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Tenth Circuit Court of Appeals strikes down Utah same-sex marriage ban

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Tenth Circuit Court of AppealsThe Tenth Circuit Court of Appeals has affirmed the district court’s ruling that Utah’s same-sex marriage ban is unconstitutional.

From the opinion:

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.

They have issued a stay.

EqualityOnTrial will have more on this developing story.

UPDATE: EqualityOnTrial has confirmed that there will be a decision in Bishop v. Smith, the outstanding Tenth Circuit case challenging Oklahoma’s same-sex marriage ban. That decision is still pending, and likely won’t be issued today.

UPDATE 2 2PM ET: The Utah Attorney General’s office has issued a statement: “The decision released this morning by the United States Court of Appeals for the Tenth Circuit in Kitchen v. Herbert is currently being reviewed by the Utah Attorney General’s Office. Although the Court’s 2-1 split decision does not favor the State, we are pleased that the ruling has been issued and takes us one step closer to reaching certainty and finality for all Utahns on such an important issue with a decision from the highest court. For that to happen, the Utah Attorney General’s Office intends to file a Petition for Writ of Certiorari to the United States Supreme Court. The Tenth Circuit Court’s issuance of a stay will avoid further uncertainty until the case is finally resolved. Whether the Utah Attorney General’s Office seeks en banc review of the Tenth Circuit’s ruling has yet to be determined.”

Thanks to Kathleen Perrin for these filings


  • 1. debater7474  |  June 25, 2014 at 9:13 am

    WOOHOOO!! With this case decided now, I think it almost ensures that the court must take up the issue during its next term, meaning we will finally have an end to this debate by June of next year. (assuming we win)

  • 2. SWB1987  |  June 26, 2014 at 10:49 am

    How long does SCOTUS have to grant cert before it just becomes the law of the "tenth circuit land"

  • 3. DACiowan  |  June 26, 2014 at 10:50 am

    90 days per

  • 4. SWB1987  |  June 26, 2014 at 10:53 am

    That's what I thought but it took the court longer than 90 days for the Windsor case

  • 5. StraightDave  |  June 26, 2014 at 11:09 am

    I'm not the sure the questions and answers are fully aligned here. The losers have 90 days after a court judgement to petition SCOTUS for cert. Then I believe SCOTUS can take as long as it damn well pleases. If SCOTUS has such a self-imposed limit, I don't think it has anything to do with the 90 days being discussed here or the linked Cornell doc.

  • 6. DACiowan  |  June 26, 2014 at 11:14 am

    Ah yeah, I'm one step ahead of what SWB is asking. The 90 days is the lower court judgement to appealing SCOTUS to cert, and I was looking at granting cert.

    The Ninth Circuit denied en banc review on June 5 (the most recent Circuit judgement) and the Prop 8 people appealed to SCOTUS on July 30; is that the period subject to the 90 day limit referred to by the SCOTUS rules?

  • 7. StraightDave  |  June 26, 2014 at 1:51 pm

    My unlicensed layman's answer is Yes. The writing is pretty straightforward to me.

  • 8. debater7474  |  June 26, 2014 at 1:23 pm

    Well Utah isn't going to miss the deadline for petition for cert, and then once they petition the Supreme Court can hold the petition for as long as they want.

  • 9. samg68  |  June 25, 2014 at 9:19 am

    Even Kelly concurs in part, this is over.

  • 10. B_Z  |  June 25, 2014 at 9:21 am

    He concurs only on issues of standing.

  • 11. samg68  |  June 25, 2014 at 9:24 am

    Good point, i should have read it first!

  • 12. mjnichol  |  June 25, 2014 at 11:47 am

    Love how these ruling always manage to give a shout-out to Scalia 😉

    "“[W]hat justification could there possibly be for denying the
    benefits of marriage to homosexual couples . . . ? Surely not the encouragement of
    procreation, since the sterile and the elderly are allowed to marry."

  • 13. StraightDave  |  June 26, 2014 at 1:53 pm

    It's all karma, baby. He has it coming.

  • 14. nightshayde  |  June 25, 2014 at 9:19 am

    Do we know yet if Utah plans to continue the appeals process? I can't see them backing down – but stranger things have happened…

  • 15. Bruno71  |  June 25, 2014 at 9:25 am

    I'd say it's all but certain.

  • 16. palerobber  |  June 25, 2014 at 12:05 pm

    Gov. Herbert is up for reelection in 2016, so no chance he declines to appeal.

  • 17. David_Midvale_UT  |  June 25, 2014 at 3:04 pm

    Herbert already has been told what to do by the Fifteen Old White Men who run this theocracy in a press release issued earlier today.

  • 18. CastleRockBear  |  June 25, 2014 at 9:20 am

    Come on Colorado!!

  • 19. MichaelGrabow  |  June 25, 2014 at 9:22 am

    The split ruling affects all states in the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

  • 20. Roulette00  |  June 25, 2014 at 10:16 am

    Does this mean the Tenth will just dismiss the Oklahoma case outright?

  • 21. Japrisot  |  June 25, 2014 at 9:25 am

    LGBTs get strict scrutiny on the fundamental rights question alone. No level of scrutiny established for equal protection purposes.

  • 22. Bruno71  |  June 25, 2014 at 9:30 am

    Is it that strict scrutiny applies to the fundamental right to marry, rather than specific to LGBT issues?

  • 23. ebohlman  |  June 25, 2014 at 9:44 am

    Yes. A Due Process claim that alleges substantial interference with a fundamental right gets evaluated under strict scrutiny regardless of what groups it affects. By upholding the Due Process claim in this case using strict scrutiny, the 10th has established that there's no such thing as "same-sex marriage", just plain "marriage" and that denying marriage to members of same-sex couples is denying them access to an established right, not a "new right".

  • 24. Bruno71  |  June 25, 2014 at 9:51 am

    I think this ruling will appeal to the legalese of the 5 SCOTUS justices in the Windsor majority. It's compelling, yet narrow enough, and doesn't take some of the leaps and bounds that likely scare them. We'll see, if this is the case they take.

  • 25. Ragavendran  |  June 25, 2014 at 5:26 pm

    No, strict scrutiny was applied for equal protection too (which seems strange to me), putting the Tenth Circuit to be the first federal court to unleash the strongest weapon against marriage bans. Quoting from the opinion:

    Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny.

    Maybe I'm misinterpreting the English used here? To me, as a computer scientist, this statement is logically equivalent to saying "if plaintiffs must fail on at least one of their due process or equal protection claims, then the appellants must show that Amendment 3 survives strict scrutiny," which means that Lucero is applying strict scrutiny to both due process and equal protection. ("X unless Y" is logically equivalent to "if not X, then Y". And, "not X and Y" is logically equivalent to "not X or not Y.") Sorry if this is confusing!

  • 26. ebohlman  |  June 25, 2014 at 8:51 pm

    The problem is that in everyday English, as well as some legalese, "and" frequently carries the meaning of what would be "or" in formal logic ("you can have the cake and the pie"), with colloquial "or" being equivalent to formal "exclusive or" ("you can have the cake or the pie"). I vaguely remember multiple cases involving the interpretation of "and" in statutes, with some interpreting it as a formal conjunction and others as a formal disjunction.

  • 27. KarlS  |  June 26, 2014 at 4:35 am

    Your boolean is fine but it seems pretty clear to me that "due process and equal protection" must mean precisely what it says…both grammatical and (!) logical wise. 🙂

  • 28. Japrisot  |  June 26, 2014 at 12:28 pm

    No. This is not an Equal Protection decision that turns of the level of scrutiny applied to laws that discriminate on the basis of sexual orientation. If it were, the opinion would have laid out how LGBTs are a discrete and insular minority faced with a history of discrimination and political powerlessness; this sets gays and lesbians apart as a class. Furthermore, the vast majority of plaintiffs, academics, court-watchers, etc. have argued for heightened scrutiny in equal protection claims, not strict scrutiny. In equal protection jurisprudence, strict scrutiny is typically reserved to things like racial classifications. This opinion is pure due process.

  • 29. Ragavendran  |  June 26, 2014 at 12:59 pm

    Then how do you explain the quote in Lucero's opinion? See also the quote he lifted from Plyler:

    If a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.”

    The words "compelling interest" and "precisely tailored" are strict scrutiny language, not intermediate scrutiny, which only requires "important interest" and "substantially related". In this sense, I think the court is relying on a different interpretation to the equal protection clause (an exception of sorts where strict scrutiny must be used) when a fundamental right is implicated, separate from due process.

    I agree with you that this opinion did not consider this case as a gender-based discrimination or sexual-orientation-based discrimination case. The word "discrimination" isn't even used by the majority opinion except in a footnote and in quoting what the district court found. I think the court was strategic in taking the "fundamental right" route through and through because (1) it allowed it to entirely bypass any difficult discussion of the Price-Cornelison precedent that established rational basis review for sexual orientation discrimination and (2) it would not have any automatic implications on the so-called "religious freedom" laws that are now popular in red states. Even for SCOTUS, this is the perfect way to rule for marriage equality without declaring heightened scrutiny for sexual orientation based equal protection claims.

  • 30. ebohlman  |  June 26, 2014 at 3:10 pm

    There's precedent that strict scrutiny applies to an Equal Protection claim when some groups, but not others, are limited in their access to a fundamental right, regardless of the status of the excluded groups. See the citation to Plyler v. Doe on p.42.

  • 31. Judge Strikes Down Indian&hellip  |  June 25, 2014 at 9:34 am

    […] in other marriage equality news, the Tenth Circuit Court of Appeals has affirmed an earlier ruling that declared Utah’s same-sex marriage ban […]

  • 32. Utah Marriage Equality Ba&hellip  |  June 25, 2014 at 9:46 am

    […] Equality on Trial reports: […]

  • 33. SeattleRobin  |  June 25, 2014 at 10:07 am

    Well, I'm ticked. I predicted the Fourth would release their opinion first and it sucks to be wrong.

    J/K…some days it's great to be wrong! WHEEEEEEE! YAHOOOOOO!

  • 34. Japrisot  |  June 25, 2014 at 10:13 am

    I'm guessing the Fourth Circuit will do it tomorrow and we can read it along with Hobby Lobby.

  • 35. Silvershrimp0  |  June 25, 2014 at 10:45 am

    Perhaps the 4th will wait until the SCOTUS ends their session because they don't intend to stay their ruling.

  • 36. ebohlman  |  June 25, 2014 at 11:12 am

    Why? The SCOTUS handles emergency motions all year round, not just when they're in session.

    A reason for doing it tomorrow might be that it's the anniversary of both Lawrence and Windsor. Then again, it's been only a month and a half since oral arguments in Bostic and though the 4th is fast, it's not all that faster than the 10th.

  • 37. ebohlman  |  June 25, 2014 at 3:31 pm

    Now that I think about it, today's rulings (both the 10th and the Indiana court) will probably delay the 4th's ruling briefly while they pore over them to make sure they didn't miss any issues brought up by either of them.

  • 38. Mike_Baltimore  |  June 25, 2014 at 6:55 pm

    I'm guessing that the 4th Circuit will hand down a ruling the first business day after SCOTUS closes this term. If SCOTUS ends the term on Thursday, the ruling, IMO, will be on Friday. If SCOTUS ends the term on Friday or Monday, the ruling from the 4th will occur on the next business day (on Monday or Tuesday), IMO.

    Frankly, I'd be surprised if the 4th intentionally or unintentionally steals 'the thunder' of SCOTUS. And 'the thunder' would almost certainly be stolen if the ruling in the 4th comes down before SCOTUS ends its term. (Hobby Lobby, anyone?)

  • 39. DACiowan  |  June 25, 2014 at 7:22 pm

    There are four opinions remaining to be released for this term, according to

    Taking a guess, I'm thinking that is two more days of opinion issuing, with tomorrow being one and Monday, June 30 being the last.

  • 40. Roulette00  |  June 25, 2014 at 11:44 am

    I await the Fourth Circuit decision with bated breath, if only to imagine with great delight the reaction of our erstwhile contributor TKinSC. South Carolina held its court case pending reaction from the Fourth, and if the decision comes down to uphold same-sex marriage, I expect ashes and sackcloth and much wailing and gnashing of big pointy teeth from the direction of the Carolinas.

  • 41. Corey_from_MD  |  June 28, 2014 at 9:20 am

    Roulette00, I am cutting and pasting again here, "We all know that tkinsc2 ia a troll that only snoops around on the weekends. It is likely a top-level NOM fanatic. As the moderator mentioned, the best tactic is to the completely and totally ignore the troll. It is using this forum as a playpen since it losing and/or desperately seeking something to critique and cling to and there is nothing else better for it to do. Once again the best response is not to respond at all and ignore." Taunting the troll feeds it wastefully…

  • 42. Roulette00  |  June 30, 2014 at 5:35 pm

    My post long preceded the troll's return. I do not intend to respond to it, since it seems lost and rudderless without a windmill against which to tilt.

  • 43. Rik_SD  |  June 25, 2014 at 10:11 am

    so presumably they will issue a separate but similar ruling on Oklahoma? Time frame?

  • 44. Bruno71  |  June 25, 2014 at 10:46 am

    Utah & Oklahoma were heard within days of each other, so I'd expect a ruling from Oklahoma within days.

  • 45. jdw_karasu  |  June 25, 2014 at 11:02 am

    They were a week apart:

    UT: April 10, 2014
    OK: April 17, 2014

    OK has a slightly issue they were juggling on who the Plaintiffs could properly sue. It's a bit technical, but the judges also seemed to get the basic fact that the Plaintiffs sued who the court told them to sue.

    I agree with people who expect something soon. I wonder of Lucero and Holmes are splitting the writing up: Lucero gets the UT case to lay the foundation, Holmes gets to follow on with the OK case, and they both get to have their moment in the history of this matter. That would be kind of cool, and have another decision by a GOP Judge (Holmes) looking Kennedy in the eye when the issue gets back in front of SCOTUS.

  • 46. MichaelGrabow  |  June 25, 2014 at 10:55 am

    I agree with Bruno. It was April 10th and 17th, I don't see why it would take another 6+ weeks for OK.

  • 47. BenG1980  |  June 25, 2014 at 11:01 am

    There were standing issues that complicated the Bishop case.

  • 48. ebohlman  |  June 25, 2014 at 11:15 am

    No kidding: a kid born on the day Bishop was originally filed would be starting 5th grade this fall.

  • 49. BillinNO  |  June 25, 2014 at 10:14 am

    Will they issue a separate decision on OK? Surely yes? And c'mon 4th Circuit!

  • 50. jdw_karasu  |  June 25, 2014 at 10:19 am

    Rather rich that Kelly hangs his hat on a rational basis procreation and effective parenting. Kennedy in Windsor slapped them down. Kelly has to know they will fail if/when this case goes up to SCOTUS.

  • 51. Bruno71  |  June 25, 2014 at 10:27 am

    We now have a split among circuit courts regarding marriage equality. The 8th's decision in Bruning vs. the 10th's decision in Kitchen. Will this be enough to have them take a case?

  • 52. ebohlman  |  June 25, 2014 at 1:02 pm

    Doubtful: there's too much water under the bridge between the two decisions. Bruning was 8 years ago, which in marriage-equality jurisprudence is ancient.

  • 53. davepCA  |  June 25, 2014 at 1:07 pm

    I think you're right. I think it will take a circuit split among the current crop of appeals to force the issue at SCOTUS.

  • 54. Bruno71  |  June 25, 2014 at 1:08 pm

    If Bruning is ancient, what must Baker be? Mesozoic?

  • 55. DocZenobia  |  June 25, 2014 at 3:08 pm


  • 56. DocZenobia  |  June 25, 2014 at 5:34 pm

    The factor that will force them to take a ME case next term is not a circuit split, but "gay means stay." That is going to increase pressure to resolve this with every circuit court decision.

    The interesting question here is whether SCOTUS continues to stay these decisions even at the circuit level. What were the terms of the stay that the Tenth issued? I haven't been able to read it. If the stay was issued for a limited period and SCOTUS issues its own stay, it's 100% certain they will take a case for next term.

  • 57. Bruno71  |  June 25, 2014 at 5:42 pm

    There's no time limit on the 10th's stay, it's in place until SCOTUS acts.

  • 58. SeattleRobin  |  June 25, 2014 at 7:32 pm

    SCOTUS won't need to do any more stays. I can't imagine any of the circuit courts not staying a pro equality decision at this point. As Bruno said, there's no time limit on the Kitchen stay, it's the full duration until the case is resolved and mandate issued. I agree that status puts pressure on SCOTUS to grant cert.

  • 59. JamesInCA  |  June 26, 2014 at 9:50 am

    And … bam! New action in the 8th:

    It's a state action for now, but once they lose in state court they clearly intend to pursue federal action.

  • 60. sfbob  |  June 25, 2014 at 10:30 am

    Currently reading the decision, I appreciate the fact that the court addresses, in detail the federalism aspect of Windsor in a very detailed and specific way. State defendants have over-emphasized one portion of one sentence in Windsor pertaining of state power to regulate marriage while ignoring the "must respect the constitutional rights of persons" portion of the same sentence. I haven't finished reading the argument here but I predict it will be enjoyable.

  • 61. ebohlman  |  June 25, 2014 at 11:18 am

    I really like the fact that Zablocki and Turner, two cases that I consider underappreciated, are now getting frequently cited.

  • 62. FilbertB  |  June 25, 2014 at 11:30 am

    I agree. i think those ruling are key in establishing marriage as a fundamental right.

  • 63. ebohlman  |  June 25, 2014 at 1:06 pm

    That had already been pretty well established as of Loving, but the latter two cases really established that state restrictions on marriage had to comply with the US Constitution even when the classification at stake wasn't as weighty as race, i.e. Loving wasn't decided on "race is a special case".

  • 64. brandall  |  June 25, 2014 at 11:31 am

    The zinger to the states position in one sentence:

    We see no reason to allow Utah’s invocation of its power to “define the marital relation,” Windsor, 133 S. Ct. at 2692, to become “a talisman, by whose magic power the whole fabric which the law had erected . . . is at once dissolved,”

  • 65. Mike_Baltimore  |  June 25, 2014 at 1:11 pm

    An indirect zinger also at the Mormon's 'magic underwear'?

    'Magic power' and 'whole fabric'?

  • 66. JayJonson  |  June 25, 2014 at 11:34 am

    I especially like the repeated emphasis on Lawrence and the liberty interest it embodies.

  • 67. Bruno71  |  June 25, 2014 at 10:34 am

    Louisiana will not be settled quickly:

  • 68. MichaelGrabow  |  June 25, 2014 at 11:00 am

    "Still pending are questions of whether Louisiana should legalize same-sex marriages, period, and whether Louisiana is violating gay and lesbian couples' First Amendment rights by failing to recognize their unions."

    First Amendment?

  • 69. EricKoszyk  |  June 25, 2014 at 5:15 pm

    Maybe freedom of religion? Since many religions are now on record as being in favor of same sex marriages, denying same sex couples the right to marry violates those people's religious freedom.

    Not to mention violates the rights of numerous congregations.

  • 70. Mike_Baltimore  |  June 25, 2014 at 7:11 pm


    You're arguing from a logical basis. Since when have bigots (and almost all who espouse 'religious freedom' clap-trap are bigots) listened to anything logical?

  • 71. MichaelGrabow  |  June 25, 2014 at 11:22 am

  • 72. marvelmvs  |  June 25, 2014 at 10:38 am

    I just got finished reading through the main opinion (not the concurrence) and I thought the judges were quite thorough in their coverage of the issues. They seem to have presented the most persuasive explanation for why the right to marry extends to same-sex couples that I have read. Not that I needed to be persuaded but it helps to have a decision that is so clearly spelled-out with reliance on precedent.

    I also liked how they assumed that the reasons given were compelling and simply struck down the ban based on lack of connection between the reasons given and the actual law itself. It seems the concurrence is just as long as the main opinion.

  • 73. RCChicago  |  June 25, 2014 at 7:06 pm

    I have been struck during the past year on the carefully laid out articulation of the reasoning behind the rulings by a number of the judges—in Virginia, Texas, Utah, Michigan, Idaho…It is particularly infuriating to hear opponents go on and on about activist judges circumventing the judicial process when all they need to do is read the rulings.

  • 74. JoshLmno  |  June 25, 2014 at 8:35 pm

    I couldn't agree more! Nothing they say is true. They are either really stupid to not understand the rulings or just plain liars. I believe the latter to be true.

  • 75. brandall  |  June 25, 2014 at 10:39 am

    An eloquent reply to using Baker as a definitive defense for denying SSM:

    "Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810 (1972) (per curiam). Since that date, the seed has grown."

  • 76. Bruno71  |  June 25, 2014 at 10:51 am

    Kelly's dissent basically says it's up to SCOTUS to explicitly reverse itself on Baker.

  • 77. Roulette00  |  June 25, 2014 at 10:57 am

    His argument is, in essence, "Make me!" He is prepared to abrogate his judicial duty to uphold the Constitution, disregard established precedent, ignore common sense, and pretend that the voters have unlimited authority to overrule any and all of the above. He's basically saying he has chosen the hill on which he plans to die, and only when the masses close in upon him will he concede their right to choose against him. Philosopher-kings indeed.

  • 78. FilbertB  |  June 25, 2014 at 11:13 am

    That is a fine piece of writing there -I have wanted to let you know for some time that I appreciate your commentary.
    Best regards,

  • 79. Roulette00  |  June 25, 2014 at 11:36 am

    Thank you! I have been following these cases and this site with avid interest, and learning much about our legal system in the process. (Prior to registering I commented as Corey from Seattle.)

  • 80. Zack12  |  June 28, 2014 at 6:04 am

    Judges from all across the political spectrum disagree with you.

  • 81. Corey_from_MD  |  June 28, 2014 at 9:02 am

    Zack12, as a reminder. We all know that tkinsc2 ia a troll that only snoops around on the weekends. It is likely a top-level NOM fanatic. As the moderator mentioned, the best tactic is to the completely and totally ignore the troll. It is using this forum as a playpen since it losing and/or desperately seeking something to critique and cling to and there is nothing else better for it to do. Once again the best response is not to respond at all and ignore.

  • 82. davepCA  |  June 28, 2014 at 4:59 pm

    aah, such self delusion and willful ignorance… keep sticking your fingers in your ears and shutting your eyes reeeal tight.

    …..BTW, I can think of at least three recent trials in which the court clearly explained how and why Baker was no longer controlling. Why can't you? Maybe you should do a teeny tiny bit of research before posting those idiotic remarks, okay?

    …UPDATE – I got curious and started checking the rulings, and so far, I can't find a single recent ruling that doesn't explain how and why Baker is no longer controlling. Starting with Windsor, then Utah, Wisconsin, Pennsylvania, Idaho, Indiana….

    It seems that every ruling since Windsor has clearly stated that Baker is no longer controlling.

  • 83. davepCA  |  June 29, 2014 at 8:18 am

    You made the original claim. So back up your claim. Name one ruling from any judge since Windsor that agrees with your claim that Baker still controls. Your willful denial is astounding.

  • 84. davepCA  |  June 30, 2014 at 12:42 pm

    Yeah, that would explain why every court has declined to rule on same sex marriage since Baker, because there haven't been any doctrinal developments that would change that… oh.. wait… The second circuit ruled that Baker was not controlling in the Windsor trial because of 40 years of doctrinal developments in this legal issue, and then SCOTUS concurred with their findings and upheld their ruling, similar to all of the findings and rulings in every trial since then. Swing and a miss.

  • 85. Zack12  |  June 30, 2014 at 1:47 pm

    Indeed.. and I wonder if he/she realizes the fact that some of the judges that struck down DOMA on the way to the Supreme Court were Conservative justices.

  • 86. Waxr  |  June 25, 2014 at 10:50 am

    It still does not mran anything until SCOTUS takes it up. It seems so close, yet so far.

  • 87. MichaelGrabow  |  June 25, 2014 at 10:56 am

    Could not disagree more.

  • 88. DocZenobia  |  June 25, 2014 at 3:13 pm

    SCOTUS isn't going to be considering this tabula rasa. Sixteen unanimous district courts and so far one circuit court is a pretty substantial fact.

  • 89. MichaelGrabow  |  June 25, 2014 at 10:58 am

    Does anyone know when is the earliest the SCOTUS could decline to take the appeal?

  • 90. MichaelGrabow  |  June 25, 2014 at 11:02 am

    Also, does anyone knows whether Utah plans to request en banc review.

  • 91. Roulette00  |  June 25, 2014 at 11:05 am

    I expect they will. As long as a stay is in place, requesting en banc is a delaying action with no downside for Utah. It could stall out so the Supremes are denied a chance to review this case until next fall.

  • 92. scream4ever  |  June 25, 2014 at 11:15 am

    It was likely stall it 3 months tops, which would still give them enough time to grant cert for a 2015 hearing.

  • 93. Roulette00  |  June 25, 2014 at 11:33 am

    Which means Utah does not damage its position by trying; their worst-case scenario is that it gets heard this year anyway.

  • 94. jdw_karasu  |  June 25, 2014 at 11:53 am

    Here's the timeline for Windsor and Perry:

    Circuit Ruling: September 27, 2012
    Appeal: October 18, 2012 <–
    Certiorari: December 7, 2012 <–
    Oral Arguments: March 27, 2013
    Ruling: June 26, 2013

    Circuit Ruling: February 7, 2012
    En Banc Request: February 21, 2012
    En Banc Denied: June 5, 2012 <–
    Appeal: July 31, 2012 <–
    Certiorari: December 7, 2012
    Oral Arguments: March 26, 2013
    Ruling: June 26, 2013

    The En Banc request slowed down Perry just a bit.

    Anyway, we are well ahead of the time where Windsor got picked up, and slightly behind Perry though it's likely Utah will be quicker to get appealed. If SCOTUS want to pick this up to be heard early next year and get decided in June 2015, they certainly can.

    It's also possibly that from a political standpoint that they might: it would clear the issue off the decks more than a year ahead of the Nov 2016 presidential elections, where also the Senate elections are rather massive (i.e. the GOP defending the 2010 wave seats). Kennedy is fairly loyal to the GOP, and Roberts is more politically savy than most. Deal with it in Jun 2015, and while it might be a talking point in the GOP Primaries in 2016, it will be largely a non-issue by Nov 2016 with the exception of the extreme base.

    It's kind of how it is here in California: Perry was decided just last June, and now a year later it seems to be a non-issue the campaigns. It might play in some base areas, but life moved on.

  • 95. Roulette00  |  June 25, 2014 at 1:21 pm

    I agree that there are good reasons to, as you say, clear the decks prior to the next presidential campaign. It may well be.

    But what seems obvious and strategic from a national-election perspective sometimes requires local politicians to fall on their swords. I'm not sure the GOP is sufficiently unified for that. Local politicians could drag out their cases in an attempt to appear strong for their far-right voting bloc, dragging things out until 2016. Or a local politician might (as did Corbett and Christie) shrewdly waive the right to appeal, for fear of alienating a strongly centrist electorate. There are many cases still to be heard. I wonder that all those town-and-county politicians will do what's best for the party princes of the national scene.

  • 96. jdw_karasu  |  June 27, 2014 at 3:32 pm

    I don't see them falling on their swords. More than some in SCOTUS who might have their GOP love as much in their mind as in their heart are willing to see the political landscape:

    * SCOTUS will eventually take up a case for a Loving vs VA moment
    * Kennedy will rule in favor of striking down bans
    * there are political issues in several general elections if this lingers to 2016

    It's not just a Presidential thing, but those Senate campaigns as well. Issue a ruling in June 2015, and it's off the table for 2016.

    I suspect Roberts gets that. Kennedy probably does as well. Despite his "being on out side" on marriage equality (we believe), he's rather heartless on just about all other rights issues, and pretty GOP through and through. No one expects him to retire in 2017-2020 if a Dem retains the White House. So it's also a calculation that he may be making as well.

  • 97. Randolph_Finder  |  June 26, 2014 at 12:06 pm

    I'd say that for 2016, that it depends on both the speed of the Supreme Court *and* the Republican Nominee (I'm assuming that the Democratic Nominee is at least as pro-ME as Hillary, for which I think Schweitzer may be the only exception.)

    Ideal for the Democrats would be the following. The Supreme Court doesn't take on a case until the 2015-2016 session, waits until the end of the session to announce the decision, which occurs during the Republican National Convention (The Republicans have already decided to move the convention to June 2016) and someone like Santorum or Huckabee is the Nominee. (The idea of Huckabee spending 15 minutes of his acceptance speech decrying the Supreme Court on the issue is absolutely delicious…)

    The other end of the scale is taking it *this* session and the Republicans nominating Jeb Bush….

  • 98. jdw_karasu  |  June 27, 2014 at 3:38 pm

    Ideal for Dems is having SCOTUS take the case in December, and rule in June 2015. We're utterly fucked if:

    * the GOP takes back to Senate in Novermber
    * RBG drops dead (or is incapacitated)

    A GOP Senate will simply refuse to sit a 9th Judge, and we'll be stuck at 4-4. They'll roll the dice at winning in 2016, and that even if the Dems take over the Senate, that they'll never go to the judicial brinksmanship that the GOP would over judges. And they probably would be right on that.

    I don't think whatever political value having this as an issue in 2016 might be to the Dems outweighs the very real risk of RGB hitting the wall on being able to hold her seat.

    Get it done, and the sooner the better.

  • 99. dingomanusa  |  June 27, 2014 at 4:14 pm

    I agree the sooner the better. But I don't think people should be focused on Ruth Bader Ginsburg dropping dead. From what I have read she is a very healthy old bird and will probably live beyond 90.

    There are many people calling for her to retire because they are afraid she will drop dead because of her age/previous health issues which I find disrespectful and offensive.

    With the way the GOP is operating, I think that many closely contested races might actually go Democratic in the midterm. The future is ours to take if we keep our heads and get people out to vote in the upcoming midterm.

  • 100. jdw_karasu  |  June 27, 2014 at 5:53 pm

    I don't disagree, but…

    We lost the court when Thurgood Marshall retired and Bush replaced him with Thomas. We had gotten lucky several times prior to that such as O'Connor not being a completely hard right winger and Souter turning to our side. With Alito replacing O'Connor, the impact of losing Marshall was complete.

    Having 6 conservative justices on the court would be a horror show. Not just the rulings, but also in the generation it will take to come close to swinging that back. They will carry Tony, Thomas, Robert and Alito out on stretchers before any of those four retire while a Dem is in office. It's also very clear that Kennedy won't retire with a Dem President. So we need to protect every seat we have.

    RGB has to know this. She's seen how those 5 vote since O'Connor retired, and it's more clear in her dissents that she's not happy with it. She has to know that if we lose her seat, we're not getting a 5-4 majority back any time soon.

  • 101. debater7474  |  June 25, 2014 at 11:03 am

    This could actually drag out if Utah petitions for rehearing en banc. In such a case, it could take many months for that petition to be denied because time would have to be allowed for the writing of dissents. That could delay the petition of cert all the way to October or November.

  • 102. Mike_Baltimore  |  June 25, 2014 at 1:01 pm

    And SCOTUS takes up petitions for certiorari until December for the current term, and can schedule arguments for the term at any time.

    So let Utah drag it's feet until November. SCOTUS would still have time to consider the petition for cert and schedule arguments.

    And the 10th Circuit does NOT have the same 'schedule' as the 9th Circuit for en banc hearings. In any Circuit outside the 9th, an en banc hearing would be a LOT faster than one in the 9th.

  • 103. jdw_karasu  |  June 25, 2014 at 11:07 am

    BTW… are most of us hoping that it's Kitchen that is the case in front of SCOTUS? In part it's a very clean State ban that would put all the rest to bed if struck down. But mostly because of Prop 8. I can't think of anything that would be a better Loving vs VA for long fight than to have it looked back as Kitchen vs UT (Herbert) for ever after. Perfect karma.

  • 104. Bruno71  |  June 25, 2014 at 11:10 am

    I have a bit of a soft spot for Shelby's ruling since it was the first after Windsor and was so eloquent and maybe a bit surprising at the time. It would be fitting. I think they might take the Virginia case though, because it's probably the broadest ban of them all.

  • 105. scream4ever  |  June 25, 2014 at 11:14 am

    Just to be clear, if they deny cert in this case, then same-sex marriage is essentially legal throughout the entire circuit, correct?

  • 106. Bruno71  |  June 25, 2014 at 11:17 am

    If they deny cert without hearing any other case for the time being, yes. They could also deny cert after putting on hold to hear another case, pending that outcome.

  • 107. jdw_karasu  |  June 25, 2014 at 11:57 am

    There may be several other appeals between now and say December when they're looking at certs. They can pick and chose which one they want. I'm kind of rooting for Utah/Kitchen for symbolism… and because I have a certain "animus" thanks to Prop 8. 🙂

  • 108. samg68  |  June 25, 2014 at 11:24 am

    Yeah i feel the same, it should be Kitchen for sentimental reasons. I like the fact the legal team is not made up of the big boys, they took it on when the wider movement didn't believe a state like Utah could be won.

  • 109. BenG1980  |  June 25, 2014 at 11:12 am

    I'm torn between Kitchen and Bostic. It would be cool to see Boies and Olson win together again.

  • 110. scream4ever  |  June 25, 2014 at 11:27 am

    The ideal scenario would be for them consolidate them and hear both together.

  • 111. FilbertB  |  June 25, 2014 at 11:27 am

    My thought has been all along that Kitchen would be granted cert by SCOTUS -because of the timeline where Shelby's ruling was first heard in appeal (and as it turned out, the first ruling by a circuit court, preceding the 4th's ruling) and the issuance of a stay by the SCOTUS… and also because it led the way in post-Windsor jurisprudence -being cited in many subsequent rulings by the courts.

  • 112. Roulette00  |  June 25, 2014 at 2:10 pm

    I'm rooting for DeBoer v. Snyder. I want to see the Supremes weigh in on the validity of the Regnerus "study."

  • 113. RnL2008  |  June 25, 2014 at 11:07 am

    This is so AWESOME………and now what will the State of Utah do? My guess is appeal to SCOTUS and probably lose there as well!!!

  • 114. Bruno71  |  June 25, 2014 at 11:11 am

    Appeal en banc, then appeal to SCOTUS.

  • 115. RnL2008  |  June 25, 2014 at 11:27 am

    You are correct!!!

  • 116. Bruno71  |  June 25, 2014 at 11:41 am

    One reason they may not appeal en banc: the sooner they get the case in consideration by SCOTUS, the sooner they can nip the army of district court rulings in our favor in the bud.

  • 117. sfbob  |  June 25, 2014 at 2:22 pm

    I suspect they will do whatever they think will postpone justice the longest.

    Utah's statewide elected officials seem to be among those most obsessed with going down with the ship, it seems. They will do whatever it takes to defend their indefensible constitutional amendment even if it wastes taxpayer money and ultimately makes the state responsible for a nationwide ruling on marriage equality.

  • 118. jdw_karasu  |  June 25, 2014 at 12:03 pm

    They probably won't appeal en banc. It's 7-5 Dem once Moritz gets her commission. Utah's press release implied that they'd just as soon take it straight to SCOTUS.

  • 119. RnL2008  |  June 25, 2014 at 11:24 am

    Again……reading Kelly's dissent is just remarkable that a Judge could come to ANY conclusion like he did with regards to Baker vs Nelson………..but then when folks have the animus towards Gays and Lesbians that some do….it is NOT nearly as surprising, but folks like Kelly are a dying breed….just not quick enough in my opinion!!!

  • 120. RCChicago  |  June 25, 2014 at 9:14 pm

    He insisted in a newspaper interview last April that personal preferences had no place in a judge's decision-making process. Hmmmmm……

  • 121. RnL2008  |  June 25, 2014 at 9:24 pm

    Funny how that ONLY applies to those of us who happen to be Gay or Lesbian though and NOT to those who CHOOSE their religious beliefs, wonder why?

  • 122. RnL2008  |  June 25, 2014 at 9:25 pm

    I wonder if Kelly and Scalia went to the same Law School…….ugh:(

  • 123. ebohlman  |  June 25, 2014 at 9:45 pm

    FWIW, Kelly went to Fordham and Scalia went to Harvard.

  • 124. RnL2008  |  June 25, 2014 at 9:56 pm

    Sorry, my response was pure sarcasm!!!

  • 125. ebohlman  |  June 26, 2014 at 12:07 am

    I knew that; that's why I prefixed my response with For What It's Worth.

  • 126. RnL2008  |  June 26, 2014 at 12:55 am

    Oh, okay…….:-)

  • 127. Dave_wx  |  June 25, 2014 at 11:27 am

    For those wanting to know how long the stay is in effect:

    "If no petition for certiorari is filed, we would lift the stay and issue our mandate
    when the deadline for filing the petition lapses. See Perry v. Brown, 681 F.3d 1065,
    1066-67 (9th Cir. 2012) (per curiam). If a petition for certiorari is filed and denied, we
    would lift the stay and issue the mandate. See Stafford v. Ward, 60 F.3d 668, 671 (10th
    Cir. 1995). And if a petition for certiorari is filed and granted, the stay will remain in
    effect until the Supreme Court resolves the dispute. See id. at 670."
    (Annotation on pg. 65)

  • 128. brandall  |  June 25, 2014 at 12:17 pm

    How long does Utah have to file for certiorari?

  • 129. Dave_wx  |  June 25, 2014 at 12:40 pm

    Rule #13 on review for certiorari:

    "Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review."

  • 130. JayJonson  |  June 25, 2014 at 11:39 am

    I love the commonsensical yet thorough evisceration of the state's attempt to liken same-sex marriage to the evils of no-fault divorce:

    "We cannot accept appellants’ claim that allowing same-sex couples to marry is analogous to a law that permits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of marriages in a state."

    This little math lesson is then followed by the majority pointing out that in fact Utah has a no-fault divorce law!

  • 131. SeattleRobin  |  June 25, 2014 at 11:59 am

    I'm still reading the decision and am not caught up on comments, but I just had to interject that the judge just received one thousand bonus points from me for using the phrase "parade of horribles."

  • 132. palerobber  |  June 25, 2014 at 12:00 pm

    i liked this bit:
    "Appellants’ assertion that plaintiffs are excluded from the institution of marriage by definition is wholly circular. Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages. Appellants’ reliance on the modifier “definitional” does not serve a meaningful function in this context."

  • 133. cpnlsn88  |  June 25, 2014 at 12:12 pm

    I love 'parade of horribles'. I also love 'Setting aside the implausibility of the comparison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing' and 'Through its no-fault divorce statute, Utah allows a spouse—the bedrock component of the marital unit—to leave his family whenever he wants and for whatever reason moves him. It is difficult to imagine how the State’s refusal to recognize same-sex marriage undercuts in any meaningful way a state message of support for marital constancy given its adoption of a divorce policy that conveys a message of indifference to marital longevity' p53.

    Also, am I alone in seeing a veiled joke in footnote 6 on page 32? I gave a wry smile on reading it anyway…..

  • 134. Bruno71  |  June 25, 2014 at 12:18 pm

    That footnote is definitely on purpose. That is hysterical.

  • 135. sfbob  |  June 25, 2014 at 2:19 pm

    I must confess to not getting the joke. I know it's not funny if you have to explain it but could you give me a hint? 🙂

    Also I'm not quite sure if what appears on the bottom of page 33 is a separate footnote that lacks its own number or is a continuation of the footnote on page 32. It is quote cogent though: "Congress cannot authorize a state to violate the Fourteenth Amendment." So much for Section 2 of DOMA.

  • 136. Bruno71  |  June 25, 2014 at 2:36 pm

    It's a footnote that calls out the appellants for raising an issue only in a footnote that draws conclusions. Then he draws a conclusion in the footnote.

  • 137. sfbob  |  June 25, 2014 at 2:39 pm

    Oh. Duh. Sometimes I scare myself.

  • 138. ebohlman  |  June 25, 2014 at 3:15 pm

    OK, I guess I missed it because it was referring to the unpersuasive nature of footnotes in briefs rather than decisions, but the parallel does seem to be a little amusing.

  • 139. StraightDave  |  June 25, 2014 at 6:57 pm

    Quite snarky for a Circuit Court,I'd say. These folks are all definitely feeling their oats these days …and probably laughing their asses off as they type. It seems everybody has some kind of a dig to get in, if not at Scalia then the state govt's. All thoroughly deserved, too, the cherry on top of the sundae for us happy observers.

  • 140. palerobber  |  June 25, 2014 at 12:22 pm

    Utah's cousin marriage law FTW!

    from the opinion:
    "Each [of the state's four justifications for Amendment 3] rests on a link between marriage and procreation.
    The only explicit reference to reproduction in Utah’s marriage law is a provision that allows first cousins to marry if “both parties are 65 years of age or older; or . . . if both parties are 55 years of age or older, upon a finding by the district court . . . that either party is unable to reproduce.” Utah Code § 30-1-1(2). This statute thus extends marriage rights to certain couples based on a showing of _inability_ to reproduce."

  • 141. sfbob  |  June 25, 2014 at 2:55 pm

    Game. Set. Match. it's about time a court mentioned this little tidbit. it certainly contradicts the state's chief assertions.

  • 142. StraightDave  |  June 25, 2014 at 7:01 pm

    Too bad they can't use red ink in decisions to highlight _inability_.
    I think Wisc has a similar law. Think the 7th Circuit will plagiarize?… oops, I mean cite.

  • 143. MichaelGrabow  |  June 25, 2014 at 12:48 pm

    I don't mean to ruin the positive mood, but this should help anyone in need of keeping in mind the ignorant and hateful people out there. I think my favorite part is the never ending implication that liberal democrat elected judges have made these decisions. He should familiarize himself with a man by the name of George W. Bush, who nominated Judge Holmes.

    The Left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.

  • 144. Bruno71  |  June 25, 2014 at 12:52 pm

    Yes, because I guess Marylanders, Minnesotans, Mainers and Washingtonites aren't American. They didn't refuse to endorse "that agenda" at the polls.

  • 145. Roulette00  |  June 25, 2014 at 1:00 pm

    The quote is purest hogwash. The people elected liberal politicians to offices with the power and duty to install judges, who then did the job they were elected to do. The Right attempted to get their own stuffed-shirt marionettes elected, but failed.

    On this subject the Right has a history of appealing to whatever authority agrees with them. The people want same-sex marriage? Appeal to the legislature with "we are a nation of laws!" The legislature passes same-sex marriage? Declare your faith in the courts with, "We must uphold the principles of our constitution!" The courts deny your ban? Appeal to the people with cries of "activist judge! The people must decide!" Sooner or later they're back to their one and only source, a book of ignorant Iron-Age myths written by neurotic shepherds who routinely killed each other over whose god had bigger junk.

  • 146. davepCA  |  June 25, 2014 at 1:05 pm


  • 147. Bruno71  |  June 25, 2014 at 1:06 pm

    Not to mention, some of these judges were appointed by notably conservative politicians.

  • 148. sfbob  |  June 25, 2014 at 2:20 pm

    Nobody has ever accused Perkins of being other than the ignorant homophobe he actually is.

  • 149. Steve  |  June 25, 2014 at 2:28 pm

    It's Tony Perkins. Who is also a big fan of white supremacists like the KKK and the Council of Conservative Citizens.

  • 150. ebohlman  |  June 25, 2014 at 2:49 pm

    What's utterly ridiculous about that sort of argument is that judges (apart from the Big Nine) are randomly assigned cases; they have no discretion over which cases to hear.

  • 151. palerobber  |  June 25, 2014 at 1:32 pm

    here's another nice bit from the opinion:

    "Appellants [i.e. State of Utah] have retreated from any categorical conclusions regarding the quality of same-sex parenting. Although they presented to the district court voluminous scholarship addressing various parenting issues, they now take the position that the social science is unsettled."

  • 152. JayJonson  |  June 26, 2014 at 7:00 am

    Yes, they amended their brief after Judge Friedman ridiculed Regnerus in Deboer.

  • 153. Zack12  |  June 25, 2014 at 1:56 pm

    The ruling came down like many of us thought it would but it's still darn good to see it finally happen.
    Congrats to the couples in Utah!

  • 154. SeattleRobin  |  June 25, 2014 at 2:29 pm

    I liked the "sleight of hand" discussion where they really broke things down in detail as to not only why they wouldn't fly, but how the state's "rational" reasons are often blatantly contradicted by their own laws or reasoning. I thought the part specifically about shared characteristics was especially important.

    Like this line: "The state may not impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who share a characteristic urged to be relevant." (re: the state urging the court to consider natural procreation highly relevant.)

    I'd imagine all the district court judges who were quoted in this decision are tickled. Plus it goes to show how each building block is important to the whole, even when they start seeming redundant after a while.

    But am I the only one made a little nervous that this was decided entirely on the due process fundamental right to marriage basis? I like it when judges cover every base in case one argument is rejected, another could carry the day. In this case they didn't touch equal protection. I think due process is correct, I just like the CYA philosophy.

    Lastly, the dissent seems pretty weak, but I've only ever read a couple, so not much basis for comparison. On the merits he not only argues that only rational basis applies, but such a generous interpretation that basically "it's rational because we say it is" is enough to win the day. There's no serious attempt to support what's rational about it. And then he completely dumps the out of state recognition issue by saying the marriage license issue resolves it. But there are some different legal arguments to be made for marriage recognition, and personally, out of the two, I think has the stronger arguments. So should need more effort to counter, not less with a wave of the hand.

  • 155. JayJonson  |  June 25, 2014 at 2:50 pm

    The dissent is very weak. There is nothing there. Just Baker and Scalia and a weird reading of Windsor.

    I am not worried about the majority's "fundamental right to marriage" basis. I think that is the heart of the matter, and they make the case very well indeed. I am not sure how else they could have proceeded without opening up the can of worms about whether sexual orientation is entitled to strict scrutiny, which is quite contentious in the Tenth Circuit and might trigger an en banc hearing. The ruling is thoroughly grounded in Lawrence and Windsor and Loving.

  • 156. David_Sandy_UT  |  June 25, 2014 at 3:00 pm

    The dissent is just a regurgitation of the state's irrational argument that discrimination will make more people want to get married or stay married while completely ignoring the harm caused to real people, real families, and especially real children.

  • 157. ebohlman  |  June 25, 2014 at 3:09 pm

    The principle of judicial economy means that at the appellate level, any one court is likely to decide on either due process or equal protection, but not both (unless the majority opinion uses one and a concurring opinion uses the other). That's a major part of the reason for my (admittedly unpopular) hope that the SCOTUS waits until the 2015-16 term to take an ME case: I want to see several (favorable) appellate decisions that address the issue from different angles. Partially this is because that would give a better chance of a favorable SCOTUS ruling, but also because marriage equality is just one aspect of the broader goal of GLBT equality and I'd like to see the development of a body of case law that's applicable beyond marriage (for example, if the SCOTUS were to rule on Kitchen next term, they could do it while still leaving the level of scrutiny for Equal Protection claims unsettled).

    I don't think a 2016 decision would pose a problem because of the election; by that time it would be a "cleanup" decision similar to Loving or Lawrence, but on a much less controversial issue; it would be about getting holdout states to fall in line with the mainstream (and few if any of those states are likely to be in play for either the Presidency or the Senate).

  • 158. JayJonson  |  June 25, 2014 at 4:34 pm

    Well, it would pose a problem for those of us who live in red states.

  • 159. StraightDave  |  June 25, 2014 at 7:14 pm

    By the time SCOTUS hears Kitchen in early 2015, there will surely be a few other circuit rulings up on the wall to reference. They'll have no shortage of material to consider.

  • 160. Mike_Baltimore  |  June 25, 2014 at 7:56 pm

    There still are several cases in Circuit Courts which can easily be expected to be decided in the next few months:

    4th – one case
    6th – five cases
    10th – one case

    Possibly the 5th (one case).

    And there still is time for decisions (though clearly not enough time in many people's opinion) in the 9th (Nevada and Idaho) and 7th (Wisconsin).

    Add to that the decisions handed down in several District Courts (not being appealed and/or being appealed to a Circuit Court, but almost certainly where rulings will be handed down sometime next year), and public opinion consistently over 50% for ME, and I think SCOTUS couldn't (realistically) say "there is not enough case history for us to make a decision".

  • 161. ebohlman  |  June 25, 2014 at 8:18 pm

    Keep in mind that the moment the SCOTUS grants cert on a ME case, all the cases in the pipeline will almost certainly be put on hold until the SCOTUS rules. Worst case is that the SCOTUS grants cert on a case at the beginning of February, meaning it can't be decided until the next term, potentially causing everything to grind to a halt for 17 months. If they issue a narrow or less-than-completely favorable ruling, lots of momentum will have been lost.

  • 162. RCChicago  |  June 25, 2014 at 9:18 pm

    An "ugh" scenario.

  • 163. chrismac2  |  June 25, 2014 at 2:52 pm

    Sorry if I'm duplicating anyone else's post, but here's one part I really love. So often people talk about how two men CAN'T get married because marriage is defined as union of man and woman. Well of course, we know definition of what constitutes a marriage HAS in fact changed over time, and you don't get to exclude classes from fundamental rights by building that exclusion into the definition:

    "To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question . . . ."

  • 164. David_Midvale_UT  |  June 25, 2014 at 2:56 pm

    Of course Herbert has to take this all the way to SCOTUS. The Fifteen Old While Men who are the true rulers of the Theocracy of Utah have already given him his orders.

  • 165. Bruno71  |  June 25, 2014 at 3:00 pm

    Speaking of which…

  • 166. StraightDave  |  June 25, 2014 at 7:22 pm

    Sounds like he's skipping en banc, which pretty much ensures a 12-month time limit on this story. My mind drifts to Thelma and Loiuse gunning their engine. "Let's get this over with!"

  • 167. DACiowan  |  June 25, 2014 at 3:02 pm

    it's a shame Rick Perry isn't likely to remind him of how Lawrence v. Texas turned out, given that Guvner Giant Glasses is waiting on the Good Ol' Boy Circuit to rule on his own marriage ban.

  • 168. brandall  |  June 25, 2014 at 3:04 pm

    Here's a NEW twist based on today's 10th Circuit ruling. "Boulder County Clerk to begin issuing same sex marriage licenses"…yes, COLORADO. Interesting chess move and one we have definitely not seen to date since this is the first Appeals Court ruling. This is bound to raise a bunch of new interesting questions and maneuvers.

  • 169. samg68  |  June 25, 2014 at 3:07 pm

    Someone needs to speak to their attorney…they seem a little confused.

  • 170. Bruno71  |  June 25, 2014 at 3:11 pm

    I don't think they're confused, they're just deciding to go ahead with what they feel is constitutionally correct after this ruling. If the Boulder clerk is beholden to a superior who thinks otherwise (I would guess the Colorado AG, but I'm not sure), then it could be a situation like we saw with Hanes in Pennsylvania.

  • 171. samg68  |  June 25, 2014 at 3:16 pm

    But the reason the clerk has given is;

    "“Because 10th Circuit decisions are binding in the State of Colorado, the precedent established by Kitchen v. Herbert is applicable to the same-sex marriage ban contained in the Colorado Constitution,” said a statement from the Clerk and Recorder’s Office."

    But obviously a stayed ruling is not binding on anyone.

  • 172. Bruno71  |  June 25, 2014 at 3:21 pm

    It's a grey area wherein the ruling is binding but not enforced. Many clerks as we've seen recently have chosen to interpret these rulings on their own and act accordingly. Most recently in Wisconsin, where there was no order issued initially.

  • 173. samg68  |  June 25, 2014 at 3:28 pm

    That was entirely different. The Wisconsin ban had been declared facially unconstitutional, and therefore was no longer in effect. It was up to the clerks to decide what to do about that. Only upon the imposition of the stay was the ban essentially put back in place.

    Here the court has clearly stayed any declaration regarding the constitutionality and so the bans remain.

  • 174. Bruno71  |  June 25, 2014 at 3:32 pm

    A stay doesn't make the ruling any less valid. It just puts enforcing it on hold. The county clerk is correct in interpreting that same-sex marriage bans are unconstitutional in the 10th Circuit. It's generally considered prudent to wait until the matter is settled at the higher court, but it can be viewed as a a matter of the clerk's interpretation of the law how she acts in the meantime.

  • 175. ebohlman  |  June 25, 2014 at 3:38 pm

    Wisconsin was special because of a state-law precedent saying that a declaratory judgment that a law is unconstitutional is immediately binding even in the absence of an injunction.

  • 176. brandall  |  June 25, 2014 at 3:13 pm

    I can't say if he has or hasn't spoken to counsel, but as I said, it's a chess move. As we saw in New Mexico, the clerks start interpreting in their own way and either get a movement going of other clerks or get stopped quickly. Stay tuned.

  • 177. Ragavendran  |  June 25, 2014 at 3:17 pm

    I'm in Boulder and I'm really taken aback by this news. The ruling has been stayed, so it is not in effect yet. Even though I sympathize with the clerk on her actions, it could be an irresponsible move that would later jeopardize these marriages.

  • 178. samg68  |  June 25, 2014 at 3:20 pm

    Indeed, seems these marriages are unlikely to be found legal given the ban is clearly still in place.

  • 179. brandall  |  June 25, 2014 at 3:24 pm

    Agreed, But, either the AG says stop or he doesn't say a thing and then someone needs to file a motion. Ragavendran, what is the current climate on ME in CO?

  • 180. Ragavendran  |  June 25, 2014 at 3:30 pm

    The AG is against ME. He vigorously defended the Colorado ban just last week in Adams County court (and took a severe beating from the judge during oral argument). The Governor desperately wants to sound neutral. I expect the AG to put a stop to this soon – he won't want other county clerks picking up on this.

  • 181. brandall  |  June 25, 2014 at 3:44 pm

    And….as usual…you are correct!

    Carolyn Tyler, spokeswoman for Colorado Attorney General John Suthers, said the any marriage licenses issued in Colorado will be invalid. Because the 10th Circuit decision was stayed, Colorado's ban against gay marriage remains in effect, she said.

    "It's not binding on Utah let alone on Colorado," Tyler said. "Boulder has a history of activism on this issue."

    She said in 1975, the Boulder County Clerk issued marriage licenses to a few gay couples.

    "They are no more valid today than they were in 1975," Tyler said.

  • 182. Bruno71  |  June 25, 2014 at 3:49 pm

    But can Suthers order her to not proceed? Or is it like it was with Van Hollen and the clerks in Wisconsin.

  • 183. ebohlman  |  June 25, 2014 at 3:56 pm

    Even if the decision weren't stayed, it still wouldn't be binding on CO state officials, only on Federal district judges who might rule on a CO case. I don't think it would even be binding on state judges (I think, but may be wrong, that SCOTUS rulings are the only ones that bind state courts when deciding Federal matters).

  • 184. Bruno71  |  June 25, 2014 at 3:58 pm

    It wouldn't be binding, but this county clerk could still interpret it as the proper way to apply the law. Then how the state deals with her is a matter for the state, and the state courts would not be bound by this ruling, no.

  • 185. scream4ever  |  June 25, 2014 at 5:41 pm

    Keep in mind too that she's likely anticipating a ruling any day now from the district judge in favor of equality with no stay. Given the 10th Circuit ruling, it's unlikely the Colorado Supreme Court will issue one either.

  • 186. ebohlman  |  June 25, 2014 at 3:47 pm

    The fact that a ruling from last week's case is pending makes the clerk's decision look even more reckless. It's one thing to stick your neck out like that when the process appears hopelessly stalled, quite another thing to do it when the issue appears close to resolution.

  • 187. Bruno71  |  June 25, 2014 at 3:52 pm

    I'd have to agree with you there. I'm not really a fan of this jumping the gun all the time. I'd rather have things be as smooth sailing as possible for couples who marry under these circumstances.

  • 188. brandall  |  June 25, 2014 at 3:49 pm

    As an aside. I am sorry to learn you are in Boulder as I was hoping you were near San Francisco and you could join a few of us at the Boies/Olsen appearance tonight! It would be a pleasure to meet you since I always enjoy your contributions. Someone did a thumbs-down on your response above, I re-upped you. I hope it was because they did not like your honest answer and was nothing personal.

  • 189. Ragavendran  |  June 25, 2014 at 3:53 pm

    No worries, brandall! I was in the bay area two weeks ago attending a conference at Stanford. I wish they had scheduled their visit at that time – bummer! Hopefully it is recorded and uploaded on YouTube or something. And I learnt long ago not to take down-votes personally or too seriously 🙂

  • 190. dingomanusa  |  June 25, 2014 at 3:30 pm

    Coming on the eve of the 45 anniversary of the Stonewall Riots, how appropriate! Pride baby, PRIDE!
    [youtube KEpqTIolLps&bpctr=1403737045 youtube]

  • 191. dingomanusa  |  June 25, 2014 at 3:32 pm

    The video was done for Pride at 40 (2009) BUT it is well worth watching!

  • 192. brandall  |  June 25, 2014 at 4:46 pm

    A new part of the puzzle from Boulder, CO.

    [Boulder County Clerk] Hall said however that the licenses would be valid and that the city’s attorneys would not have backed the Clerk’s Office “for a symbolic gesture.”

    So, the city attorney's appear to be willing to stand up to the CO AG. This forces the CO AG to take legal action if he wants to stop a possible stampede from other county clerks. But, as others commented earlier, this will be a state filing and probably very straight forward for the AG to obtain.

  • 193. Ragavendran  |  June 25, 2014 at 4:49 pm

    Sigh. Now what? I suppose the AG will move the Colorado Supreme Court for an emergency injunction to firmly tie up the county clerks' hands?

  • 194. brandall  |  June 25, 2014 at 4:55 pm

    And the CO Supreme Court could tell the AG he does not have standing! Oh, that would be so beautiful. And ironic and funny. And, not going to happen.

    Have to sign off to attend the Boies/Oslen appearance tonight. I'll take notes if there is no video.

  • 195. Bruno71  |  June 25, 2014 at 5:26 pm

    I guess that would be his move. Though that wasn't done in Wisconsin. The hierarchy involving issuance of marriage licenses from state to state has become an issue I never would have seen coming. I figured they were all set up like California.

  • 196. MichaelGrabow  |  June 25, 2014 at 3:06 pm

    The scrolling bar at the bottom of CNN just said that "it's not clear whether marriages can start immediately in Utah and Indiana."

    Unless something has changed that I haven't heard of…circuit courts ruling has been stayed, ruling in IN without stay, marriages have already taken place.

    How could a national news channel not be aware of this hours and hours after the fact?

  • 197. brandall  |  June 25, 2014 at 3:08 pm

    The answer to your question is they don't read the EoT blogs. 😉

  • 198. LK2013  |  June 25, 2014 at 4:00 pm

    Exactly! It's hard to keep up!

  • 199. Fledge01  |  June 25, 2014 at 6:04 pm

    I don't fully get why more clerks don't do what Boulder County is doing. They stay is only a stay upon the defendants in the case. Even when the stay their opinion as well as the injunction, it doesn't invalidate their opinion. It only says its not enforceable upon others. However, it is still the opinion found in the minds of those judges. You don't need a judge to make a ban unconstitutional. It has always been unconstitutional. Its just that now the judges have had a chance to voice their opinion and issue an injunction. Just because they stay the binding effect of those, doesn't change that the bans are unconstitutional.

    So what if any clerk within the 10th circuit decides now to issue licenses to same sex couples (as they have always legally been allowed to do under the US constitution, even before today's ruling). Who would challenge them. Somebody would have to sue them or prosecute them to stop those marriages. The clerks defense is they don't have to follow unconstitutional laws because they aren't really laws if they are unconstitutional. We know that no district judge in the 10th could now rule anything other than how the appeals court ruled today.

    The only reason clerks in the past have towed the line of tradition and their state constitutions is because a clerk has to be damn sure their state's ban is not actually law before they try to ignore it or else they might personally face criminal prosecution under their state's laws. Most clerk's aren't wiling to take that gamble and risk their career. Now today, clerks in the 10th circuit can be confident that they will not be charged since the clerks could make a defense in federal court, which would have to go through the 10th circuit court of appeals.

    The Boulder Clerk is not being defiant, they are doing what they feel is legally right

  • 200. Mike_Baltimore  |  June 25, 2014 at 8:33 pm

    One reason I stopped watching anything CNN years ago. The channel doesn't seem to get anything correct these days, or they get it correct, but very late.

    It is now especially worse, IMO, since they tried to become Faux News Lite in an attempt to gain audience share.

  • 201. BillinNO  |  June 25, 2014 at 5:28 pm

    I salute the defiance of the Boulder Clerk! Unjust Unconstitutional Laws, Tryanny! etc etc. Those people in Berlin didnt wait for the all-clear to begin knocking down the wall and reunifying their country. And I hope other clerks take note- make these bigots fight on a million fronts. It doesn't matter if it sticks; at the very least it is symbolic. Chaos is our friend now.

  • 202. dingomanusa  |  June 25, 2014 at 5:50 pm

    I'm 60 years old and have been waiting much of my entire adult life. So I too applaud the actions and defiance of the Boulder Clerks and all those who have stood up against the mainstream lgbtq activists who have said we need to "wait until the time was right" and/or follow societal norms. Change happens faster when progressive thinking people take action. Rules and laws are meant to be broken when they are wrong.

  • 203. BillinNO  |  June 25, 2014 at 5:57 pm

    The article brandall posted indicates that Longmont and Lafayette Counties intend to begin issuing licenses Friday!

  • 204. Bruno71  |  June 25, 2014 at 6:12 pm

    Longmont and Lafayette are both cities in Boulder County.

  • 205. Ragavendran  |  June 25, 2014 at 6:14 pm

    Another notable aspect of the majority opinion is that it did not discuss animus at all. Indeed, while the opinion, near the end, talks about the state's fear that an adverse ruling would be construed as branding all those who disagree as bigoted or intolerant, it remains mum on whether, in its opinion, Amendment 3 bears evidence of animus (according to the legal definition of the term). I found this notable because the animus issue became a heated part of the oral argument back in April. I guess it just wasn't necessary to address it under strict scrutiny analysis, and/or the majority didn't want to piss off Kelly even more! (But Kelly does briefly address it in his dissent, affirming the district court's finding that there was no animus.)

  • 206. David_Midvale_UT  |  June 25, 2014 at 7:39 pm

    Here in HATU—The Bass Ackwards State—religionists complain that they have been branded as intolerant and bigoted for having a religious objection to homosexuality. These individuals repeatedly have been corrected that the issue is their behavior with regard to the constitutional rights of their neighbors and emphatically not their religious belief. The issue is using a religious belief to justify secular laws that cause emotional pain and financial harm. No intelligent individual gives a flying rodent flatus about any one person or any specific group of people's religious beliefs so long as that individual or group upholds the fundamental protections of constitutional government. Utahns didn't do that. Religionist Utahns used their political power to impose their narrow-minded, not-universally-accepted religious beliefs on society as a whole. And they used their influence and money to do the same to the citizens in almost every state from Hawaii to Maine. Karma bites. Too flipping bad. . . R O F L

  • 207. SeattleRobin  |  June 25, 2014 at 8:05 pm

    Yeah, the lack of finding any animus stuck out to me as well. On the one hand, I think the bare desire to harm gays and lesbians is at the heart of these laws (though not necessarily in the heart of every individual who has supported them) and I want that recognized. On the other hand, not going there makes the decision less contentious. Especially to the bigots waiting at SCOTUS.

  • 208. JayJonson  |  June 26, 2014 at 7:13 am

    The lack of finding any animus is all the more striking because Judge Lucerno relied so much on Windsor, where animus is emphasized. But, like the judge in Kentucky, the majority here may also wanted to appear conciliatory, especially since they know that their ruling will not be popular in Utah and some ohter states in their circuit.

  • 209. F_Young  |  June 25, 2014 at 6:16 pm

    What do you guys think of the current Wikipedia map at:

    They changed the colors of Colorado, Kansas and Wyoming to show that they have "A judicial ruling against a state constitutional or statutory ban on same-sex marriage stayed pending appeal."

    Isn't that overstating the effect of today's 10th Circuit decision in Kitchen v Herbert? Shouldn't they wait until each state's District court issues its own decision based on Kitchen v Herbert?

  • 210. Bruno71  |  June 25, 2014 at 6:19 pm

    I don't think it's overstating it. Those bans are clearly unconstitutional under the 10th Circuit ruling, and there shouldn't be any further litigation if the politicians in those states act in a principled manner and implement it.

  • 211. BillinNO  |  June 25, 2014 at 8:09 pm

    Nope- not an overstatement. Undeniably the current is moving more swiftly than even a few months ago- look at these daring clerks in Colorado! Even Feldman's preliminary decisions in New Orleans today were favorable.

  • 212. Randolph_Finder  |  June 26, 2014 at 9:25 am

    If you want to chime in, please do. Trust me, the talk page for that image has gotten almost as deep into some of the decisions as EoT has.

  • 213. ebohlman  |  June 26, 2014 at 3:46 pm

    I do think it's an overstatement and that your analysis is correct, with one caveat: we learned a couple weeks ago that Wisconsin appears to have a state precedent establishing that a declaratory judgment that a law is unconstitutional is binding on state officials even in the absence of an injunction. If one of those three states has a similar precedent (and the Boulder County clerk's action hints that CO might), the decision would bind its officials as soon as, if not earlier than, the 10th issues its mandate.

    In the absence of such a state precedent, though, the 10th's decision will simply set precedent for future litigation. CO has a state case where a decision is expected imminently (and is expected to be favorable), and WY also has a state case (not as far along). AFAIK, KS has a (I think Federal) challenge that only involves tax-filing status, so it could take some time for equality to arrive there.

  • 214. MichaelGrabow  |  June 25, 2014 at 7:43 pm

    Fourt circuit email.

    This is the first sentence of an email from Mark Herring:

    Tomorrow will be exactly one year since the nation's high court struck down the federal ban on same-sex marriage – and now we're just days away from a ruling on marriage equality right here in Virginia.

    The part starting at "and now…" is in bold, it sounds like they know something we don't!

  • 215. BenG1980  |  June 25, 2014 at 7:51 pm

    Possibly — but it's certainly a fact that in some undefined number of days there will be a ruling. Only time will tell exactly when it will come and exactly what it will say.

  • 216. weaverbear  |  June 25, 2014 at 7:56 pm

    Fingers crossed that you're right, but I do suspect you are.

    Honestly I'm more concerned by the district court judge in Texas being reversed than in Virginia.

  • 217. Japrisot  |  June 26, 2014 at 9:33 am

    I was of the opinion that a ruling would probably come today, on the anniversary, but another commenter pointed out, I think correctly, that the 10th Circuit opinion may have delayed this since the clerks will now have to add citations and possibly language comparing their analysis to that of the sister court.

  • 218. __M  |  June 25, 2014 at 7:57 pm

    It's such a great day for the US!! ..From Europe, I send a huge CONGRATULATIONS to all of you, American borthers!!!

    Just one question please (and sorry if I sound like the pessimistic bloke, but it's just to double check)… I've just finished reading the Opinion by the 10th Circuit <a href="http://(” target=”_blank”> <a href="http://(” target=”_blank”>( and I have some doubts with the Order part (see page 64), which states as follow:

    " V
    In summary, we hold that under the Due Process and
    Equal Protection Clauses of the United States Constitution,
    those who wish to marry a person of the same sex are
    entitled to exercise the same fundamental right as is recognized
    for persons who wish to marry a person of the opposite sex, and
    that Amendment 3 and similar statutory enactments do not
    withstand constitutional scrutiny.
    We AFFIRM the judgment of the district court. "

    I'm concerned 'cause that fragment states that ONLY "those who wish to marry" (in Utah) can excercise that right, but it doesn't make a clear, explicit reference to those couples previously married in other states that seek recognition of their licences in Utah. Of course, the "out-of-state marriage recognition" topic was previously debated in other parts of the ruling, but anyway, after what happend with Judge Piazza in Arkansas -and personally not knowing much about your Judicial system- I think we have some resons to be concerned. We need to be really careful as the anti-equality folks will try and use every single omission to fight against or, at a minimum, delay equality.

    What do you think? Can there be any problems with that wording? Thanks a lot and, again, CONGRATULATIONS!!

  • 219. SeattleRobin  |  June 25, 2014 at 8:23 pm

    Hello, to Europe! It says that Amendment 3 and statutory enactments do not withstand constitutional scrutiny, and the non-recognition stuff is included in those. So it's fine. But you're right, it's good to look closely because every word or lack of words can have meaning.

  • 220. SeattleRobin  |  June 25, 2014 at 8:28 pm

    BTW, it just struck me that while there has been a lot of movement in Europe over the last several years, I never paid much attention to the source of advancements. Thinking about it now, it seems like most everything has come from national governments, not court cases. Have there been any big court cases in Europe similar to what we're experiencing over here?

  • 221. DACiowan  |  June 25, 2014 at 8:33 pm

    I know Germany has had a series of rulings requiring the government to expand more and more marriage rights to same-sex couples. Unfortunately Chancellor Merkel's government is still opposed to outright equality and the coalition in Parliament doesn't want to fall afoul of her party by forcing a vote in the Bundestag.

  • 222. JayJonson  |  June 26, 2014 at 6:55 am

    I don't think European national courts have mandated same-sex marriage, but they have played roles in extending rights to gay couples. Also, in Spain and France, for example, the laws that authorized marriage equality were challenged unsuccessfully in a constitutional courts. The European Court has not ruled that members of the European Union must enact marriage equality laws, but they have ruled that member nations must protect the rights and dignity of lgbt people.

  • 223. StraightDave  |  June 25, 2014 at 8:30 pm

    Not to worry, my friend. It's a fair question, but Utah's Amendment 3, which was struck down in its entirety, says:

    1) Marriage consists only of the legal union between a man and a woman.
    2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

    Section 1 is the so-called definitional aspect. With it gone, if a married couple arrives from another state, they're still married. UT has lost its ability to pretend otherwise. In addition, the "similar statutory enactments" will cover anything else that's in the same neighborhood.

  • 224. Mike_Baltimore  |  June 25, 2014 at 8:52 pm

    In other news:

    Maine's Senator Collins has now gone on the record for ME. Collins is the fourth member of the GOTP in the Senate to do so (and the other 3 are not up for re-election this November), meaning just one additional vote from the GOTP is needed (presuming the Dems are united) to get to the 60 vote level needed to break a filibuster.

    The next hurdle will be the House of Representatives (and the calendar).

  • 225. Mike_Baltimore  |  June 25, 2014 at 11:09 pm

    I should have included a link to an article about this:

    Apologies for not including it earlier.

  • 226. RCChicago  |  June 26, 2014 at 5:40 am

    I wonder how much of her stance is genuine and how much of it is political expediency? Her opponent is a former ACLU leader and staunch supporter. During the tough days of the equality fight in Maine, Collins was silent on the issue.

  • 227. Zack12  |  June 26, 2014 at 12:58 pm

    I imagine it's a bit of both.
    She was one of the only Republicans to vote for the repeal of DADT and to vote against the disguisting Federal Marriage Amendment.
    But as you said, she said nothing during the marriage equality fight in Maine unlike her opponent.
    I do think it's genuine but I also think she is a politicion and she like so many others didn't stick her neck out until it was safe to do so.
    I will also say this, it's not like many of the Democrats were much better until a few years ago but still, I would like to see her lose solely to get a Democrat in there.

  • 228. sfbob  |  June 26, 2014 at 7:09 am

    Interesting that Collins' change of position comes about after she has received the endorsement of the Human Rights Campaign.

  • 229. Mike_Baltimore  |  June 26, 2014 at 12:25 pm


    I have rather mixed feelings on this subject.

    On Tuesday, the Democratic Primary race for Governor of Maryland was between 3 people:
    – The current Lt. Governor, who has an excellent record and history of being pro-GLBT;
    – The current AG, who has an excellent history of being pro-GLBT (he is the one who issued the AG opinion before ME 'hit' MD that out of state ME couples were married if/when they moved to MD.)
    – A woman, who if elected, would have been the first female Governor of the state, and the first out homosexual Governor of the state.

    My problem was that the candidate who is now AG led a very dirty primary campaign, with many out and out lies in his campaign commercials and literature. I felt I had to make a choice between the current Lt. Gov. or the woman. Polling right up to primary election day showed the first two candidates in a tight race, with the current Lt. Gov. a bit ahead (the Lt. Gov. won by a large margin) otherwise I would have voted for the 3rd candidate (who came very close to defeating the current AG.)

    I had a wealth of choices, some better than others. I can wholeheartedly support the winner of the primary, and would have been able to wholeheartedly support Heather Mizeur. The eventual second place candidate? I would not have been able to campaign for him, but in the General Election, I would have voted for him over the GOTP candidate.

    I disagree with Collins on many issues, but that does not mean I always disagree with her. Vote for her? Almost certainly not (unless she had only one opponent who was someone like LePage). Support her on some issues? Yes (while probably holding my nose).

    At least she's now on the record as being for ME, and it will be difficult for her to weasel out of that position.

    And when an organization endorses someone, there almost always are weeks or even months of discussion and negotiation with the candidates before the endorsement. The HRC probably knew of (or forced her to issue) the statement endorsing ME on the day the endorsement was made public.

    Finally, did Collins make a change of position, or just make it clear what her position was? I'm generally an optimist, so I look at Collins statement more as a clarification than change of position.

  • 230. sfbob  |  June 26, 2014 at 2:01 pm

    II don't live in Maine but if I did I would certainly vote for Shenna Bellows in the coming election. Bellows formerly directed the Maine chapter of the ACLU and was part of the organization which got Maine's marriage equality ballot measure passed in Maine in 2012. With that sort of history I found it quite surprising that HRC didn't endorse her instead of Collins.
    I have no particular animus against Collins though to be honest, even though she does not strike me as even remotely the sort of ideological hard-liner we rightly despise here, she has a long history of caving to pressure from the powers that be in her party and her support of LGBT equality in the paste has always struck me as rather mealy-mouthed. If would not surprise me to learn that Collins in fact always supported marriage equality but since she had previously kept her views to herself it's hard to credit them as much as Bellows' views which are very much part of the public record.
    I don't know what the polling in Maine's upcoming senatorial election is but it would strike me that Collins has nothing to lose by tacking to the left and perhaps a significant amount to gain.

    In similar fashion I don't feel particularly inclined to join in hating on the HRC; on the other hand I can well understand the criticism. I was a member at one time but ceased supporting them long ago for reasons that others have articulated here and elsewhere. I just don't believe they have the sort of credibility our national organizations should and could have.

  • 231. KarlS  |  June 27, 2014 at 11:07 am

    Yeah, ME is OK in ME but ME is not OK in OK


    (for the nonce, anyway)

  • 232. davepCA  |  June 26, 2014 at 12:26 am

    Hi all, Just checking in with a bit of 'current events'. A few hours ago, I attended an event at the SF LGBT Center, where David Boies and Ted Olson spoke and answered questions from the audience. It was a really great experience. I am so very, very grateful to those guys and the brave plaintiffs and everyone else who fought Prop 8 and got us where we are today. I also got to meet commenter "brandall" and his husband at the event (hi guys!). I'll have to go into more detail about the event tomorrow since it's now after midnight and I'm frikken exhausted. What a day! See you guys tomorrow.

  • 233. Retired_Lawyer  |  June 26, 2014 at 6:06 am

    We will have to wait to see if the Utah defendants petition the Supreme Court at once or first seek en banc review by the 10th Circuit. An en banc review poses a risk to defendants. The panel was bound by 10th Circuit precedent holding that gays are not a protected class and thus entitled to heightened scrutiny of discriminatory treatment, regardless of whether a fundamental right (e.g., marriage) or some lesser right is involved. The 10th Circuit, sitting en banc, could change that, using the same kind of "connect the dots" approach to the Windsor case that the 9th Circuit took in the gay juror case, SmithKline Beecham v. Abbott Labs. The 10th Circuit precedent that the Court as a whole could overturn is, in my own opinion, especially odious. In Price-Cornelison v. Brooks, 524 F.3d 1103, 1105 (10th Cir. 2008) a law enforcement officer refused to enforce a protective order because the victim of domestic violence was a lesbian, who was declared to be not a member of a protected class such that heightened scrutiny of the officer's conduct would be warranted.

    The Utah Attorney General risks EXPANDING the bases for marriage equality to include equal protection(protected class) as well as substantive due process (fundamental right) if he asks for en banc. If he wishes to delay the case by asking for en banc treatment, he must take that risk.

  • 234. JayJonson  |  June 26, 2014 at 6:49 am

    Thanks for this clarification of the danger of en banc review.

  • 235. Terence  |  June 26, 2014 at 6:40 am

    Now – Missouri (at least, St Louis), where the mayor is defying the state ban on same – sex marrage, and issuing licences regardless.

  • 236. brandall  |  June 26, 2014 at 7:19 am

    So, they pulled a San Francisco, albeit much later in a vastly different social climate and legal wins. My husband and I (along with davepSF) listened to Boies/Olsen last night in SF. Boies stated, "the San Francisco marriages were what made me aware of the magnitude of the issue and is when the light bulb went off." Barring a court order that nullifies these marriages (and is tough on the newly married couples), each of these "breakouts" brings ME front and center in these cities and regional areas which personalizes the issue. A good thing.

    I do hope Boulder, St. Louis, et al are warning their SSM couples about the potential legal risks. In 1994 in SF, we could not marry during the Newsome marriages because my husband worked for the city. The handouts specifically told us to not marry because it could disrupt our city benefits under the State's Domestic Partnerships law. The handout was also very clear to everyone the marriages could be nullified.

  • 237. SeattleRobin  |  June 26, 2014 at 7:50 am

    Umm…either the reporter is extremely sloppy with getting quotes correct, or Carpenter is extremely misinformed about what SCOTUS has ruled:

    “For years I contemplated taking this action, but the the legal climate was never right to take action and take a stand,” said Carpenter. “However, that all changed with the United States Supreme Court decision to rule all citizens have the right to marry under the law.”

  • 238. brandall  |  June 26, 2014 at 7:57 am

    UPDATE: "The city says it will voluntarily stop issuing any more same-sex marriage licenses as it expects to defend the first four, in a challenge to the constitutional ban. City officials tell the St. Louis Post-Dispatch they will take the issue all the way to the U.S. Supreme Court if necessary."

    All the way to SCOTUS? Stand in line! Very late to the party and they didn't read the map. Actually, they won't be late to the [SCOTUS] party, the party will be over. But, again, it does raise awareness at the city, regional and state level.

  • 239. ebohlman  |  June 26, 2014 at 3:55 pm

    It appears that the purpose of this action was simply to get a celebration-ban challenge into the courts, as there's currently only a recognition-ban challenge (which won't be heard until late September).

  • 240. JayJonson  |  June 26, 2014 at 7:29 am

    Offtopic but interesting. Beginning in December Brits in civil unions can convert them to marriages. Here is a link.

  • 241. Terence  |  June 26, 2014 at 8:04 am

    Time for my partner and I to take the decision: to convert, or not to convert?

  • 242. brandall  |  June 26, 2014 at 7:35 am

    Darn, no Hobby Lobby SCOTUS ruling today. It will be on Monday.

  • 243. brandall  |  June 26, 2014 at 8:38 am

    Well, it is next to Califorinia and today is the 1st anniversary of the death of Prop 8, just a different Supreme Court:

    Mexican Supreme Court Strikes Down Baja California Marriage Equality Ban

  • 244. MichaelGrabow  |  June 26, 2014 at 8:49 am

    Wikipedia says the population of Baja is 3,337,543!

  • 245. MichaelGrabow  |  June 26, 2014 at 8:50 am

    The court also concludes the “reproductive function or perpetuation of the species” and “the formation of a family is not, in any way, the purpose of marriage.”

  • 246. Randolph_Finder  |  June 26, 2014 at 9:32 am

    From what I have read, The Mexican Supreme Court is considerably weaker than the US Supreme Court. I was told once that for Mexico to get ME in the entire country that there would have to be 5 cases in each of the states without ME for the court to rule on. I'd love to understand more.

  • 247. DACiowan  |  June 26, 2014 at 9:39 am

    Mexican precedent is convoluted: in order for this ruling to vacate the law in Baja California, five separate cases in the state must be decided the same way. On the Mexican marriage map at… each state with a ring is where the courts have ruled against the marriage bans, but no state is to five rulings yet.

    Mexico City passed marriage equality by the legislature while Quintana Roo (Cancun) had a gender-neutral marriage code like New Mexico to begin with, so the state government gave the green light.

    It's complicated.

  • 248. Randolph_Finder  |  June 26, 2014 at 11:39 am

    Thank you!

    Is there any way to have the map indicate how many of the five necessary rulings have been done?

  • 249. DACiowan  |  June 26, 2014 at 11:46 am

    Unfortunately, it doesn't seem like the Mexican media is as thorough as American media at noting when these rulings come down. However, when I've looked I've only found one or two for each state; Oaxaca (in the south) appears to be at three right now.

    I'm hoping that the Mexican Supreme Court or legislature comes up with a national solution; the current situation is quite messy.

  • 250. davepCA  |  June 26, 2014 at 12:03 pm

    To make it even messier, it has been reported that same sex couples who marry in Mexico City SHOULD have their marriages legally recognized everywhere in the country, according to the law, but this has not always proven to be the case in reality.

  • 251. Bruno71  |  June 26, 2014 at 5:54 pm

    Is it not possible for multiple couples to bring a merged case?

  • 252. DACiowan  |  June 27, 2014 at 11:47 am

    Unfortunately, the merged cases still count as one ruling it seems. The most recent Oaxaca case involved 39 couples petitioning jointly.

  • 253. Equality On TrialBoulder,&hellip  |  June 26, 2014 at 8:52 am

    […] the Tenth Circuit Court of Appeals’ decision yesterday in Kitchen v. Herbert. That decision invalidated Utah’s same-sex marriage ban. The Tenth Circuit has jurisdiction over Colorado, among several […]

  • 254. DoctorHeimlich  |  June 26, 2014 at 9:13 am

    Maybe I need to go on vacation more often. I got back from Yellowstone National Park andafter being out of contact for a few days, look what I discover!

  • 255. DoctorHeimlich  |  June 26, 2014 at 9:25 am

    The opinion is interesting. It's very detailed, rather like the recent Wisconsin ruling, but with a much more narrow focus. It avoids discussion of whether gays represent a suspect class, whether discrimination against them triggers scrutiny, or whether there's any rational basis for discriminating against them here. It decides exclusively on the basis of marriage as a fundamental right, thus triggering strict scrutiny no matter who is claiming the right.

    Lucero seemed far less restrained at the hearing. I wonder if he narrowed this opinion to win Holmes' full support? To attempt to win Kelly over (even though it didn't work)? To avoid having to discuss that Tenth Circuit case that was mentioned at the hearing, which the State maintained as precedent that gays are NOT a suspect class? Or maybe looking ahead to Justice Kennedy, who seems bound and determined to avoid defining any new class under the classical scrutiny framework?

  • 256. JayJonson  |  June 26, 2014 at 10:00 am

    I suspect that he (or he and Holmes) did not want to bring up the question of sexual orientation as a protected class, especially when he could reach strict scrutiny as a result of considering marriage a fundamental right. That is probably a smart move. It also obviates to need to find animus since all the proffered justifications that Utah offered were so laughably irrational. No doubt they had Kennedy in mind in every word they wrote.

  • 257. Randolph_Finder  |  June 26, 2014 at 9:34 am

    Definitely. 🙂

  • 258. Margo Schulter  |  June 28, 2014 at 1:49 am

    Sometimes justice at SCOTUS is slow and hesitant, but often it ultimately prevails, as with the long road from Naim v. Naim to Loving v. Virginia, the former being well called “The case that dare not speak its Naim.”

    Hicks v. Miranda may fairly be read exactly as the district courts and now the Tenth Circuit have read it: lower federal courts had better follow summary affirmances or dismissals of SCOTUS until either SCOTUS says that they are no longer binder, or “when doctrinal developments” indicate otherwise. It’s well known that all constitutional questions are in principle always open for SCOTUS itself to revisit.

    The evident point is that if Baker v. Nelson had been a decision after a full hearing, then we wouldn’t be having a discussion about whether or to what degree it still has binding force: there, the advice of SCOTUS for lower courts to follow Supreme Court precedent unless and until SCOTUS decides to overrule its own precedents would be rather obvious.

    Judge Ginsberg, in oral argument last year, outlined why Baker had lost force in terms of such doctrinal developments as the establishment of intermediate scrutiny for gender discrimination, as well as the RomerLawrenceWindsor line of precedents. So if the Hicks language about “doctrinal developments” could ever be relevant, it would likely be in these marriage cases.

    And one of the big messages in Lawrence, where Justice Scalia seems to have been prophetic, is that once an aesthetic distaste for how a loving couple expresses (or is imagined to express) its love in physical terms is no longer a valid basis for legislation, marriage bans seem to have little rational basis.

  • 259. EricKoszyk  |  June 28, 2014 at 6:15 am

    So the troll is back, under a new but similar name. PLEASE DON"T engage with him (don't even down vote him, he likes that). It's Saturday and he is yet again trying to take over this site, as he does on weekends.

    Instead please report every single post of his as trolling and being inappropriate. Also, please email the site managers and let them know that you want him banned immediately and you want all of his posts deleted.

    He has already referred to AIDS, "abnormal sexual proclivities" and gay "marriage". He's done!

    This is the ONLY way we can get rid of him and take back our site.

  • 260. dingomanusa  |  June 28, 2014 at 6:47 am

    Yeah I saw that comment on my post and reported it.

  • 261. Margo Schulter  |  June 28, 2014 at 10:21 pm

    davepCA, I would just add that, of course, you’re referring to the Second Circuit decision in Windsor, rather than the SCOTUS affirmance of that decision striking Section 3 of DOMA, which doesn’t itself address Baker.

    What I’d add is that there’s authority, for example in the Third Circuit, showing that the language about “doctrinal developments” in Miranda v. Hicks is very much directed to the lower federal courts, not only to SCOTUS itself (which can and does overrule its own precedents).

    It’s pretty much commonsense: Yes, a summary affirmance or dismissal is a real precedent, but a finding that there’s no “substantial federal question” is subject to review as a significant numbers of years or even decades transpire.

    By the point of Lawrence, the authority of Baker was in some question, but Windsor pretty clearly implied that state marriage bans were now “a substantial federal question.” The idea that “doctrinal developments” aren’t a concern for lower courts is simply an unwarranted conclusion.

    Of course, as was shown in various circuit decisions between Lawrence and Windsor, reasonable jurists could and did disagree about whether Baker still governed. Post-Windsor, however, there seems little doubt that the questions of state marriage bans as judged under the Due Process and Equal Protection Clauses are “substantial,” to say the least!

  • 262. Margo Schulter  |  June 28, 2014 at 10:22 pm

    Sorry, that should be Hicks v. Miranda.

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