a long time reader, and enjoy the high level of analysis provided in the comments section. While I also ignore the trolls, are there other sites that I could follow that would provide the quality comments I have come to enjoy?

  • 414. davep  |  June 9, 2014 at 9:08 am

    The point is that, if you let trolls repeatedly disrupt the site, this site will no longer be that excellent source of quality comments. First, because they get harder to find as you have to wade through the bullshit, then because legitimate commenters who actually have something to contribute get fed up and stop participating. If the problem is left unaddressed, you will sooner or later have to look elsewhere for the best source for those quality comments.

  • 415. Eric Koszyk  |  June 9, 2014 at 9:25 am

    While it doesn't have many commentators, the following site is the best resource for marriage equality information that I've found:
    http://purpleunions.com/blog/

  • 416. AZLady  |  June 9, 2014 at 7:48 pm

    Thank you.

  • 417. brandall  |  June 9, 2014 at 8:41 am

    I don't believe this has been posted. There are so many posts related to trolls, it's hard to follow the important topics. Apologies, if this is already posted:

    MADISON, Wis. (AP) — A federal judge has scheduled a hearing on the Wisconsin attorney general's request to put gay marriages on hold in the state.

    U.S. District Judge Barbara Crabb scheduled the hearing for 1 p.m. Monday. It's in response to an emergency request filed Friday night from Republican Attorney General J.B. Van Hollen.

    Read more: http://host.madison.com/news/state-and-regional/f

  • 418. Terry  |  June 9, 2014 at 9:12 am

    I can tell you they deleted at least two of the wrong IP addresses. One was mine from the comment I wrote earlier in this thread. They were both pro-LGBT and one was trying to get this site's attention so that something would finally be done. If that wasn't done, it would likely be business as usual here. It half-worked. Enough people complained and the site has taken pseudo action, but it's showing empty promises are being made (part-time mod which there has been no [effective] evidence of, no commenting older than 6 months – we know that's still happening, etc.). Still need community mods though.

    They are good content providers but poor site administrators.

    Since the IP addresses of pro-LGBT posters are being deleted, as ludicrous as this sounds, I'm starting to wonder if TKinSC is an inside person. Either that or they're inept at running a website and in over their head – which we know they are. Again, I'm not referring to content – just administration.

    The one who posted below in this thread should have been banned. It wasn't banned, and is still posting. People are still understandably bitching.

    Get and ban the IP address for below commenter and the BS will go:

    TKinSC
    Even if the gene exists, it only goes to predisposition. If people have free will (and our law presumes that they do) then they can still choose to buck the call of their genes.

  • 419. Terry  |  June 9, 2014 at 9:15 am

    Whatever IP address that italicized comment above come from is where to aim.

    You're welcome.

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