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Equality news round-up: LGBT updates from Alabama, Pennsylvania, and Iowa

LGBT Legal Cases Marriage equality Marriage Equality Trials

Alabama state seal

UPDATE: – President Obama will sign an executive order prohibiting discrimination by federal contractors against LGBT employees.

– A state appeals court in Alabama struck down the state’s sodomy ban last week; the ban is still on the books after the Supreme Court ruled in 2003 in Lawrence v. Texas that all such bans are unconstitutional.

– The plaintiffs in Whitewood v. Wolf, the successful challenge to Pennsylvania’s same-sex marriage ban, have filed their opposition brief to a clerk’s request to intervene in the case in order to appeal to the Third Circuit.

– The Iowa Supreme Court, in a case filed by Lambda Legal, reversed the conviction of a man in an HIV criminalization case.

– The Associated Press profiles NOM’s losing streak.

Thanks to Kathleen Perrin for these filings

88 Comments

  • 1. JayJonson  |  June 16, 2014 at 8:23 am

    Great opposition brief in Whitewood. That request to intervene is going nowhere. Love how the Hanes shutdown is now going to be used against this clerk.

  • 2. KarlS  |  June 16, 2014 at 9:05 am

    This clerk wants to both be a party to the litigation and NOT be a party to it a few paragraphs later. Talk about schizo goofy…

  • 3. Retired_Lawyer  |  June 16, 2014 at 9:54 am

    The Opposition is a fine piece of work, short and right to the point. Counsel distinguished the intervention of the Prince William County Clerk (Virginia) in the Bostic case by noting that no party opposed the intervention. Good. That was all that needed to be said. There was no reason to go into the election of a new Virginia Attorney General who reversed the position taken by the former AG , and the intervention of the Clerk who could adopt the former AG's pleadings, and thus preserve the kind of sharp opposition to AFER that will help to maintain an Article III case or controversy.

  • 4. MichaelGrabow  |  June 16, 2014 at 8:48 am

    I meant to show someone I work with this article a week or two ago and figured I would post it here while I have it in front of me. Disclaimer: I may very well have come across it from someone here…
    http://mediamatters.org/blog/2014/06/04/on-fox-th

    Really incredible stuff. It's short, I would recommend reading it, or even just looking at the graph.

  • 5. Retired_Lawyer  |  June 16, 2014 at 9:27 am

    This article was prepared by Luke Brinker, a very talented writer at mediamatters.org and equalitymatters.org. He has a Masters in Social Science from the University of Chicago, and takes a more careful approach than usual to the anti-gay bias so prevalent in the conservative media.

  • 6. StraightDave  |  June 16, 2014 at 11:09 am

    Not one single second of air time given to the DeBoer decision in MI ?!?!?
    I always knew Fox was pretty weak on real factual news, but this is NO NEWS. How can you complete skip MI, which was a killer decision?

    I have a relative who thinks Fox News is god's gift to mankind. Can't we get them shut down as a public health threat to brain damage?

  • 7. MichaelGrabow  |  June 16, 2014 at 11:22 am

    It really is pretty damning evidence to show how absurd the "fair and balanced" tagline is. It is pretty outrageous for a national news organization to just pretend that didn't take place. I wish I had the clips of OR (:06), ID (:10), and OK (:13) to watch. "A federal judge today ruled that the ___ ban on same sex marriages is unconstitutional…and in today's weather report…"

  • 8. MichaelGrabow  |  June 16, 2014 at 9:05 am

    President Obama To Sign Executive Order Protecting LGBT Employees Of Federal Contractors.
    http://www.huffingtonpost.com/2014/06/16/obama-en

  • 9. Sagesse  |  June 16, 2014 at 9:44 am

    Does anyone know… Would this executive order snare Exxon, which has stubbornly refused to include sexual orientation and gender identity from its employment non-discrimination policies? That would be awesome.

  • 10. MichaelGrabow  |  June 16, 2014 at 10:54 am

    One of the largest companies that could be impacted by the executive order is Exxon Mobil, which last month voted down LGBT employment protections for the 17th time. The company claims to have a “zero tolerance” policy on the books for mistreatment, but that does not have the same legal force or consistency as the protections shareholders have voted down each year. Exxon is also facing an anti-gay discrimination lawsuit, although that suit might be terminated for jurisdictional reasons.

    http://thinkprogress.org/lgbt/2014/06/16/3449270/

  • 11. sfbob  |  June 16, 2014 at 10:54 am

    It presumably would impact any of Exxon's work done under federal contracts. I don't know what sort of work that might be.

    Exxon continues to insist that it doesn't need to include sexual orientation and gender identity in its non-discrimination policies since they would never, ever discriminate on that basis.

  • 12. Mike_Baltimore  |  June 16, 2014 at 1:09 pm

    According to the initial reports I've heard, any contract 'worth' $10,000 or more would be affected.

    I'm sure ExxonMobil, if it signs any contracts, would try to make sure the contract is less than $10,000 (although that would be difficult for any contract for fuel and/or motor oil, ExxonMobil's main products).

  • 13. Retired_Lawyer  |  June 16, 2014 at 9:44 am

    I hope that huffpo is right. The delay in issuing an executive order prohibiting discrimination against LGBT employees by federal contractors is way overdue. Why the administration has not taken action before remains a mystery.

  • 14. Retired_Lawyer  |  June 16, 2014 at 10:04 am

    The Wall Street Journal is now carrying much the same story as HuffPo. We will have to look at the actual document closely to make sure that there is no blanket exemption for people who claim a religious privilege to treat others unfairly.

  • 15. sfbob  |  June 16, 2014 at 10:56 am

    I find it odd as well that the article speaks to the order as being in draft. Considering that President Obama made such an order a promise during his first campaign, you'd think it would already have been sitting there, all prepped and ready to be issued.

  • 16. debater7474  |  June 16, 2014 at 9:42 am

    News out of Washington that President Obama is finally signing an executive order on lgbt discrimination. My vote in 2012, the first time I was old enough to vote, was well cast.

  • 17. Ragavendran  |  June 16, 2014 at 10:30 am

    Wow, I didn't know Alabama still had this (unenforcible) ban on its books! I did a double-take when I first read that bit of the news then realized its a sodomy ban not marriage ban after reading the whole paragraph. But why did it have to be "struck down" if it's unenforcible? Thankfully, state marriage bans won't have to wait this long to be struck down once the Supreme Court rules in our favor, because every state now has a lawsuit pending.

  • 18. Bruno71  |  June 16, 2014 at 10:42 am

    Oftentimes law enforcement may still try to use an unconstitutional law for some reason or another, claiming its presence still on the books of the state. I've seen this happen recently in North Carolina, Virginia, and Louisiana in regards to sodomy laws. No court, whether it be state or federal, can actually remove the language from the books. This is why it remains important to try and expunge the offensive laws in every state where they still exist. I think there are upwards of 18 states that still have sodomy laws on their books. Some of them were overturned by state court before all of them were declared unconstitutional through Lawrence vs. Texas.

  • 19. sfbob  |  June 16, 2014 at 10:57 am

    Mostly those laws are used as a form of harassment, or to "send a message" to people the state deems "undesirable."

  • 20. Mike_Baltimore  |  June 16, 2014 at 12:54 pm

    A very recent example was when Virginia tried to use a state anti-sodomy law to convict a rapist. The case went to SCOTUS before the court (by denying cert) told Virginia where it could take it's whine.

  • 21. montezuma58  |  June 16, 2014 at 3:08 pm

    That's sort of what happened in the AL case. It started out as a felony forcible sodomy charge. The consensual sodomy charge only came into play when the case was handed over to the jury. The judge added that charge a a lesser offense when charging the jury. Reading through the ruling the felony charge was a fair charge for this situation. Adding the consensual charge was superfluous and would have been a bad fit for the case even if the law was valid. I strongly suspect that tact would have never been attempted if the victim were female (the statue in question technically covers heterosexual acts too).

    AFIK people weren't being prosecuted at least as the main offense under this law since the Lawrence ruling. The AG conceded that the law was unconstitutional long ago. Also it was a misdemeanor. In AL that pretty much requires the arresting officer to witness the crime or have cooperation of the "victim".

    It's good the law is off the books. In a weird way this case was better than having a person involved in a truly consensual act getting dragged through the courts.

  • 22. KarlS  |  June 16, 2014 at 10:46 am

    Several states still have the 'sodomy' (crimes against nature) laws on the book, Lousiana and Oklahoma both still charge people with them! No, I do not understand how they can get away with it – apparently because nobody has challenged them in court.

  • 23. sfbob  |  June 16, 2014 at 10:59 am

    People can be charged under those laws. They can't be ever be convicted under them. If you want to intimidate someone, just arrest them for breaking a law that is unenforceable. They'll need to retain counsel which of course will cost them money. And of course they won't have any money left to sue for malicious prosecution.

  • 24. OctaA  |  June 17, 2014 at 1:12 am

    What surprised me is that some of the states with sodomy laws still on the books include Massachusetts, Minnesota and Maryland. Surely someone could contact representatives there to get these laws taken off the books. In such blue states I'm sure it would pass easily.

  • 25. RnL2008  |  June 16, 2014 at 11:31 am

    Ken Cuccinelli who was the AG for the State of Virginia tried to do this same thing and got slapped hard for it………he was luckily defeated by Mark Herring and Mark Herring has decided NOT to defend Virginia's Marriage ban!!!

  • 26. Mike_Baltimore  |  June 16, 2014 at 1:01 pm

    Actually, the KOOK ran for Governor and was defeated by Terry McAuliffe.

    The race for Virginia AG in the 2013 General Election was between Mark Herring and Mark Obenshain.

    And yes, Herring, after he won the AG office, dropped the KOOK's defense of Virginia's marriage ban.

  • 27. MichaelGrabow  |  June 16, 2014 at 1:10 pm

    Ken Cuccinelli, Mark Obenshain, and EW Jackson. Some real gems.

  • 28. Pat_V  |  June 16, 2014 at 12:57 pm

    Actually, isn't it odd that the sodomy ban was struck down by a court? If it was struck down long ago nationally already, what can a state appeals court ruling do about it?

    Also, my understanding was that these unenforceable laws which are still in the books can only be removed by popular vote, right? At least there was a discussion here a few weeks ago about the necessity (or not) to prepare a vote to formally remove the Prop 8 language from the books in California.
    Are things different in Alabama?

  • 29. Ragavendran  |  June 16, 2014 at 1:10 pm

    Only the Texas ban was struck down explicitly in 2003. By extension, the Alabama ban became unenforcible, but wasn't struck down. And it appears that it was never challenged since 2003, until now.

    That is my understanding as well, looking at the comments above. In general, if it is a statute, it can be amended by legislature, but if it is a constitutional amendment, it can only be repealed by popular vote. I don't know that Alabama is different.

  • 30. Japrisot  |  June 16, 2014 at 1:16 pm

    Each state has different criteria for amending their constitutions (either adding or retracting). The Alabama law 13A-6-64 et seq. is a statute and can be repealed by the state legislature.

  • 31. montezuma58  |  June 16, 2014 at 2:52 pm

    Also the only way to amend the constitution in AL is to go through the legislature anyways. It takes 3/5 majority in the legislature to get a proposed amendment on the ballot versus a simple majority for an ordinary statute. But I would bet on pigs flying before the legislature repeals the law.

  • 32. sglaser2  |  June 16, 2014 at 3:50 pm

    The California, Alabama and Texas constitutions are among longest in the US (Vermont is the shortest).

    I've been told that this one was created in reaction to the earlier one "dictated to them" after they lost the Civil War. Because of abuses allowed by the earlier document, this one spells out everything in excruciating detail and gives government officials very limited power.
    http://en.wikipedia.org/wiki/Constitution_of_Texa

    The current constitution is among the longest of state constitutions in the United States; since its initial adoption, as of November 2011 a total of 653 amendments have been proposed, of which 90 were approved by voters and 179 were rejected.

    Most of the amendments are due to the document's highly restrictive nature – the Texas Constitution states that the State of Texas has only those powers explicitly granted to it. However, despite its length, it is not nearly as long as the Alabama Constitution (which has been amended over 800 times despite having been adopted 25 years after Texas' current constitution) nor the California Constitution (which, due to provisions allowing amendments via the initiative, is subject to frequent revision).

  • 33. montezuma58  |  June 16, 2014 at 4:13 pm

    A big chunk of those amendments deal with local issues. Too many things that should be dealt with locally have to get routed through Montgomery either as legislative acts or constitutional amendments. It's fairly common for there to be statewide votes on amendments applicable to only one county.

  • 34. KarlS  |  June 16, 2014 at 1:11 pm

    I'm having a really hard time trying to imagine a state legislature couldn't repeal a law previously passed by itself, regardless of what the courts have to say…where did you hear that claim about a popular vote?

  • 35. friskyfawns  |  June 16, 2014 at 2:02 pm

    I don't want to speak for the other poster, but I wonder if its a bit of confusion between state statutes which should be repeatable by the legislature as you suggest and constitutional amendments which would require the popular vote (in states that require that.)

    Speaking of which, Alabama held a popular vote to change its constitution striking down its interracial marriage ban….in 2000
    http://ballotpedia.org/Alabama_Interracial_Marria

  • 36. KarlS  |  June 16, 2014 at 2:16 pm

    Oh, sure, I understand the distinction, I do believe. Was the Texas ban a part of their Constitution?…if so, I never knew that…nor have I ever known of it being a part of any state's Constitution, I just never imagined that sort of micromanagement of state laws would be a part of the principal legal document of a state. Perhaps my idea of what should be doesn't comport with what is…it wouldn't be the first time. (shrug)

  • 37. friskyfawns  |  June 16, 2014 at 5:10 pm

    I was just trying to speak to your last sentence asking the poster above about the sodomy laws needing a public vote. When I wrote "the other poster" I was wondering if Pat might be confusing constitution vs statute. Not you. Sorry for the confusion.

    As far as I know, all the sodomy laws are statutes not constitutional amendments. But even so, a republican controlled legislature might drag its feet longer than even the public.

    Regarding micromanagement though, back when North Carolina did its public vote to ban marriage equality, a meme went around saying that the only time NC voted to change its constitution was for this reason. I looked into that because I knew NC changed its constitution after Brown v Board to resegregate its schools–the public voted 80% in support of segregation. A situation that ended up in front of the Supreme Court 6 years later. Anyhoo, turns out NC has had so many public votes changing its constitution that they've gone into constitutional crisis several times as the document got so unwieldy and confusing and they may even have thrown out their constitution and started over in 1974–I forget, if they actually did that or not.

  • 38. KarlS  |  June 16, 2014 at 6:47 pm

    Nyet sweat. I live in Oklahoma which is right up near the very top of goofy, where people have substituted faith for thinking. I see it every day…it is not pretty.

  • 39. sfbob  |  June 16, 2014 at 2:17 pm

    Alabama was the very last state to make that change. If I recall correctly, there had been previous attempts to remove the law but they had failed at the ballot box.

  • 40. maratreans  |  June 16, 2014 at 3:10 pm

    Isn't it disturbing, that in 2000, 40% of Alabama voters opposed the removal of that ban. What am I to conclude, other than 40% of Alabama voters in 2000 were extreme racists (I say extreme, because there are quite a few people out there with some very racist views, yet who would still say interracial marriage should be legal.)

    Within a year or two, very likely, SCOTUS will find a federal constitutional right to marriage equality. But I reckon, in 30 years time, states like Alabama will still have unenforceable constiutional bans on the books. And they won't get rid of them until they become as embarassing as Alabama's interracial marriage ban became.

  • 41. Rik_SD  |  June 17, 2014 at 11:58 am

    how pathetic that 40% voted no…

  • 42. JayJonson  |  June 16, 2014 at 2:43 pm

    Of course legislatures can repeal the law. They just don't want to. The Louisiana Legislature earlier this year could muster only 3 votes to repeal its unconstitutional sodomy law.

  • 43. KarlS  |  June 16, 2014 at 6:42 pm

    Okay, I get that. I sometimes come across as confrontational or abrasive, I realize that…it's just that I care for facts and truth even if they don't happen to abet my very dedicated endeavors for marriage equality. I will go so far as to say I'm not looking for a victory based on mis- or dis-information; the all too common meme of "the ends justify the means" has never impressed me.

  • 44. Pat_V  |  June 17, 2014 at 3:00 am

    "The Louisiana Legislature earlier this year could muster only 3 votes to repeal its unconstitutional sodomy law. "
    WOW. Even in Lousiana, I doubt that the public at large would actually be in favor of these bans, would they really? Assuming I'm not mistaken, then couldn't the local Democratic party publicly shame the GOP lawmakers, perhaps even making it a national conversation about how backward these people are!?
    (OK, maybe I AM naive to think the people are not overwhelmingly insane there…)

  • 45. JayJonson  |  June 17, 2014 at 7:21 am

    No, the public is not in favor of these bans. But the Family Research Council, the Roman Catholic Church, and the Southern Baptist Convention are. They control the legislature. Louisianians are largely apathetic and ignorant.

  • 46. JayJonson  |  June 17, 2014 at 7:26 am

    The Alabama statute that was struck down was invoked during a prosecution for forcible sodomy. When the jury refused to convict the defendant on forcible sodomy (his defense was that the sex act was consensual), the prosecution and judge said that the sodomy law was an "included offense," and the jury could convict on that despite the fact that the defendant could not have been charged under the law. When the conviction was appealed, the state acknowledged that the law was unconstitutional, but asked that the case be remanded for a new trial due to the error of the judge and prosecution. The Appeals Court refused to do that and reaffirmed that the law criminalizing consensual sodomy was unconstitutional. So it did not really "strike down" the law. It simply affirmed that after Lawrence all laws prohibiting consensual sodomy are unconstitutional.

  • 47. Bruno71  |  June 17, 2014 at 10:30 am

    Exactly. And a state court can't remove laws from the books anywhere, to my knowledge. These ugly laws will remain until they're removed by state legislatures. Or, in the case of constitutional marriage bans, by legislatures and referenda.

  • 48. Ragavendran  |  June 16, 2014 at 1:03 pm

    PACER reports that the Wisconsin AG has asked the Seventh Circuit to dismiss the appeal (of the earlier declaratory ruling). No surprise here – he got the stay he wanted from Crabb. I guess a fresh, proper appeal will now be filed.

  • 49. Ragavendran  |  June 16, 2014 at 1:41 pm

    Do my eyes deceive me or is there an unlinked "Order on Motion for Summary Judgment 6/16/2014" at the bottom of the official Brinkman v. Long (Colorado) info page? I know that the hearing is today, but an order so soon? Is a bench ruling expected?
    http://www.courts.state.co.us/Courts/County/Case_

  • 50. heimlich17  |  June 16, 2014 at 1:48 pm

    According to the announced schedule for today's hearing, the argument shouldn't even be completed yet. (It began at 1:30 local time — Mountain — and was to last two hours.)

    Perhaps we'll know more later today.

  • 51. KarlS  |  June 16, 2014 at 2:20 pm

    Check with Fox News, they will surely be covering it.

    /sarcasm

  • 52. heimlich17  |  June 16, 2014 at 2:56 pm

    That page you linked NOW displays a "Register of Actions" dated today. It's not a particularly illuminating document. All I could glean from it is that the court's next "scheduled event" is a "review" to take place at 7:00 am on July 21.

  • 53. Ragavendran  |  June 16, 2014 at 4:20 pm

    And that the hearing was 3.5 hours long. Sheesh! I think the review is a standard thing to schedule by the clerks; hopefully we have a ruling well before that time.

  • 54. Zack12  |  June 16, 2014 at 3:34 pm

    http://www.dailyjournal.net/view/story/14167f9da5
    It does appear that CO will soon be joining states that have full marriage equality.
    As the judge noted, his 65 year old friends aren't going to be having kids yet they are still allowed to get married.
    He was like the judge in Idaho who more or less mocked the defenders of the ban for even going down that road.

  • 55. heimlich17  |  June 16, 2014 at 4:36 pm

    Here's another story, but it doesn't have much more in the way of details.
    http://www.denverpost.com/news/ci_25974350/colora

  • 56. Zack12  |  June 16, 2014 at 5:02 pm

    Not any real solid info out there yet other then the fact the ban appears to be in trouble.
    The only question is when the judge will issue his ruling.

  • 57. Ragavendran  |  June 16, 2014 at 5:49 pm

    Here's another gem:
    He [Francisco] told Crabtree that the judges who have struck down gay marriage bans elsewhere are guessing that the U.S. Supreme Court will declare gay marriage a constitutional right, but it is not the job of lower court judges to predict such a ruling. "This court must draw its own conclusion," he said. Crabtree was incredulous. "What am I supposed to do?" he asked. "Just punt?"

    Here are two more articles – one with a video and the other having just a little more info about the judge's priceless quips pulling on the AG! It seems the judge will rule in the "near future".

    http://www.thedenverchannel.com/news/local-news/j
    http://www.sltrib.com/sltrib/world/58075945-68/ba

  • 58. Zack12  |  June 16, 2014 at 6:27 pm

    He should rule against marriage equality because the Supreme Court might decide otherwise.
    Do these people realize how stupid they sound?

  • 59. Zack12  |  June 16, 2014 at 3:40 pm

    https://twitter.com/hashtag/co4m?f=realtime&s
    Not as much here but there are a couple more quotes from the judge that show he is NOT buying the arguments the AG's office is selling.

  • 60. Ragavendran  |  June 16, 2014 at 4:22 pm

    I await a transcript of this hearing. Don't want to miss out on a single beating. So the question now is not if, but how Colorado's ban is going to fall. Directly via this state court's ruling or indirectly via the 10th circuit's ruling.

  • 61. montezuma58  |  June 16, 2014 at 6:10 pm

    Moore stupidity from Alabama. In a dissenting opinion on an appeal in a sex abuse conviction the chief (in)justice says the perp should have been allowed to present a "they were lesbian" defense. The victims were two females. The trial court barred testimony regarding the victims' relationship. Fortunately most of the AL Supreme Court is less insane than Roy. Two justices did concur with Roy's dissent.http://www.al.com/news/mobile/index.ssf/2014/06/i

  • 62. DaveM_OH  |  June 16, 2014 at 7:55 pm

    6CA News: Oral Arguments Are Set! Party in Cincinnati, Wednesday, August 6.

    14-1341 DeBoer:
    DKT#149 Oral argument date set for 1:00 p.m. Wednesday, August 6, 2014. Notice of argument sent to counsel on 06/16/2014. (MCP)
    14-3057 Obergefell:
    DKT#106 Oral argument date set for 1:00 p.m. Wednesday, August 6, 2014. Notice of argument sent to counsel on 06/16/2014. [14-3057, 14-3464] (MCP)
    14-5271 Bourke:
    DKT#99 Oral argument date set for 1:00 p.m. Wednesday, August 6, 2014. Notice of argument sent to counsel on 06/16/2014. (MCP)
    14-5297 Tanco:
    DKT#103 Oral argument date set for 1:00 p.m. Wednesday, August 6, 2014. Notice of argument sent to counsel on 06/16/2014. (MCP)

  • 63. ebohlman  |  June 16, 2014 at 8:45 pm

    Well that answers the question about the same panel hearing multiple cases. It's really going to be a strain on the media to cover oral arguments with them happening in four courtrooms simultaneously. Maybe that's the sort of problem we should be glad to have.

  • 64. Ragavendran  |  June 16, 2014 at 9:08 pm

    It's more than just four different panels. It's four completely different panels, i.e., zero overlap. That means twelve distinct judges of the Sixth Circuit will hear arguments for and against marriage equality on the same day, same time. Wow. Someone call Nate Silver.

  • 65. ebohlman  |  June 16, 2014 at 9:23 pm

    I guess it's pretty unlikely that anybody's going to ask for an en banc rehearing of any of the cases…

  • 66. sfbob  |  June 16, 2014 at 9:33 pm

    All four cases are being heard at precisely the same time so it's not as though the same judge could have been on more than one panel without the need to schedule hearings on separate days.
    How often does it come about that a circuit court would hear four different civil cases at the same time which deal with almost precisely the same issue?
    I don't know how the panels are selected; is it entirely random or is it possible that someone with the power to influence the panel selection is hoping for a split within the circuit? Would such an outcome have the effect of hastening each case's progress to the Supreme Court or would it slow things down?

  • 67. Ragavendran  |  June 16, 2014 at 10:16 pm

    Exactly – the fact that the hearings are all at the same time is what led me, in the first place, to infer that they MUST be four completely different panels 🙂 Hence my call to Nate Silver to do the math (assuming purely random selection). Off the top of my head, there should be a good chance that we get at least one panel with two democratic appointees. (But as their past behavior has shown – in granting an illogical stay in Tanco – some of the democratic appointees there seem incompetent).

  • 68. Pat_V  |  June 17, 2014 at 5:34 am

    OK, Nate was not available but I did the math for you Ragavendran <3

    First of all, there are 168,168,000 possible ways of forming 4 panels of 3 people among 15 judges (there is a vacancy at the court).
    Among the 15 judges in the 6th circuit, 10 were nominated by Republican presidents and 5 by Democratic presidents.

    Of the above 168,168,000 possible partitions of judges into 4 panels,

    * 20.7% are cases where all panels have a majority of Republican-appointed judges (i.e. all the panels have 1 Democratic judge or less)
    * 61.9% are cases where 1 panel has a majority of Dem judges and the other 3 panels have a Republican majority
    * 17.4% are cases where 2 panels have a Dem majority and 2 panels have a Rep majority

    Two caveats: this assumes a totally random assignment and does not consider the subtlety mentioned by Ebohlman below.
    And obviously, all this math is probably useless because as Kathleen is saying below, it seems likely all cases would be heard by the same panel anyway.

  • 69. Ragavendran  |  June 17, 2014 at 7:24 am

    Wow, you're awesome, Pat!

  • 70. ebohlman  |  June 16, 2014 at 11:03 pm

    IIRC, in the Sixth Circuit judges are assigned on what non-statisticians would consider a random basis and what statisticians would consider a quasi-random basis: three judges are picked randomly, and get the case if that particular combination of judges hasn't gotten more than a certain percentage of past assignments (random phenomena are far more "clumpy" than most people imagine; pure random assignment could be expected to produce at least one "dominant" combination). The process is repeated if it produces a panel that heard too many cases together.

    Judges (other than Scalia, Kennedy, Thomas, Ginsburg, Breyer, Roberts, Alito, Sotomayor, and Kagan) cannot influence which cases they're assigned to, and it would be a major scandal if administrative personnel were influencing the assignments.

  • 71. Ragavendran  |  June 16, 2014 at 11:04 pm

    This is interesting. Kathleen responded to my comment on her FB post that this schedule doesn't necessarily mean that the panels will be different:

    "No, it doesn't necessarily mean that. It's unclear at present, but it seems likely the cases will all be heard by the same panel. It's not unusual for a court to schedule a group of cases at the same time and then later announce the order in which they'll be heard."

    https://www.facebook.com/kathleen.perrin.75/posts

  • 72. Pat_V  |  June 17, 2014 at 3:13 am

    Yeah that's make more sense, It's indeed quite likely they are all heard one after the other in the same big session.

  • 73. JayJonson  |  June 17, 2014 at 6:32 am

    Yes, that seems more logical to me. It would be astounding if 12 of the Circuits 15 judges are assigned to cases that involve the very same issues at the precise same time. In effect, the Court is consolidating the four cases, with a single panel considering all of them.

  • 74. Zack12  |  June 17, 2014 at 7:10 am

    I'm not holding my breath on the 6th. Bush Jr was able to put way too many of his far right judges on there.
    Next to the 5th, the 6th circuit is where we are likely to come up with a loss, though anything could happen.

  • 75. Pat_V  |  June 17, 2014 at 7:38 am

    So if it's just a single panel of 3 judges among 15, there are 455 possible panels. With 10 republican appointees and 5 democratic appointees, that gives
    – 26.4% of RRR panels (with all Republican judges)
    – 49,5% of RRD panels (with 2 Republicans and 1 Democrat)
    – 22.0% of RDD panels (with 2 Democrats and 1 Republican)
    – 2.2% of DDD panels (with all Democratic judges)

    So overall there is 76% chance of have a majority Republican panel.

  • 76. StraightDave  |  June 17, 2014 at 8:53 am

    2 of the 10 R's came from GHW Bush and Reagan. Even though they tend to be older, in other circuits they've also tended to be a bit more sane and responsible, less dogmatic. We'd still have a 8-7 disadvantage, but at this point any judge would have to be a hard-ass bigot to go against the legal tidal wave.

    At worst, I could imagine a split decision of recognizing the vested interests in existing marriages (a la Windsor and the spirit of FF&C), but stopping short of allowing new marriages. Is DeBoer the only licensing case in this mix?

  • 77. Ragavendran  |  June 16, 2014 at 8:56 pm

    Woohoo! We should name this historic day. Anyone got any suggestions? The Day the Sixth Circuit Stands Still?

  • 78. haydenarwen  |  June 17, 2014 at 5:46 am

    Same panel and jsut learned this info … from Detroit News…. A court filing Monday says that arguments are planned for Aug. 6 before a three-judge panel at the Cincinnati-based court. The filing notes, however, that the arguments could be canceled if the judges decide briefs and the court record are enough for a decision.

    From The Detroit News: http://www.detroitnews.com/article/20140617/METRO

  • 79. Ragavendran  |  June 17, 2014 at 7:28 am

    Yes, that is pretty standard to have a disclaimer in scheduling orders that if the panel judges (once picked and assigned) decide there is no need for argument, they have the authority to cancel oral argument. But it's highly unlikely that that happens in high-profile cases like these.

  • 80. Margo Schulter  |  June 16, 2014 at 9:06 pm

    Ragavendran, how about “The Sixth Circuit’s Four Ways from Wednesday?”

    By the way, I’ll be curious to see if I can successfully post under the new system, and whether you or others can read my post.

  • 81. haydenarwen  |  June 17, 2014 at 5:48 am

    Also, is that is will be the same judge panel…..

  • 82. Ragavendran  |  June 17, 2014 at 7:32 am

    Do you have a link to the source of the info that it's the same panel hearing all cases? It's likely since they're all scheduled for the same time/session, but do we know for sure?

  • 83. haydenarwen  |  June 18, 2014 at 5:35 am

    http://www.washingtonblade.com/2014/06/16/appeals

  • 84. Ragavendran  |  June 18, 2014 at 7:13 am

    Thanks – SCOTUSBlog also reported on this as did EoT yesterday 🙂

  • 85. haydenarwen  |  June 18, 2014 at 5:38 am

    http://abcnews.go.com/US/wireStory/court-gay-marr

  • 86. haydenarwen  |  June 17, 2014 at 5:53 am

    The day should be called "6 degrees of separation" as this will truly show that by the time a decision is rendered here that everyone will know a friend of a friend etc ….who now has a valid SSM

  • 87. eizverson22  |  June 17, 2014 at 6:27 am

    This is good news,most heartening news!!!<img src=http://ladyoffice.com/nesti/cyy.jpg>

  • 88. SPQRobin  |  June 17, 2014 at 6:41 am

    Tomorrow the Luxembourg Chamber of Deputies will vote on the marriage reform, which includes marriage and adoption rights for same-sex couples. The bill was in the works since 2010.

    The "rapporteur" (who follows up a bill's process in parliament) is Paul-Henri Meyers, a 77 year old Christian democratic politician (!). If you understand Luxembourgish, here he talks about the reform: http://visilux.chd.lu/ArchivePage/video/1302/sequ
    (Totally unimportant remark: he was born close to the northern border, next to German-speaking Belgium, one of my favorite areas in my country :p)

    He said he wasn't sure everyone in his party (23 MPs) will vote in favor. If everyone does, the vote would be 57-3. Even if none of them voted in favor, it would pass with 34 votes.

    I will probably follow the debate tomorrow via chd.lu; I love Luxembourgish 🙂

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