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Marriage Confusion in Wisconsin

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By Matt Baume

Wisconsin’s marriage ban is unconstitutional. There’ve been more big defeats for the National Organization for Marriage. Utah officials resist a ruling that they must recognize the marriage licenses that the state issued to gay and lesbian couples last winter. And Pennsylvania voters show their support for the freedom to marry.

Late on Friday, District Court Judge Barbara Crabb ruled that Wisconsin’s ban violates the equal protection clause of the US Constitution. Right now it looks like marriage can’t start yet. Plaintiffs will need to file some additional briefs, and have until June 16th to do so. Attorney General J.B. Van Hollen will appeal the decision, so the case is still far from over.

But marriage is safe in Oregon. The US Supreme Court last week rejected an attempt by the National Organization for Marriage to stop the state from issuing licenses. This is the fourth in a long string of defeats for NOM in Oregon. They had tried to intervene very late in the marriage case, and they’ve been denied at every turn. NOM has one more pending issue: an appeal to the Ninth Circuit for permission to intervene. It’s very unlikely that they’ll be successful. And in the meantime, marriage equality will continue throughout the state, just in time for Pride.

Anti-gay groups got a similar ruling this week in Florida. Groups that campaigned to pass an anti-gay ballot measure had attempted to intervene in a lawsuit challenging Florida’s marriage ban. But Judge Sarah Zabel has ruled that marriage equality poses no threat to those groups and they therefore have no standing to participate in the case. Oral argument is scheduled for July 2.

NOM also got some bad news from the IRS last week. For years, NOM has been claiming that the IRS was part of a vast conspiracy to leak an old tax return of theirs. But now a judge has ruled that, in fact, there was no conspiracy, no gross negligence, and no hope for NOM to win putative damages. According to the court, an IRS employee simply forgot to redact some information a few years ago. This will hopefully put an end to one of NOM’s persistent talking points about being the victims of an organized persecution.

The state of Utah is pulling out all the stops to avoid recognizing married gay and lesbian couples. A district court ruled that they must honor the licenses that the state issued several months ago, but Utah officials announced last week that they will appeal that decision. The Tenth Circuit has issued a one-week stay of the ruling while they consider the appeal.

Last week we reported that a North Dakota lawsuit would be filed within 6 to 8 weeks. But the legal team there is apparently moving fast, because that suit was filed on Friday. That means that every single marriage ban in the country faces at least one legal challenge.

A new survey in Pennsylvania shows that most voters approve of Republican Governor Tom Corbett’s decision to not fight marriage equality. According to Public Policy Polling, 56 percent say he made the right decision, with just 33 percent opposing the governor’s move. Marriage has been legal in Pennsylvania since May 20th.

117 Comments

  • 1. Alec C  |  June 9, 2014 at 11:26 am

    Also, they received another slapdown in Maine, "Ethics Commission hits anti-gay marriage group with record fine, orders disclosure of donors from ’09 campaign": http://bangordailynews.com/2014/05/28/politics/et

  • 2. KarlS  |  June 9, 2014 at 11:31 am

    "Putative" is a word but it's the wrong one here. Punitive is the right one.

  • 3. grod  |  June 9, 2014 at 11:42 am

    Use of "Confusion" header may feed into need for stay More counties issue licenses: 2:35 EDT http://abcnews.go.com/US/wireStory/federal-judge-

  • 4. NTinGA  |  June 9, 2014 at 11:54 am

    Has the hearing before Judge Crabb concluded yet?

  • 5. BenG1980  |  June 9, 2014 at 12:00 pm

    This article indicates she declined a stay, but also stated that marriages should not have taken place immediately.
    http://host.madison.com/news/local/crime_and_cour

  • 6. brandall  |  June 9, 2014 at 12:07 pm

    Judge Barbara Crabb, in her first remarks on her Friday ruling tossing out Wisconsin's constitutional ban on same-sex marriage, declined to issue a stay of the decision Monday but said she does not condone the wave of marriages that followed.

    Crabb said her ruling was a declaratory judgment, not an injunction. That means that she found the amendment unconstitutional but has not immediately barred its enforcement. Instead, she has ordered both sides to prepare briefs on how an injunction should be framed.

    She said the marriages conducted in Dane and Milwaukee counties over the weekend, and in other counties Monday, should not be going forward.

    ? does this stop them? For such a wonderful ruling, she has certainly caused confusion.

  • 7. Bruno71  |  June 9, 2014 at 12:09 pm

    Not surprised. She seems to be very "by the book."

  • 8. grod  |  June 9, 2014 at 9:02 pm

    46 county clerks are issuing marriage licenses. In the Oregon case on a request by NOM, the Supremes did not enter a stay. At the end Crabb reference is case. The appeals court want to hear by the end of the day on Wednesday.

  • 9. Lymis  |  June 10, 2014 at 6:05 am

    I'm not a lawyer. I hope someone will correct me if I'm wrong.

    Without the injunction, she invalidated the ban and all associated laws that similarly ban or restrict marriage equality and recognition, but without the injunction, she did nothing to authorize anyone to actually issue marriage licenses or perform weddings.

    It follows logically that clerks are free to issue licenses and people are free to officiate at weddings, but it doesn't actually follow legally until a court requires it or the legislature or administrators revise the laws and policies.

    On the other hand, since her ruling actually DOES strike down the amendment and laws, it's hard to support the idea that the marriages would be invalid – just that the people issuing licenses or performing the weddings might be subject to penalties for doing so.

  • 10. skrekk  |  June 9, 2014 at 8:09 pm

    Actually she's being coy and said that if marriages are taking place, it's not her problem:

    "I understand defendants' concern that some county clerks have been issuing marriage licenses to same-sex couples since I issued the June 6 decision," Crabb wrote in an order after the hearing, "but that is not a result of an injunction by this court. Thus, if defendants believe that a particular county clerk is issuing a marriage license in violation of state law, that is an issue outside the scope of this case."

  • 11. JamesInCA  |  June 10, 2014 at 12:45 pm

    This seems to support my initial theory, that she left it vague and set a (comparatively) long schedule for briefs on a stay precisely in order to give enterprising clerks room to move forward.

  • 12. JamesInCA  |  June 10, 2014 at 12:45 pm

    Well, briefs on an injunction, to be precise, which could then be subject to a stay.

  • 13. Thomas  |  June 9, 2014 at 12:18 pm

    The article seems to indicate that although she did not intend her ruling to start marriages immediately in Wisconsin, she has no intention of doing anything to stop them. It seems that she is telling the state that the actions of the clerks are the state's problem since they were taken without any authorization by her. I find the predicament this puts the state in very amusing. Does anybody have any idea what the state's options are?

  • 14. Bruno71  |  June 9, 2014 at 12:44 pm

    In a state like California, the county clerk reports to the AG, but I don't know exactly how it works in Wisconsin. It obviously doesn't seem like the AG has authority to tell these clerks to stop distributing licenses to same-sex couples. But if the clerks don't report to the AG, why was the AG a defendant in the case?

  • 15. TKinSC  |  June 9, 2014 at 12:47 pm

    No injunction has been issued, just an opinion. The state's options are to do whatever they could do before the opinion was issued.. Meanwhile, the "marriages" will likely be declared invalid, even for federal purposes. Maybe Chris Abele will volunteer to refund everyone's license fee.

    "she has no intention of doing anything to stop them"

    Of course not, as she is not a Wisconsin law enforcement officer. That's Van Hollen's job.

  • 16. ebohlman  |  June 9, 2014 at 1:06 pm

    I actually agree with your analysis, and surely Van Hollen knows that (given that his name is "JB Van Hollen" and not "Larry Klayman" or "Orly Taitz"). Yet he's currently pursuing the case in a venue that obviously doesn't have jurisdiction, rather than, say, asking the notoriously conservative WI Supreme Court for an emergency order against the clerks. This simply doesn't make sense to me; I have to conclude that this is some form of political theater.

  • 17. Thomas  |  June 9, 2014 at 2:00 pm

    It doesn't make sense to me either, other than political theater my only other explanation is legal incompetence. One of the lessons I have taken from following the ME legal battles is that state's A'sG are often not very good lawyers. They are often completely unprepared for anything unusual happening. For most the job is one they sought as a steppingstone to higher office and politics is their main interest not the law.

  • 18. MichaelinFlorida  |  June 9, 2014 at 2:57 pm

    ".. not very good lawyers." is right. John Eastman is , according to NOM Director of the Center for Constitutional Jurisprudence at the Claremont Institute and Professor of Law and former Dean at Chapman University School of Law:
    The lowest ranked law school in the nation.

  • 19. Bruno71  |  June 9, 2014 at 2:59 pm

    "law school"

  • 20. karen in kalifornia  |  June 9, 2014 at 3:54 pm

    The Claremont Institute is a right wing think tank. Christine "I am not a witch" O'Donnell" did a fellowship there. http://www.thenation.com/article/155335/claremont

  • 21. arie  |  June 10, 2014 at 7:58 am

    Actually, John Eastman clerked for justice Clarence Thomas, so he's not really a complete no-name lawyer.
    NOM's timing in the Oregon case was really odd though, they screwed-up big time.

  • 22. AnitaMan  |  June 10, 2014 at 8:09 am

    I disagree. I think Eastman is a total no-name. We're only as good as our last job. For Eastman, he is the lowest common denominator serving the lowest common denominator. His better days are way, way behind him. Eastman's anti-gay obsessions are the result of unresolved childhood issues. He can't grow as a well-adjusted human throughout his life course. He is also powerless to control our lives.

  • 23. ebohlman  |  June 10, 2014 at 1:20 pm

    Their timing may have reflected a (long shot) strategy: make sure that the deadline for getting a repeal initiative on the ballot passes before trying to jam up the case.

  • 24. davep  |  June 9, 2014 at 1:24 pm

    Yes. Although for repeated use of scare quotes to describe people's civil marriages you get a big fat double-middle-finger Fuck You.

  • 25. Pat  |  June 9, 2014 at 4:09 pm

    Oops, careful, Scottie is going to give you a warning! 😛

  • 26. KarlS  |  June 9, 2014 at 6:21 pm

    What is truly amusing and amazing is that your most excellent post "fuck you" has 15 upvotes and mine where I called him a miserable little prick has 2 down. Oh, well, fukkit.

  • 27. davep  |  June 9, 2014 at 6:29 pm

    If it's any consolation, I upvoted your comment. Yeah, I'm sure both of us can, and perhaps should, refrain from stooping to potty mouth responses. But I'm not making any promises.

  • 28. StraightDave  |  June 10, 2014 at 3:05 pm

    Not likely, with all the up-votes you've both been getting lately 🙂

  • 29. Louise  |  June 9, 2014 at 1:36 pm

    I thought you were going to take care of this Jacob. Fix it!

  • 30. KarlS  |  June 9, 2014 at 1:58 pm

    Tell your Uncle Dad we said hello, you miserable little prick.

  • 31. Terry  |  June 9, 2014 at 2:01 pm

    Jacob: the poster above who uses quotes around the word marriage thereby disparaging the LGBT community is the IP address that should be banned….

    unless you want to continue to allow disparagement of the LGBT community on this site.

    Let's see what happens.

  • 32. bayareajohn  |  June 9, 2014 at 2:11 pm

    What will happen is that there is a troll out there who, one day very soon, will be able to say "I'm the one who brought down EOT!"

  • 33. KarlS  |  June 9, 2014 at 2:50 pm

    And who is perilously close to succeeding. Bah.

  • 34. Corey from Maryland  |  June 9, 2014 at 8:15 pm

    TKinSc, can't you see that you have lost? It is over. Each little post that you make implicitly or explicitly defending the exclusion of same-sex couples from marrying is a lost cause. You can keep using this forum as your little playpen since you have nothing else better to do with your time but ultimately you will wake up and see that it is all over; the United States WILL have marriage equality in ALL 50 states.

  • 35. debater7474  |  June 9, 2014 at 12:46 pm

    The 7th circuit will undoubtedly be issuing a requested stay soon. Even though the circuit is based out of Chicago it is unusually Republican, with the present split on the court standing at 7-3 in the Republicans' favor.

  • 36. ebohlman  |  June 9, 2014 at 1:13 pm

    A stay on what? What does it even mean to stay a declaratory judgment? Is the Seventh going to seal it and shake their fists demanding that it be removed from the Internet?

    For once TKinSC is right that the dispute between the executive branch and the clerks is, in the absence of a Federal injunction, purely a matter of state law. Van Hollen plainly has State remedies open to him, but instead of pursuing them he's barking up the wrong tree. I just can't figure out why.

  • 37. debater7474  |  June 9, 2014 at 1:17 pm

    True, but for practical purposes it seems that whether or not an injunction was granted is irrelevant because clerks are issuing licenses. He's asked for a stay, and so the 7th is likely to grant the motion to whatever extent that they can.

  • 38. BenG1980  |  June 9, 2014 at 1:23 pm

    There's nothing for the 7th Circuit to stay yet. As ebohlman stated, the AG is free to take the issue up with the county clerks, but Judge Crabb hasn't enjoined enforcement of any laws, so the 7th Circuit is the wrong venue.

  • 39. Bruno71  |  June 9, 2014 at 1:32 pm

    But that's the question. How does he take the issue up with the county clerks? I'm sure if he could force them to stop, he would have. So he may have to go to state court? Very confusing.

  • 40. Ragavendran  |  June 9, 2014 at 1:44 pm

    Yes, the Wisconsin Supreme Court would be the logical venue for emergency remedy for this issue, as ebohlman has pointed out. There is nothing for the Seventh Circuit or even SCOTUS to stay, and neither has jurisdiction over Wisconsin county clerks in this matter.

  • 41. Bruno71  |  June 9, 2014 at 1:54 pm

    I also find it very strange that the Gov & AG are named defendants in the case but don't seem to have authority over what the county clerks do with marriage licenses.

  • 42. RobW303  |  June 10, 2014 at 10:21 am

    The clerks are only in charge of issuing and recording licenses, they have no control over how the state treats the registered marriages; for instance, the clerks themselves don't grant benefits. That's why the governor and AG, as well as certain department heads in charge of state services, may be named as defendants, representing the state as a whole, even if they have no direct authority over the clerks. Also, when the legitimacy of articles of law are challenged or when conflicts in law must be resolved (rather than merely arguing about application or violation), it is appropriate to name the governor and AG, as the legal representatives of the state. At least, that's my commoner's understanding.

  • 43. Bruno71  |  June 10, 2014 at 11:12 am

    But we've seen in other states (Virginia, Oklahoma), where the gov and AG were not named in these suits. So it obviously varies by state, and I would think may vary as to how the district court chooses to proceed on issues of standing.

  • 44. ebohlman  |  June 9, 2014 at 1:57 pm

    Same way PA dealt with Hanes, AFAIK. I'm as puzzled as you are as to why he's not, as far as anyone knows, trying.

  • 45. Bruno71  |  June 9, 2014 at 2:02 pm

    If he can't personally tell the county clerks to cease and desist, he should realize it's a Wisconsin issue and go about it in the state court system. But he goes to the federal judge first, who hasn't even issued an official order. I can only conclude that maybe he's not the sharpest knife in the drawer.

  • 46. StraightDave  |  June 9, 2014 at 2:08 pm

    The same people that elected him also elected Scott Walker. WI must have been going thru a bad patch.

  • 47. Zack12  |  June 9, 2014 at 2:17 pm

    And Ron Johnson, who is hopefully going to be a one and done Senator.

  • 48. grod  |  June 10, 2014 at 3:00 am

    Ben agree, Arkansas Supreme Court denies request for appeal due to the lack of a final order and deny the petition for emergency stay as the matter is still before the trial court. [went back to trial court, Judge entered a final order, back to Supreme and two days later granted] http://posting.arktimes.com/media/pdf/05142014171

  • 49. Guest  |  June 10, 2014 at 1:13 pm

    The 7th Circuit issued a decision saying they lacked jurisdiction to issue a stay, then retracted it: http://www.lgbtqnation.com/category/archive/newsf….

    More: http://www.jsonline.com/news/wisconsin/us-appeals

  • 50. NTinGA  |  June 10, 2014 at 1:45 pm

    Here's hoping that the "error" was that a clerk issued the decision before the briefs, which are not due until tomorrow, had been filed. Given that there is not a final order by the district judge, the decision saying that the 7th lacks jurisdiction will likely just be reissued tomorrow. However, I still think that a stay will be issued after the district judge issues the injunction.

  • 51. ebohlman  |  June 10, 2014 at 2:13 pm

    Of course, it's now questionable what effect that stay would have, since all it would mean is that the injunction doesn't go into effect immediately. The injunction isn't in effect now (since it doesn't yet exist) and yet clerks are issuing licenses. The stay thus won't give either the district court or the 7th Circuit any authority to stop the clerks that they don't already have (and the consensus is that they don't have any); it will remain a State matter.

    Van Hollen's failure to pursue State remedies (which would appear on the surface to be no-brainers; does anybody really think the WI Supreme Court wouldn't issue a restraining order against the clerks if they were asked to?) and the large number of counties deciding to issue licenses (almost two-thirds; here in IL only 15 out of 102 counties issued licenses ahead of the new law going into effect, even though they all had official blessing to do so) make me wonder if there's some bad blood between various sub-branches of WI's government that's becoming evident in this case. Either that or the administrative relationship between county clerks and the executive branch is quite unlike anything we've seen in other cases, resembling neither California nor Virginia, or even New Mexico.

  • 52. Bruno71  |  June 10, 2014 at 2:33 pm

    Could be both. I'm really curious about the administrative relationship angle. It's at least obvious that the AG either doesn't have the control or can't delegate it properly.

  • 53. StraightDave  |  June 10, 2014 at 3:27 pm

    I think ebohlman may have cracked open an interesting part of the law that I never thought about. Normally an injunction forces someone to do something they otherwise don't want to do. A stay on that injunction means that force can't be applied quite yet.

    But what if the clerks are willing to go ahead anyway in the absence of force, which is what's happening now? Their green light is that their law was declared unconstitutional. That declaration would not be stayed, if you want to be picky about it. Just the order "forcing them to issue licenses" would be stayed. That would allow them to stop if they so desired, but I don't see that it literally prevents others continuing to go forward. That seems to be the internal state issue.

    I think this is about to get more interesting.

  • 54. ebohlman  |  June 10, 2014 at 1:47 pm

    Bizarre. Did they really forget that just the day before they'd ordered briefing on that very issue?

  • 55. NTinGA  |  June 10, 2014 at 1:51 pm

    I don't think the judges forgot. I'm hoping that a clerk working with them misunderstood the directions on when to file the order.

  • 56. StraightDave  |  June 10, 2014 at 3:14 pm

    That suggests they already had their answer written up in advance, and just wanted to look nice and proper by asking for briefs. I actually don't doubt that very much at all. The whole thing is becoming a zoo, anyway. What's next, I wonder? Something to do with the dark innards of WI gov't, I'd bet.

  • 57. Dann  |  June 9, 2014 at 4:15 pm

    I visit this site several times each day because I find it informative and helpful. I've donated several times in the past because achieving equality is something I feel very strongly about. However, if the controllers of this blog cannot get rid of these anti-gay hateful posters, I have no choice but to stop my contributions. It cannot be that difficult to remove the hateful ugly anti-gay comments.

  • 58. Sagesse  |  June 9, 2014 at 5:20 pm

    The degree of 'confusion' is being exaggerated. The WI AG may be more of a politician than a lawyer, but he has legal counsel to advise him. He could do what Kamela Harris did in California, and circulate a legal opinion to county clerks on what Judge Crabb's ruling does and doesn't mean. The county clerks have legal counsel… county counsel… who advise county officials on what their responsibilities are and are not, and what Judge Crabb's ruling does and doesn't mean. We may not know what Judge Crabb's ruling means, but the 7th Circuit certainly does.

    My view is tracking with the others here who think there are political games being played.

  • 59. StraightDave  |  June 9, 2014 at 5:34 pm

    I think the Gov and AG are making the "right" noises to their base, but without committing anything real just yet until they see which way the wind is blowing. They don't want to look negligent by doing nothing, but also might suspect this is about to blow up in their face. Therefore just going thru the motions seems safest. They surely know what does and doesn't have any legal effect.

  • 60. skrekk  |  June 9, 2014 at 8:24 pm

    There's also an attorney who advises the counties association but it's still ultimately up to the clerks as elected officials, until a court orders them to either grant or deny these licenses. http://host.madison.com/wca-alert-on-gay-marriage

  • 61. Sagesse  |  June 10, 2014 at 3:41 am

    Correspondence like this will continue to surface over the next few days. In deciding what to do, WI county clerks are no doubt considering that in WI, it is illegal for LGBT couples to marry out of state, and marriage licences must be issued in the county of residence.

  • 62. RobW303  |  June 10, 2014 at 10:38 am

    It is /technically/ illegal for couples to marry out of state when they could not marry in-state (since legislatures can pass any nonsense they like), but can one state legitimately restrict what its citizens can do in another state? How can you prevent citizens from leaving your state if they aren't even suspected of having committed a crime? And once they cross the state line, don't your state's laws cease to have jurisdiction? At most, a state could bar (re)entry to same-sex married couples, but good luck getting any court to accept that.

  • 63. JayJonson  |  June 10, 2014 at 8:02 am

    Who issued this "marriage alert" and to whom was it sent? All Country Clerks? Please explain.

  • 64. Steve  |  June 10, 2014 at 4:44 am

    All AGs are more politicians than lawyers

  • 65. Ragavendran  |  June 9, 2014 at 10:20 pm

    The Seventh is treading cautiously. They have ordered simultaneous memos on whether they have jurisdiction here by 5pm Wednesday:
    http://www.scribd.com/doc/228891261/14-2266-4
    (Thanks to Kathleen for the link on her Facebook page.)

  • 66. ebohlman  |  June 9, 2014 at 10:49 pm

    Posner is on the motions panel. This could get interesting (but probably won't, since I can't see any of them finding jurisdiction).

  • 67. jdw  |  June 10, 2014 at 12:41 am

    Agree that it might not be, thought this panel would be interesting to see what they come up with if they get the appeal on Crabb's ruling. A trio of RR/GHWB judges born in the 30s. If Crabb were upheld by those three… you have to wonder if it shakes Roberts over into a 6-3 majority by SCOTUS.

  • 68. JayJonson  |  June 10, 2014 at 6:59 am

    Roberts is immovable.

  • 69. jdw  |  June 10, 2014 at 10:08 am

    I think the other three are. I think there's a small % chance that if the cases continue to run the table, and especially if there are a few strong GOP votes at the Circuit level, that Roberts might throw in the towel.

  • 70. StraightDave  |  June 10, 2014 at 10:21 am

    I think Roberts can do it if all the stars are perfectly aligned and he has absolutely no escape hatch – standing, mootness, jurisdiction, ripeness, etc. He won't go down with the ship like the other 3. But he won't do it any sooner than he absolutely has to.

  • 71. Bruno71  |  June 10, 2014 at 11:17 am

    I just don't see Roberts as the type of guy to change his opinion. And he made it pretty clear in oral arguments that he did not see a constitutional right to marriage equality. I wouldn't be surprised, however, if he would vote in favor of civil unions or equivalent. I've often wondered if civil unions might not be a stopgap SCOTUS might consider to delay the inevitable even longer, which is what they seem to want to do.

  • 72. Michael Grabow  |  June 10, 2014 at 12:08 pm

    I think they would get laughed at for proposing that.

  • 73. ebohlman  |  June 10, 2014 at 2:31 pm

    Civil unions are pretty much off the table since Windsor because they're not recognized Federally; the only way to achieve such recognition would be by an act of Congress (and as the NJ case showed, courts can't grant relief that's only effective if third parties outside the court's control do something) or by a ruling (in a future case that would be Windsor all over again) that CU's had to be federally recognized (but if that were possible, the SCOTUS would have decided that way in Windsor).

  • 74. JayJonson  |  June 10, 2014 at 3:08 pm

    He made it very clear not just that there was no constitutional right to marriage equality, but that there is no constitutional right to equality under the law. Not just marriage equality, but in the prohibition against discrimination, as in the Christian Legal Society case, where he thought it perfectly fine for a student law group to discriminate against gay students. In his Windsor dissent, he indicated that he thought DOMA constitutional. In oral arguments, he indicated that he thought the Obama administration should have just settled the case with Windsor, which he saw as a narrow case about taxes, not the landmark case about marriage equality that it has become. He clearly doesn't have any sympathy for an equal rights argument. He is not as pugnacious as Scalia or Alito, but he strikes me as equally stubborn. I think there is no evidence whatsoever that he believes in equal rights for gay people. Period.

  • 75. Zack12  |  June 10, 2014 at 3:44 pm

    The civil unions ship not only sailed a long time ago, it sprung a leak and sank to the bottom of the ocean.

  • 76. Bruno71  |  June 10, 2014 at 3:54 pm

    I'd love to agree with you, but you never know with SCOTUS. Everyone was past the standing issue once the 9th Circuit granted standing to the intervenors, then SCOTUS resurrected it. They look for off-ramps and by-ways. The reason I think CU's may not be dead with them is it might give them a unique opportunity to again not have to settle the question of marriage equality and the U.S. Constitution. They can take, say, the Virginia case and find that the plaintiffs are entitled to all the same rights as a married couple, but not stipulate the terminology. Just like in Vermont or New Jersey. I'd hate to see it happen, but it would delay things, if that's still what they want.

  • 77. Zack12  |  June 10, 2014 at 4:11 pm

    I think they all realize the next case they get they can't use the off ramp.
    As mentioned before, civil unions aren't acknowledged at the Federal Level and expecting Congress to do anything to change that is a pipe dream.

  • 78. Bruno71  |  June 10, 2014 at 4:13 pm

    They could specify in their ruling this time that CU's/DP's or other equivalents must be recognized by the federal government. They never actually said these were NOT recognizable in the Windsor ruling, they just omitted any mention.

  • 79. BenG1980  |  June 10, 2014 at 4:13 pm

    But then you have the issue that, paraphrasing Chief Justice Warren, separate but equal is inherently unequal.

  • 80. Bruno71  |  June 10, 2014 at 4:17 pm

    Exactly. But we have to remember how the Roberts court operates, and Kennedy as well. Rule as narrowly as possible with almost no exception. So if they rule that same-sex couples deserve the same rights and benefits as straight couples, without specifying the word "marriage," they get to rule narrowly. That also leaves it open for them accepting a later case that involves how CU's/DP's fall short of marriages. But they can basically move the goalposts to a later date, and I wouldn't put it past them to try and do that. As I said before though, I hope this won't be the case. And I by no means think this will certainly happen, it's just a possibility I've been pondering.

  • 81. Zack12  |  June 10, 2014 at 4:18 pm

    Exactly, there is clear evidence that every place civil unions and domestic partnerships have been tried, they have NOT been equal in any way shape or form.

  • 82. Bruno71  |  June 10, 2014 at 4:18 pm

    But not in Virginia. Or Utah. Or Oklahoma.

  • 83. Zack12  |  June 10, 2014 at 4:27 pm

    And it's going to be different in those places?
    There will be lawsuits filed before the court can blink.

  • 84. Bruno71  |  June 10, 2014 at 4:27 pm

    Might not need to be new ones filed (though there obviously would be very quickly). The Nevada lawsuit would take care of that.

  • 85. Zack12  |  June 10, 2014 at 4:30 pm

    IMO, if they want to delay, they won't grant cert if the 4th and 10th rule in our favor.
    By the time some of the other circuits come around to ruling, it might very well be 2016 before they hear it.

  • 86. Bruno71  |  June 10, 2014 at 4:41 pm

    Hope you're right. Or they rule nationwide ME in 2015 or 2016.

  • 87. ebohlman  |  June 10, 2014 at 5:12 pm

    Actually, "everyone" wasn't past the standing issue. All the parties to the case were past it as it applied to their case, but the SCOTUS had unresolved issues left over from a previous case (Arizonans for Official English) and Hollingsworth was an obvious vehicle to resolve them. I very much doubt they'd have granted cert without the standing issue, since the 9th Circuit's decision was written so narrowly that its reasoning couldn't be used anywhere other than California; the standing issue was the only one offering a chance to set precedent.

    The only way I can see them even addressing CUs is a) if the appeal in Sevcik goes against us (highly unlikely) and the SCOTUS grants cert on our appeal (if the appeal goes for us, nobody has standing to appeal it further) or b) the CO Supreme Court decides for us on the state case there (still at the trial court level; I think there's a hearing on Thursday but some people have said it's Monday) and that gets appealed to the SCOTUS.

    I think some people may be referring to the pipe-dream of some of the more hot-headed atheist activists to leave marriage to the churches and make civil unions the law for everyone. That's simply not going to happen (and is in any case based on a refusal to understand both history and law. Note that I'm an atheist myself and think such a push would do nothing but discredit us).

  • 88. Bruno71  |  June 10, 2014 at 7:08 pm

    What I meant by everyone was the media, the 9th Circuit, and just about everyone who was paying attention. Once the 9th took the case, the standing issue was all but forgotten. Except, as you say, by SCOTUS. That's my point here. Just because everyone seems to think CUs/DPs are a thing of the past, doesn't mean they are to SCOTUS. It doesn't mean they're not, either.

    Just out of curiosity, why are you so certain they wouldn't address the concept of CU's/DP's or equivalent in a case out of VA or UT? I'd be surprised if they didn't at least consider the topic in some way, even if it doesn't end up being their solution.

  • 89. ebohlman  |  June 10, 2014 at 10:53 pm

    The 9th circuit spent most of its time and effort in Perry over whether or not the proponents had standing (remember the nearly year-long detour with the certification to the CA Supreme Court?). They eventually concluded that initiative proponents would have Federal standing if they would have had State standing (and the SCOTUS, of course, said "nope"). Standing was a central, not peripheral, issue, in Perry at the Ninth.

    The portions of UT and VA's amendments barring CUs weren't challenged by the plaintiffs, nor are the defendants proposing that they could be a remedy. The issue simply isn't going to be before any court unless it comes from a state with CUs (which are only NV and CO at this point); courts, even the SCOTUS, don't introduce new issues sua sponte (that's why Windsor said nothing directly about state marriage laws and didn't address Section 2 of DOMA; the parties didn't introduce those issues).

  • 90. Bruno71  |  June 11, 2014 at 8:01 am

    Yes standing was an issue at the 9th. But once they moved past it, it ceased to be talked about in the media until the SC granted cert. I think my point is pretty clear here.

    SCOTUS can resolve a case any way they see fit. They can introduce concepts that weren't briefed in oral arguments, or in their ruling. It may not be principled according to many, but I wouldn't put it past them if they're seeking another by-way.

  • 91. Pat  |  June 10, 2014 at 1:22 am

    I've read several commenters mention Posner. As a foreigner, I have no idea who that is and Googling him doesn't quite explain what's so special about him. Could someone explain? Thanks!

  • 92. ebohlman  |  June 10, 2014 at 1:34 am

    He's quite the legal iconoclast and makes more public statements than most judges do. He's usually regarded as conservative but is actually rather hard to pin down politically. I seem to vaguely remember (but could be wrong) that Judge Walker from Perry regarded him as an influence (Walker himself was a bit of an iconoclast).

  • 93. Craig  |  June 10, 2014 at 6:50 am

    Posner is quoted in the penultimate paragraph in the 8th Circuit ruling really Nebraska and he sits on the 7th Circuit. He's interesting in a way most judges aren't and is one to watch either in a good or bad way.

  • 94. grod  |  June 10, 2014 at 3:09 am

    Not different than Arkansas Supreme Court initial decision: denies an emergency stay – matter is still before the trial court – http://posting.arktimes.com/media/pdf/05142014171
    Also recall NOM request in the Oregon case before the Supreme Court [sited by Crabb]: a stay denied

  • 95. StraightDave  |  June 10, 2014 at 5:57 am

    Maybe it's just my ignorance, but I find the wording on the 7th Order a bit odd: "FROM THE RELIEF GRANTED BY THE JUNE 6, 2014, OPINION AND ORDER".

    I know it's just quoting the defendants motion, but I didn't think Crabb actually ordered any relief yet. Or maybe that's the whole point of this charade – WI is asking for a stay of any prospective and undefined relief Crabb may order in the future. Just "whatever she's planning to do, don't let her do it". A bit cart before the horse, eh? Am I missing something?

  • 96. Ragavendran  |  June 10, 2014 at 8:44 am

    No that's not what they're asking (and they can't). They insist that even through she hasn't explicitly issued an injunction yet, her opinion and order already has that effect and so, that portion of it must be stayed.

  • 97. RobW303  |  June 10, 2014 at 10:48 am

    Although 42 counties (at last count) are now issuing licenses, nearly as many still are not, so her opinion cannot yet be considered effective except insofar as clerks have individually taken it upon themselves to act—something the judge herself made clear in her refusal of the premature stay request.

  • 98. Bruno71  |  June 10, 2014 at 11:21 am

    It's actually 46 issuing, 26 not: http://www.bilerico.com/2014/06/most_wi_counties_

  • 99. Ragavendran  |  June 9, 2014 at 10:22 pm

    Here is the proposed injunction by Plaintiffs:
    http://www.scribd.com/doc/228897022/3-14-cv-00064
    (Thanks to Kathleen for the link on her Facebook page.)

  • 100. ebohlman  |  June 9, 2014 at 10:56 pm

    They forgot to explicitly enjoin the statewide defendants from enforcing the statute criminalizing out-of-state travel to marry in contravention of WI law. The remaining provisions could probably be read as effectively doing that, but why take chances? This is definitely a case where all the i's need to be dotted and all the t's crossed, especially given what happened in Arkansas.

  • 101. Ragavendran  |  June 9, 2014 at 10:59 pm

    Well, the constitutionality of that statute was not challenged, was it? I doubt that Judge Crabb would find that she has the authority to do so even if requested. It has nothing specific to do with gay marriage. It deals with any marriage that violates WI law.

  • 102. ebohlman  |  June 10, 2014 at 12:07 am

    Plaintiffs' First Amended Complaint <a href="http://(https://www.aclu.org/lgbt-rights/wolf-v-walker-plaintiffs-first-amended-complaint)” target=”_blank”>(https://www.aclu.org/lgbt-rights/wolf-v-walker-plaintiffs-first-amended-complaint) included

    (C) permanently enjoining Defendants Van Hollen, Chisholm, and King from enforcing Wisconsin’s marriage evasion statute against same-sex couples who marry outside of Wisconsin;

    It's possible that that aspect might have been dismissed later (I haven't read every single subsequent document) but it doesn't look so. It was specifically an as-applied, rather than facial, challenge.

  • 103. JayJonson  |  June 10, 2014 at 7:02 am

    It may not have been specifically challenged. But iirc it figured in the litigation. Didn't the state agree that the plaintiffs who had been married out of state would not be prosecuted?

  • 104. StraightDave  |  June 10, 2014 at 6:07 am

    If SS couples can now get married in WI, then marrying out of state would no longer violate WI law. Seems moot, at least for SS couples. The other restrictions on age, cousins, etc would still remain and were unchallenged. That's somebody else's fight.

  • 105. Andrew  |  June 10, 2014 at 7:33 am

    The proposed injunction does enjoin the state from enforcing that out-of-state travel statute because the wording of that out-of-state travel statute (if I recall correctly) only refers to traveling out-of-state in order to accomplish what can't legally be accomplished in the state. As far as asking why take chances and not address this statute, I don't think it is taking a chance to leave it as it is since the outcome of the language as proposed is clear. Besides it will still be law in Wisconsin to go out of state to accomplish what can't be done in state such as incest and polygamy.

  • 106. KarlS  |  June 10, 2014 at 10:56 am

    I can't even begin to believe a law making it illegal to do something legal in some other place could come close to constitutional muster…It sounds way beyond nuts.

  • 107. StraightDave  |  June 10, 2014 at 11:14 am

    You mean like the Arkansas law saying atheists can't hold public office? There's lots of stupid BS laws running around out there. They do it just to scare people away, knowing full well they will lose if they ever get called on it. But meanwhile….

  • 108. Pat  |  June 11, 2014 at 2:50 am

    Wow, they submitted their proposed injunction one week before the June 16 deadline? Cool, so that means that since defendants have to reply 7 days later, they have until June 16 now, right ?

  • 109. StraightDave  |  June 11, 2014 at 6:06 am

    That's how I read it, too. But I fear all that does is hasten the day when a stay-able injunction appears on paper.
    I forget, Did Crabb flat out reject the premature WI stay motion as meaningless, or just hold on to it until the injunction caught up to it?

  • 110. F_Young  |  June 10, 2014 at 5:09 am

    U.S. law firms flock to gay-marriage proponents, shun other side
    http://www.reuters.com/article/2014/06/10/us-usa-

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

    Makes sense. Good counsel is counsel that understands the law and the constitution.

  • 112. Steve  |  June 10, 2014 at 8:44 am

    And being known to make such ludicrous arguments isn't good advertising. While it's true that lawyers will say anything in the favor of the client even when they know it's BS, it also makes them look incompetent if it's too obviously stupid.

  • 113. davep  |  June 10, 2014 at 9:04 am

    Indeed. Who wants to be remembered as the next Leon Brazile, the judge in the first Loving trial who said things like:

    "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

    Yikes, what a miserable legacy.

  • 114. Zack12  |  June 10, 2014 at 9:33 am

    That whole statement also should put to bed the flat out lie by the bigots of today that objections to interracial marriage were only based on racism and not religious beliefs.

  • 115. StraightDave  |  June 10, 2014 at 9:55 am

    IMO, it was still flat-out racism, just using religion as a magic cloak to shield it from challenge. No different than today. Plus, adding in the usual dose of monumental ignorance.

    The first 3 words of that quote should have been enough for SCOTUS to stop right there and overturn the whole thing without reading another word.

  • 116. SoCal_Dave  |  June 10, 2014 at 10:29 am

    Either way, whether the racism was hiding behind religion, or religion fueled the racism, it seems clear from this that "deeply held beliefs" should never be considered sufficient reason for bigotry.

  • 117. NTinGA  |  June 10, 2014 at 8:58 am

    The ACLU just filed another lawsuit challenging Alabama's ban. http://www.montgomeryadvertiser.com/story/news/lo

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