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Seventh Circuit Court of Appeals orders Indiana to recognize one same-sex couple’s marriage

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The Seventh Circuit Court of Appeals has issued an order requiring Indiana to recognize the marriage of one same-sex couple involved in a challenge to the marriage equality ban. A terminally-ill woman’s legal marriage to her spouse will now be recognized by the state pending the outcome of the appeal.

The couple had previously gotten an order from a district court judge requiring recognition, but after the district court struck down the ban entirely, the state sought and received a stay in the Seventh Circuit. That stay didn’t carve out any exceptions, so the couple’s marriage was included until yesterday’s order.

Lambda Legal has more:

The Seventh Circuit issued its order after Lambda Legal filed an emergency motion asking the appeals court to lift—as to Niki and Amy—the stay granted by that court last Friday, because Niki is battling Stage IV ovarian cancer, and the family needs the dignity, comfort, and protections of marriage as they fight to be together.

Paul D. Castillo, Staff Attorney for Lambda Legal, said:

It is time for the State of Indiana to leave Niki and Amy in peace and not subject them and their marriage to any more stress and uncertainty as this case proceeds. We’re thrilled that the court ruled in favor of this family as Niki battles stage four ovarian cancer. We will continue to fight until no family in Indiana needs to worry about their marriage being stripped away from them and all Hoosiers have the freedom to marry.

The Seventh Circuit has fast-tracked the briefing schedule in the case: the opening brief is due July 15, and briefing will be completed by August 5.

Thanks to Kathleen Perrin for these filings


  • 1. SWB1987  |  July 2, 2014 at 8:31 am

    Do you think they will appeal to SCOTUS? I'm kind of surprised by this ruling.

  • 2. ebohlman  |  July 2, 2014 at 1:35 pm

    Zoeller will look even more like an absolute and complete asshole than he already does if he tries to; the ruling just restores the status quo since IN has been subject to an emergency injunction requiring them to recognize Quasney and Sandler's marriage for quite some time now.

  • 3. SWB1987  |  July 2, 2014 at 8:43 am

    Also are we expecting the Bishop case to have it's ruling announced today?

  • 4. DoctorHeimlich  |  July 2, 2014 at 8:50 am

    Not necessarily. That case is a bit more complex than the Utah case. It has significant questions about standing (the Tenth Circuit has heard the case once before, told the plaintiffs they'd sued the wrong defendants, and NOW seems to be considering that that instruction might have been incorrect), and is also specifically seeking an injunction against DOMA section 2 (which permits states NOT to recognize out-of-state marriages, if they choose).

    I don't expect a lofty opinion about dignity and equality in this case. It's going to be a slog through legal jargon.

  • 5. Roulette00  |  July 2, 2014 at 9:13 am

    I can't imagine how heart-breaking and annoying that ten-year marathon must be, to be told you sued the wrong people, then to be told that decision was wrong. What are the chances that the Tenth will send it back to the beginning again, versus simply ruling on the merits? They've already upheld Kitchen; it isn't as if the outcome would change if the plaintiffs sue a new party.

  • 6. debater7474  |  July 2, 2014 at 9:49 am

    It wouldn't really matter. Regardless of whether the case is dismissed on standing, the ruling in Kitchen v. Herbert constitutes a binding decision on the merits of Oklahoma's marriage ban.

  • 7. Roulette00  |  July 2, 2014 at 11:11 am

    Yes, the merits of the case are not in question. However, can the Tenth issue an injunction on parties not named in the suit?

  • 8. DocZenobia  |  July 2, 2014 at 5:50 pm

    Except for ten years worth of legal bills, that is. The Kitchen plaintiffs can recover legal fees from Utah if they win.

  • 9. SWB1987  |  July 2, 2014 at 9:42 am

    The 10th circuit had already heard this case before? Well I'm just hoping we can get a ruling, hopefully favorable and not one based on standing, in the not too distant future along with the Virginia case. Then on to the 6th circuit which I am kind of worried about.

  • 10. haydenarwen  |  July 3, 2014 at 5:47 am

    don't worry about the 6th at least the MI case atty Ken Mogill and co Counsel Nessel and Staynar are probably if not the best… one of the Best Law firms in MI. I know another atty with the firm and we talked ad nasueam about this case…… we both were pleased with trial and the ruling from Hon Friedman ( solid and seamless)….. Besides Olson/ Boies being top choice to return back to SCOTUS…. if any other atty went to SCOTUS… I would want this firm to be there. One last note our atty gen Schuette seems to mettle in everything and I feel good cause he success rate has been relatively poor, but recently he notched a few wins…. he seems to due for another loss

  • 11. Ragavendran  |  July 2, 2014 at 6:25 pm

    All judges seemed convinced at oral argument that the Plaintiffs seeking the right to marry in Oklahoma had standing to sue the court clerk Smith. There is no standing issue there. So we will almost surely have a ruling on the merits there. The standing issue arises only for the Plaintiffs that challenge the recognition provision of the ban. That part is what led to a lengthy discussion where Kelly and Holmes agreed that there was no standing but Lucero was trying to figure out a way to grant standing.

  • 12. brandall  |  July 2, 2014 at 9:15 am

    The new, unique ME twist in Missouri is there is only one named defendant in the ACLU suit filed last week. That is the Jackson County clerk which include Kansas City. He announced Monday, he will not defend the suit. "The county won’t spend any taxpayer money defending that lawsuit".

  • 13. RCChicago  |  July 2, 2014 at 9:52 am

    Here's a link to local coverage:

  • 14. ebohlman  |  July 2, 2014 at 7:46 pm

    I have to assume that this is similar to the now moot Darby v. Orr, an Illinois state case filed against the Cook County Clerk in full knowledge that he wouldn't defend it (Clerk David Orr was one of the first Illinois officials to endorse marriage equality back in the 90s) and Lee v. Orr, a Federal case requiring Orr to begin issuing licenses ahead of the June 1 effective date of the equality statute.

  • 15. MichaelGrabow  |  July 2, 2014 at 10:22 am

    The ND attorney general has filed a motion to dismiss the suit filed in May.

  • 16. RnL2008  |  July 2, 2014 at 10:30 am

    So according to the ND AG, if North Dakota wanted to state that marriage was just between a white man and a white woman, the Constitution of North Dakota would allow it, right?

    From the article:
    "Nothing in the United States Constitution prevents the people of North Dakota from defining marriage as the legal union between a man and a woman," Bahr wrote in his 50-page response.

    Except there are those pesky amendments like Due Process and Equal Protection!!

  • 17. sfbob  |  July 2, 2014 at 10:55 am

    Republicans tend to focus on the Tenth Amendment while ignoring the Fifth and the Fourteenth.

  • 18. RnL2008  |  July 2, 2014 at 10:58 am

    Funny how they ONLY want to follow those Amendments that suit their needs!!!

  • 19. DACiowan  |  July 2, 2014 at 10:58 am

    "The Founding Fathers didn't include same-sex marriage so why should we?"

    Never mind that the Constitution is such a powerful document (politically and metaphorically) due to its remarkable adaptability.

  • 20. StraightDave  |  July 2, 2014 at 11:06 am

    "The Founding Fathers didn't include same-sex marriage so why should we?"

    jeezus-H-Krist. Cavemen couldn't read, either, so why should we? Let's just see how far back in the past we can stay stuck, why don't we!
    I smell another annoyed judge in his near future.

  • 21. Zack12  |  July 2, 2014 at 11:21 am

    The Founding Fathers didn't think women should vote and that colored people only existed to serve as slaves.
    I wonder if they want to hold that up as a positive as well?

  • 22. brandall  |  July 2, 2014 at 11:27 am

    The sad part is there are still a few folks out there who would be perfectly fine with this. And, they occaisionally even get press coverage on their viewpoints.

  • 23. Corey_from_MD  |  July 2, 2014 at 1:11 pm

    "colored" ?#!?##

  • 24. ebohlman  |  July 2, 2014 at 1:24 pm

    People actually talked and thought in those terms back then.

  • 25. Retired_Lawyer  |  July 2, 2014 at 3:53 pm

    What do you think the "CP" in "NAACP" stands for?

  • 26. Corey_from_MD  |  July 2, 2014 at 4:32 pm

    No sh*t, sherlock. No black person goes around today using that term (unless in jest, maybe) but the "CP" remains for historical reasons only. @ebohlman gave a good explanation above and leave it there.

  • 27. SeattleRobin  |  July 2, 2014 at 5:18 pm

    Actually, the little old lady who lived in the house next to mine at my previous residence referred to herself as "colored". She wasn't jesting, it's just that was the word she was accustomed to using from her era and she obviously hadn't felt any need to change. It's difficult for people to remember now, but it used to be that calling African-Americans "black" was considered offensive.

    It's similar to what our community has done with "queer". There are plenty of older gay people who would never use it in a positive manner. But young people have grown up without the intense negativity once associated with it.

  • 28. Mike_Baltimore  |  July 2, 2014 at 8:00 pm

    N.A.A.C.P. ring a bell? (National Association for the Advancement of Colored People)

    It's actually headquartered in Maryland (West Baltimore to be a bit more precise).

  • 29. Corey_from_MD  |  July 2, 2014 at 8:29 pm

    Once again, @ebohlman gave context so enough said already…

  • 30. Steve  |  July 2, 2014 at 11:45 am

    And the Second

  • 31. Rik_SD  |  July 2, 2014 at 12:09 pm

    you beat me to it 🙂

  • 32. Eric  |  July 2, 2014 at 1:12 pm

    They also ignore the Ninth Amendment.

  • 33. ebohlman  |  July 2, 2014 at 1:25 pm

    They obviously don't read the Constitution very closely, since they insist that only specifically enumerated rights exist and yet it's the Fifth that explicitly enumerates the right to property.

  • 34. RCChicago  |  July 3, 2014 at 7:13 am

    This a la carte approach to reading the Constitution is also how they read the Bible.

  • 35. Steve  |  July 3, 2014 at 7:57 am

    They read it like they read the Bible. Pick and choose what they like.

  • 36. Bruno71  |  July 2, 2014 at 10:49 am

    This seems like a good sign for a future 7th ruling in our favor, no?

  • 37. ragefirewolf  |  July 2, 2014 at 11:07 am

    I hate that there is a dumb typo on the order…stuff like that makes me wince >.<

  • 38. Retired_Lawyer  |  July 2, 2014 at 11:16 am

    The special order from the 7th Circuit requiring recognition of the marriage of Amy Sandler and Nikole Quasney, while the appeals process continues, should reassure everyone that the Judges have hearts, and have taken the needs of a terminally ill litigant into account. There being no recorded dissent, the decision must have been joined by Judge Richard Posner, a member of the panel, and a well known conservative.

  • 39. Thomas921988  |  July 2, 2014 at 12:08 pm

    I found this entry on Judge Posner's blog:

  • 40. Mike_Baltimore  |  July 2, 2014 at 12:47 pm

    This piece was apparently written in early to mid May, 2012 based on the dates of the comments. I wonder if, and by how much Posner's position has changed in the two years since.

    I would be surprised if it changed much, but I'd also be surprised if his general anti-homosexual attitude hardened or shifted even 'further anti-homosexual'.

    Last I heard, Posner is not a great fan of the Tea Party, but he also is very conservative in the 'traditional' Republican spectrum of political beliefs.

    Also, I notice his complaints about instituting laws against homosexuals is future tense, but he really says nothing about the anti-homosexual laws that have already been instituted.

  • 41. Retired_Lawyer  |  July 2, 2014 at 2:00 pm

    I very much enjoyed reading Judge Posner's 2012 musings. Each time he mentioned the word "innate" I mentally substituted "immutable," and was pleased that he volunteered the comparison of Loving v. Virginia. If his name is drawn for the merits panel, he might very well be amenable to an equal protection-heightened scrutiny for a protected class approach.

  • 42. jdw_karasu  |  July 2, 2014 at 11:19 am

    Do we know if the three judges on the order are the three who will be hearing the full case?

    Posner (RR)
    Williams (BC)
    Hamilton (BO)

    If so, we couldn't have drawn a better panel from this 7-3 GOP Circuit. Two Dems, and Posner is probably the GOP person we would want on the panel. If Posner were to join the other two in a 3-0 ruling for the Good Guys, it's likely that:

    (i) he would shake out some GOP votes to our side if it went en banc

    (ii) pretty much the last piece of the lower court puzzle that would ease Kennedy's mind that the time is now for the Loving vs VA moment

    So… here's pulling for these 3 to be the panel for full case.

  • 43. ebohlman  |  July 2, 2014 at 12:22 pm

    That's just this month's motions panel; each circuit usually designates a three-judge panel who are responsible for dealing with requests for initial appeals, requests for interlocutory appeals, stays and the like for a certain time. The actual three-judge panels that hear appeals are quasi-randomly assigned: the assignment algorithm usually tries to avoid giving any one possible panel a disproportionate share of cases and takes into account the reduced caseload of senior judges. So we won't know the identity of the hearing panel until briefing is complete at the earliest.

  • 44. jdw_karasu  |  July 2, 2014 at 3:11 pm

    Thanks for the info, ehohlman!

  • 45. brandall  |  July 2, 2014 at 11:24 am

    The Pareto case in Florida case is in oral arguments today. We've won 18 in a row now, yet the shouting to the top of the rafters continues as though Florida was the first case ever heard on the topic. From the head of the Florida Democratic League:

    "If Judge Zabel is competent to understand the constitution, she will throw out the plaintiff's challenge. She will realize this lawsuit is constitutionally offensive and it seeks to have her violate the constitution from which she derives her authority, and which she swore to uphold when she took her oath of office."

    "We are prepared to fight judicial tyranny and to defend and uphold the Florida Constitution and the voter rights of Florida citizens"

    Really? Give me a break.

  • 46. Bruno71  |  July 2, 2014 at 11:28 am

    This is less a declaration of fact, or even an opinion, than it is an attempt to browbeat a judge into submission.

  • 47. StraightDave  |  July 2, 2014 at 11:49 am

    Well then it's a pretty pathetic attempt. The hyperbole is so laughable that I can't see very many brows feeling very much beaten by it.
    I always expect some kind of crazy shit out of FL, but if this is their best shot, I'm not too worried. Sounds like panic setting in.

  • 48. ebohlman  |  July 2, 2014 at 12:25 pm

    That statement is purely for the consumption of potential donors.

  • 49. sfbob  |  July 2, 2014 at 1:01 pm

    I don't believe judges take very kindly to such tactics.

  • 50. davepCA  |  July 2, 2014 at 11:44 am

    Aah, insulting the judge from a press podium right before you walk into the court room. What a great way to start off your case. Pfft.

  • 51. Steve  |  July 2, 2014 at 11:44 am

    That is not an argument of serious people

  • 52. davepCA  |  July 2, 2014 at 11:48 am

    hee hee. I see what you did there : )

  • 53. brandall  |  July 2, 2014 at 12:00 pm

    Perfect. Sorry we can't award multiple thumbs-up.

  • 54. Steve  |  July 2, 2014 at 3:01 pm

    That phrase should be standard reply to most anti-gay arguments from now on.

  • 55. brandall  |  July 2, 2014 at 1:37 pm

    LIVE video of the Florida oral arguments right now!

    Plaintiffs just starting. It is 1:40 PM PDT.

    1:45 PM Quick review of Baker no longer being the law of the land in light of Lawrence and Windsor.

    1:48 PM [this is a case in state court] Review of Florida's same sex adoptions and findings that the Florida Supreme Court found SM couples have a right to adoption. This constitutes a family and the FL constitution demands they be treated as such.

    He then goes on to tie in back to Loving. Under the FL law, they can have children, they they are 2nd class families.

    The votes to establish the law [ban] imposes a 2nd class citizenship.

    Judge: Citing Williams vs. Illinois – affirms that the votes of the people cannot withstand what is in the constitution [she sounded very sympathetic in her statement]

    Plaintiffs attorney read the 40th anniversary Loving letter in closing.

    1:55 PM Judge asks for briefs to be reviewed. First up is the Attorney for Miami-Dade.

    Judge brings up the "economic impact" in the brief. Specifically asks about the economic impact of tourism.

    SSM will bring in millions of dollars and 2,600 new jobs. But, it is not just money we care about. He then goes into an out-of-state couple who were tourists in Florida when one of them had an aneurism and died in the hospital, but the hospital would not honor their relationship. [I wish there was a shot of the judge at this point]

    Judge asks about legitimacy of enforcement of the law as it applies to state employee's.

    Response is the position this law puts SS couples into and the legitimacy of the government is hurt.

    2:01 PM Matt Staver with Liberty Counsel

    He states summary judgement cannot be issued at this time because there is nothing that passes as rules of evidence by the Plaintiffs. Questions whether the plaintiffs live in Florida, whether they applied for a license, and have not established rational basis.

    Discusses 2005 cases that were dismissed in Florida due to Baker. Windsor was about Federalism and not about states rights to define marriage. [long elaboration about the usual POV that Windsor does not apply and Baker was never implicated]

    Judge: What about the flood of cases which came as a result of Windsor

    Response is there are over 50 cases that did not go in the Plaintiffs favor prior to Windsor. After Windsor there are all of these cases that have come down and they has all misread Windsor. Windsor was not a case about SSM. What does control is Baker vs. Nelson.

    Judge asks if there is a question about standing? Reply is again there are no verified submissions. [sounds like he wants to have a trial]. Mentions the 2012 Regerus study which shows there is a significant difference in children raised in SS and non-SS families and there is no reply from the plaintiffs

    Judge: Does that study include single parents?

    It does and there are other studies that backup the Regerus 2012 study. Optimal environment is the opposite sex marriages and this is what the state was doing, there is not animus.

    Judge: What about heightened scrutiny?

    Response in State of FL DMT case on page 342, in the adoption case, rational basis applied. DMT involved a fundamental right to parenting via a birth mother. Fundamental right that was clearly argued, but a rational bases was applied [longer statements]

    Loving was a case about the injection of race into marriage and there is no constitutional enumeration of SSM, not even in the Greek era where there was same sex activity [I'm just typing what he is saying]

    Judge: What about a couple that is past their time to procreate?

    This does not change the policy position and the public good.

    Back and forth with the judge about the plaintiffs agreeing procreation is part of marriage. Moves on to stating that polygamy now falls under this same policy as SSM and Scandinavia is now in their 14th of experimenting with polygamy [OK, this is one I have not heard introduced in any SSM cases to date].

    1:39 PM Judge asks if there is anyone else and gives 5 minutes

    Next is the Christian [something] Coalition and wants to intervene.

    Judge rebukes him this case has been going since January.

    CC represents there can be no summary judgement. This is only June and the AG has only been involved for 2 weeks. There is lots in information that needs to be gathered and reviewed.

    Next is Mr. Cohen for the plaintiffs. He states there are 13 filings sent in on time in support of the plaintiff position [this is a pushback for the CC's statement they and the AG need more time]

    Judge says she will take this under advisement and adjourns.

  • 56. brandall  |  July 2, 2014 at 2:48 pm

    And thus ends my first (and perhaps last) attempt at live update blogging. I wish all of these hearings were televised. The spoken words have more impact than reading them in a briefing, ruling or in the news outlets.

  • 57. Zack12  |  July 2, 2014 at 3:03 pm

    You did a good job! Congrats!

  • 58. RnL2008  |  July 2, 2014 at 3:21 pm

    Nice job………thanks for the info!!!

  • 59. FilbertB  |  July 2, 2014 at 6:18 pm

    Thank you, Brandall – I appreciate it! You did a great job. Very helpful.

  • 60. RCChicago  |  July 3, 2014 at 7:19 am

    This group is one of the ones that tried to intervene in the case. Interesting name as it is not affiliated in any way with the political party.

  • 61. debater7474  |  July 2, 2014 at 11:45 am

    I'm hoping we get an unfavorable ruling out of the fourth circuit soon, which would create a circuit split that forces Supreme Court review. If we don't get a split, then the Supreme Court could simply dodge the issue until their October Term 2015, which could push a decision all the way back to June of 2016.

  • 62. MichaelGrabow  |  July 2, 2014 at 11:47 am

    What a ridiculous wish.

  • 63. debater7474  |  July 2, 2014 at 12:23 pm

    It's only ridiculous if you don't care about A) timing and B) the real human lives that marriage bans impact. Waiting for another circuit's cert petition most likely pushes us back into OT Term 2015, which pushes the ruling from June 2015 to June 2016. Justice delayed is justice denied.

  • 64. ebohlman  |  July 2, 2014 at 1:30 pm

    But see my point in my other comment that granting cert immediately puts a fast-moving process on hold. Either way, some people are going to end up having to wait.

  • 65. DACiowan  |  July 2, 2014 at 11:56 am

    I have to disagree. My hope is that we keep racking up the circuit wins, somehow we get the Good Ol' Boy Circuit (5th) on our side, and SCOTUS doesn't grant cert on anybody. That way we get the circuits filled in rather quickly, and don't run the risk of Kennedy getting swayed over to Cardinal Scalia and company on SCOTUS that states can decide these marriage laws.

  • 66. debater7474  |  July 2, 2014 at 12:27 pm

    Hoping that the fifth circuit rules in favor of marriage equality is like hoping that tomorrow you will sprout wings and turn into a bird-human hybrid. It's theoretically possible but almost certainly not going to happen. Thus, a circuit split is inevitable: the only question is whether we get that sooner or later.

  • 67. ebohlman  |  July 2, 2014 at 12:34 pm

    I don't think there's a serious chance of Kennedy defecting, but I do like the idea of building up as much case law as possible before the final decision. Marriage equality is just one, albeit extremely important, aspect of legal GLBT equality and it will be helpful to have a lot of case law that can apply to aspects beyond marriage.

    The other problem is that once the SCOTUS grants cert, everything grinds to a halt until they rule; all lower courts are going to stay their proceedings. As a result, waiting till the 2015-16 term for the SCOTUS to grant cert could very well result in equality coming sooner to a large proportion of the population, with a June 2016 ruling being a "cleanup" decision that only affects a small number of holdout states (which are likely to be blood-red states, so having the decision in an election year is unlikely to affect election results much).

  • 68. Zack12  |  July 2, 2014 at 3:04 pm

    On the issue of marriage equality and capital punishment, Kennedy has never given a crap what Scalia thinks and he isn't going to change now.

  • 69. Rik_SD  |  July 2, 2014 at 12:16 pm

    Yeah I have to disagree with you as well. We are likely to get a couple unfavorable rulings in the near future anyways…. why wish for an adverse ruling on one that is highly likely to go our way? As has been mentioned here numerous times, there is already a split even if it precedes Winsor. I don't really hate the idea of them denying cert to the first couple of good ones and letting large swaths of the country come to terms before a sweeping ruling in another year or so after.

  • 70. debater7474  |  July 2, 2014 at 12:24 pm

    It's not that they'll deny cert, they'll just hold over the cert petitions until OT Term 2015, which would maintain the status quo.

  • 71. Rik_SD  |  July 2, 2014 at 12:51 pm

    That would suck then because the stays would still be in place right? I want them to deny cert so that the circuits can file their mandates

  • 72. DaveM_OH  |  July 2, 2014 at 12:54 pm

    SCOTUS won't hold a cert petition from one Term to the next. Now, would they hold a petition past MLK day (which is really the threshold for consideration during that Term), maybe. But I doubt it.

    My prediction:
    We have Kitchen. Kitchen's cert petition, reply, and rebuttal will be ripe by early November – or earlier, if the cert petition is filed earlier. (StraightDave's comment below that it will be in their inbox by the Long Conference is not correct – 90 days for filing the petition, plus 30 for the response, and 10 more for the rebuttal takes us to November.)
    By the time Kitchen is ripe, we will have decisions in Bishop and Bostic, with hearings held in the 9th (x3), 7th, 6th (x4), and probably 5th, and a very slim chance of a decision out of one or more of the cases in the 6th. It's also possible that Bishop or Bostic petitions might be filed by then, but not ripe yet.

    SCOTUS could sit on Kitchen until one or more of the other petitions is also ripe, and then pick and choose – but of the 3, Kitchen has the cleanest procedural history, UT's failure to seek a stay notwithstanding. Oral arguments will be scheduled for March 2015, and a decision will come down on the last day of term, June 29.

    Still, I don't see a way out for the Court now to avoid taking one of those three before the calendar fills up – because they'd have to hold over as undecided the cert petitions from the other Circuits between terms, and as I said above, that doesn't happen.

  • 73. StraightDave  |  July 2, 2014 at 12:24 pm

    My take is that SCOTUS can't realistically avoid either granting or denying cert on 1 or more cases by the end of 2014. Kitchen is as good as any to take, and it will be sitting in their inbox for the first conference in Oct. If that's what they do, it will mean they've signed up for the Superbowl next June.

    If they pass on Kitchen, I'll take it as a signal they'll do the same with all the positive rulings in 4 or 5 circuits. By the time they have to overturn the 5th circuit in 2016, it will be a complete anticlimax for the country. We'll be busy with the election and few people will care anymore – they can see it coming now. It also buys more time for SCOTUS so they don't feel as much heat. This scenario means the last states will fall in 2 years, but the first circuits will fall late this year………… Otherwise, it's go all-in next June.

    I can't see Kennedy swaying anywhere now, not after his "disclaimer of immense proportion".

  • 74. Rik_SD  |  July 2, 2014 at 1:36 pm

    Hey Dave I missed the disclaimer of immense proportion reference. Can you enlighten me? Thanks in advance!

  • 75. Roulette00  |  July 2, 2014 at 1:58 pm

    I believe he means Kennedy's language in Windsor, words to the effect of "this Court has never denied that the States have the power to regulate marriage…" (here comes the disclaimer) "…subject to certain constitutional guarantees."

  • 76. Rik_SD  |  July 2, 2014 at 2:07 pm

    Thank you!

  • 77. StraightDave  |  July 2, 2014 at 5:37 pm

    Exactly right, and my quote was from Judge Kern in Bishop (OK), who was referring to Kennedy's statement above citing Loving, as his example to explain why OK didn't have unlimited powers in the realm of marriage.

    Kern said, "A citation to Loving is a disclaimer of enormous proportion."
    In other words, case closed.

  • 78. tkinsc3  |  July 3, 2014 at 3:53 pm

    Kern may have said that, but Kennedy didn't. In fact, Kennedy's original statement was really mentioned only in passing ("of course"), lest people think that his articulation of the state's primacy in matters of marriage and domestic relations was meant to overrule Loving.

  • 79. Silvershrimp0  |  July 2, 2014 at 1:56 pm

    There's also the possibility that they'll take a case to get it out of the way earlier to avoid dealing with it during an election year.

  • 80. sfbob  |  July 2, 2014 at 2:03 pm

    Conceivable I suppose that they could do the opposite as an attempt to influence the 2016. I don't think that would be a wise move since a ruling in favor of nationwide marriage equality isn't likely to have much influence on the election while a ruling that maintains the patchwork of marriage laws would probably end up influencing the election in favor of the Democrats. I doubt the current conservative majority wants the latter. Surely they must understand which way the tide is turning.

  • 81. Rik_SD  |  July 2, 2014 at 2:08 pm

    I doubt they have as much interest in election year timing as do elected representatives

  • 82. sfbob  |  July 2, 2014 at 2:20 pm

    In theory justices, who are appointed for life, shouldn't care about the outcome of elections. I wonder sometimes if that's really true. They may not care so much about specific candidates but I doubt that they're oblivious as the effect of who's in control of the executive branch's agenda, and most certainly who is in control of future appointments to the federal bench. We'd like to think the justices aren't politicians and don't play politics but I don't think that's a realistic belief.

  • 83. Mike_Baltimore  |  July 2, 2014 at 3:59 pm

    Proof of the opposite is the number of justices who announce retirement effective the year prior to an election (especially when it is becoming apparent the 'opposite party' will win) vs. those who announce retirement effective in an election year.

  • 84. JayJonson  |  July 2, 2014 at 4:11 pm

    A great example is Justice O'Connor. She retired when she did so that George W. Bush could appoint her successor (Alito). And then she had the nerve to complain about what a doofus he is when he provided the fifth vote for United Citizens and other rulings she doesn't like.

  • 85. DoctorHeimlich  |  July 2, 2014 at 4:18 pm

    Actually, O'Connor retired because her husband was suffering from a very serious case of Alzheimer's disease, and she decided she wanted to care for him.

    In the book "The Nine: Inside the Secret World of the Supreme Court," Jeffrey Toobin asserts that even at the time, she'd come to disapprove of Bush as a president. Further, he writes that the death of Chief Justice Rehnquist, so soon after she announced her resignation, left her even more conflicted about her decision.

  • 86. JayJonson  |  July 3, 2014 at 6:41 am

    Yes, she wanted to care for her husband. But she also said that she felt obligated to retire when a Republican could replace her since she was appointed by Reagan. She became even more conflicted when she realized what an extremist Alito was. As though there was any chance that Bush would appoint a moderate. I don't think she was a very good justice, but she was better than Alito. What irks me is her having the temerity of complaining about Alito when she made his appointment possible.

  • 87. Ragavendran  |  July 2, 2014 at 6:44 pm

    I said this before under another post, but I repeat as it seems relevant here. I think that as long as circuits keep ruling in favor of ME, most of the liberal justices will likely vote against cert, preferring to let positive ME rulings percolate circuit by circuit, whereas most of the conservative justices will likely vote to grant cert, preferring to "nip it in the bud". Since it only takes four to grant cert, if all four conservatives unite to grant cert this Fall, we'll have a ME ruling next year! (Note that I'm leaving Kennedy out of this discussion – I can't predict how he might vote on cert.)

    On the other hand, as soon as a circuit rules against ME, there will be a post-Windsor circuit split and it is all but certain that cert will be granted.

  • 88. Japrisot  |  July 2, 2014 at 6:46 pm

    That is complete speculation. We do not know what any of the justices discuss during conference. It is just as plausible that Kagan, Ginsburg, Breyer, and Sotomayor believe they can get Kennedy's vote and will want to establish a uniform rule as soon as possible. It is also just as plausible that Alito, Roberts, Thomas, and Scalia will vote against cert because they too suspect that Kennedy is on board with the liberals and will want to delay a national result for as long as possible.

  • 89. Bruno71  |  July 2, 2014 at 7:08 pm

    It may also be speculative that Kennedy is the swing vote. He may be just as on board with a marriage equality ruling as the others.

  • 90. Japrisot  |  July 2, 2014 at 7:48 pm

    Exactly. AND for that matter, Roberts did not sign onto the substantive portion of the Windsor dissent, only that section that dealt with standing. We really don't know where he stands on DPC or EPC, which makes this whole exercise entirely speculative.

  • 91. debater7474  |  July 2, 2014 at 7:51 pm

    Sorry but wrong. Roberts wrote his own dissent in which he said that he also disagreed with Kennedy on the merits, not just standing.

  • 92. JayJonson  |  July 3, 2014 at 6:44 am

    Yes. For some reason, people are always speculating that Roberts is a possible "get" for marriage equality. That is simply delusional. He was very hostile in the oral arguments, and then wrote a dissent in which he clearly said that he thought DOMA was constitutional. If he believes DOMA is constitutional, he also believes the state DOMAs are constitutional. He has uniformly been anti-gay.

  • 93. tkinsc3  |  July 3, 2014 at 3:57 pm

    Or Kennedy may be on board with the state's primacy in matters of marriage that he mentioned in Windsor.

    And for that matter, so may Breyer, Kagan, Sotomayor, and Ginsburg. And it only takes 1 of those 5 to join the other 4 to uphold the state DOMAs.

  • 94. Ragavendran  |  July 2, 2014 at 7:10 pm

    I respectfully disagree, that is NOT complete speculation. My reasoning as to why the liberals might prefer to wait is that at least one of them (Ginsburg) and Kennedy have openly expressed surprise at how quickly the issue of same sex marriage reached the high court, and Ginsburg has indicated that the court should move slower in general on social issues, e.g. abortion rights. So, as long as positive rulings come out of the circuits, I disagree that all four liberals will rush to make it legal for the entire country. As for the conservatives, my reasoning is that if, for example, they don't take up Kitchen, then their stay is lifted and much much more same sex marriages will proceed in several states and cannot be undone later (they'll most likely be upheld as valid) and that is something they'll want to prevent from happening. Again, I disagree that the conservatives would deny cert simply because they don't think they have enough votes to win – they know the issue will most likely be forced when a circuit split happens and their chances of winning Kennedy over are not going to get better with time.

    I do of course agree that we do not know what the Justices discuss during conferences – a factual observation. And as a disclaimer, I'm not discounting the possibility that there may be other educated speculations that differ from mine. I would be glad to discuss/brainstorm them.

  • 95. Japrisot  |  July 2, 2014 at 7:50 pm

    Ginsburg never broadened her statement to include social issues, it was directed specifically at abortion, an issue whose divisiveness has not only remained entrenched but has actually worsened over the years. Sorry, but your logic is unconvincing.

  • 96. Ragavendran  |  July 2, 2014 at 8:12 pm

    And, respectfully, yours is as well. Ginsburg has said that she thinks Roe was to blame for the backlash and the entrenched/worsened divisiveness that you mention, since it went "too far, too fast". Prominent news reports carried this story at the time of the Prop 8 case last year, speculating on how Ginsburg's views on Roe might indicate an unwillingness on her part to declare gay marriage legal nationwide. And yes, there are also articles that respond to this speculation by citing the differences in the two situations. I'm just leaning towards one side of that debate, that's all.

  • 97. Mike_Baltimore  |  July 2, 2014 at 7:49 pm

    And maybe you should actually read SCOTUS rules.

    It takes FOUR justices voting for a writ of certiorari for a case to be heard. If Kagan, Ginsburg, Breyer, and Sotomayor want to hear a case, and vote for cert for a case, the case will be heard. Whether another Justice joins or not may be a consideration, but whether to hear a case or not is not determined solely based on whether the case will eventually succeed or not.

    Hypothetical (and this is known to ALL the justices) – After the case is accepted, two justices might be unable (for health or other reasons [death, assassination, accident, etc.] ) to help decide a case. In that case, the majority of justices would be four of seven.

    The hypothetical situation described above is unlikely to happen, but it can. And all the justices know that.

  • 98. jdw_karasu  |  July 2, 2014 at 3:33 pm

    I've really never gotten why people want to lose one before it goes up to SCOTUS. They don't need a conflict to take up a case such as Kitchen.

    We generally know where everyone stands on this. Kennedy and RBG were't quite ready to address the issue with Perry, but through Windsor (and to a degree Perry as well) set up an experiment of "wait and see". Just over a year later, they have their answers: a landslide of legislation and court rulings, not of which have sent the country teetering over into open rebellion or caused a plague of locust to fall on us.

    It's not an extremely "safe" ruling for them both. It's likely that they both would just as soon put the whole thing to bed come next June, which means taking it up later this year.

  • 99. Bruno71  |  July 2, 2014 at 4:26 pm

    Kennedy voted in favor of the bigots having standing, he was ready to address the issue.

  • 100. JayJonson  |  July 3, 2014 at 6:58 am

    Yes. Kennedy is ready to issue a definitive ruling. I think he would have done that in Hollingsworth had he prevailed on the standing issue. Windsor was somewhat circumscribed by the fact that it dealt with a federal statute. It was essentially a tax case, that as Roberts said could have been settled administratively or by the Justice Department simply accepting its win at the appellate level. But Kennedy took the opportunity to write an expansive ruling about marriage and about how bans on marriage are enacted out of animus and harm gay and lesbian couples and their children.

    I do not believe for a moment that he will not cement his legacy as the most eloquent defender of gay rights in the history of the Supreme Court with a ruling assuring the right to marry across the nation. My fear of delay is the reality that he and Justice Ginsburg are elderly and Ginsburg at least has a history of health problems. Should one of them retire or die, I think the Republicans would filibuster any appointment put forward by President Obama. That would leave a Court divided 4-4. Such a division on a marriage equality case, would uphold the appellate court ruling they are considering, but would not have the power to decide other cases.

  • 101. tkinsc3  |  July 3, 2014 at 4:02 pm

    "I do not believe for a moment that he will not cement his legacy as the most eloquent defender of gay rights in the history of the Supreme Court with a ruling assuring the right to marry across the nation."

    You obviously don't understand the level of respect he has for federalism. I highly doubt he sleeps on a rainbow pillow. And even if you were right about Kennedy, there remains the question of the other four.

  • 102. Japrisot  |  July 2, 2014 at 6:55 pm

    I also do not understand the misperception that circuit splits "force" the Supreme Court to take up a case. There are plentiful circuit splits in many areas of law that the Court has seen fit to leave in place (although, not on such a high profile issue). The fact is that the Supreme Court is going to want the issue settled in its next term. So it will take a case that has the best factual basis and procedural posture. If many or most circuits end up ruling in our favor, they will still take a case even in the absence of a split.

  • 103. Bruno71  |  July 2, 2014 at 7:06 pm

    It does surely vary from issue to issue. But on this issue, where a couple may be married in one circuit and not in another, it seems appropriate that they would step in to resolve that conflict. SCOTUS is rarely forced to do anything, but there are situations where I'm sure they feel they're called to step in more expeditiously than others.

  • 104. Japrisot  |  July 2, 2014 at 7:51 pm

    The point was that the court will take a case next term regardless of the existence or non-existence of a circuit split.

  • 105. ebohlman  |  July 2, 2014 at 8:04 pm

    Unfortunately, that could mean taking up a recognition-only case and issuing a narrow ruling, kicking the celebration issue down the road.

  • 106. JayJonson  |  July 3, 2014 at 7:04 am

    Perhaps. But even that would make a great deal of difference. Eventually even the hateful states like the one I live in will realize they are losing a lot of tax money and economic boost by forcing their citizens to arrange destination weddings. In addition, as a large majority of states achieve marriage equality via court (including state court) ruling or legislatively, marriage equality will become a litmus test for conventions and sports events. Ultimately, only Mississippi and Oklahoma would be left standing.

    However, I think it much more likely that the Court will take up a state ban on same-sex marriage itself and do the right thing–at least as long as we have 5 justices on our side. That is the great danger of wanting to wait. We may lose one of the five votes to retirement or death, and there is absolutely no guarantee of the Senate affirming a Supreme Court Justice nominated by President Obama.

  • 107. Ragavendran  |  July 2, 2014 at 7:18 pm

    I agree that on paper, i.e. theoretically, nothing forces the Supreme Court, but it is highly persuasive to them, because I would think that as the Supreme Court of the United States, one of their duties would be to ensure that issues of federal law (esp. the constitution) are not resolved differently in different states (circuits).

  • 108. Japrisot  |  July 2, 2014 at 7:54 pm

    You are missing the point of the comment. The point was not that the court should or would sit idly by while three circuits reach three different results with three different rationales. It is that the mere existence of a split does not force the court to take up anything. If they want to punt, they will punt. But the far more likely scenario is that they will take the 10th 4th or 6th circuit case next term in order to avoid the jurisdictional patchwork you are hypothesizing.

  • 109. Ragavendran  |  July 2, 2014 at 8:03 pm

    "I agree that on paper, i.e. theoretically, nothing forces the Supreme Court,"
    How is this missing the point of your comment?

  • 110. tornado163  |  July 2, 2014 at 7:20 pm

    I'm happy with victories. Let's say Utah appeals to SCOTUS. If SCOTUS denies cert, that's a powerful message that they aren't bothered by Utah's marriages, a tacit endorsement since they didn't scramble to accept the case to overrule the 10th Circuit. And if they grant cert, well that's what we want so we have a final decision once and for all.

  • 111. samg68  |  July 2, 2014 at 2:20 pm

    Did the Liberty Counsel attorney just quote Regnerus?!?!

    He's got balls…

  • 112. davepCA  |  July 2, 2014 at 2:24 pm

    Yup. And he goes on and on, telling blatant lies about what the Regnerus study 'proves'. He also just tossed out several off-the-cuff lies about same sex parenting in general. And several lies about rational basis. He also lied about the basis of the Windsor ruling, stating that it was just federalism, as if states can make any law they want, and they don't have to comply with the Constitution.

  • 113. samg68  |  July 2, 2014 at 2:28 pm

    Worrying that on many of the most blatant lies the judge didn't pick him up on anything…

  • 114. davepCA  |  July 2, 2014 at 2:47 pm

    I don't think that is anything to be concerned about. The Baker & Regnerus remarks were quickly discounted by some follow up remarks, and I'd be very surprised if the judge wasn't already aware of the facts on both of these issues.

  • 115. davepCA  |  July 2, 2014 at 2:28 pm

    Ha! He says "the first time same sex marriage happened was in 2000, in The Netherlands, in the Norwegians countries there"…. What an idiot.

  • 116. samg68  |  July 2, 2014 at 2:35 pm

    Apparently the Scandanavian Netherlands is falling apart and marriage there no longer means anything…

    I'm not sure all this his helping his case.

  • 117. davepCA  |  July 2, 2014 at 2:56 pm

    Can't you just picture the scene – the streets of Amsterdam (or Oslo? hmm…) littered with the listless bodies of dejected heterosexuals, just laying there on the sidewalks and quietly sighing and moaning, wishing that they could once again muster up the desire to marry, but knowing that this can never again be possible because of all those Norwegian gays getting married… in the… um… Netherlands….

  • 118. DACiowan  |  July 2, 2014 at 2:37 pm

    The Netherlands are in Norway? I'll let a Norwegian answer:

  • 119. brandall  |  July 2, 2014 at 2:51 pm

    Som en norsk, ønsker jeg å ettertrykkelig fast at vi besøkt alle de aktuelle fylkene inkludert Nederland før noen andre.

  • 120. KarlS  |  July 3, 2014 at 7:06 am

    You have a twelve inch WHAT?

  • 121. Corey_from_MD  |  July 3, 2014 at 7:20 am

    Very funny and cute, @brandall. This literally means "As a Norwegian, I want to emphatically state that we visited all the counties including the Netherlands before anyone else."

  • 122. DACiowan  |  July 2, 2014 at 2:33 pm

    Miami Beach amicus: 6 minutes on the stand

    Regnerus Guy: 32 and counting

  • 123. davepCA  |  July 2, 2014 at 2:35 pm

    … more baseless lies about how same sex marriage 'has weakened marriage' in the countries where it has been in effect since 2000. And not even any attempt to back up these lies with any flimsy rhetoric. He's just tossing them out there.

  • 124. LK2013  |  July 2, 2014 at 2:50 pm

    Ugh. I listened to him for about 15 minutes, then I had to mute it. It was making me nauseous. He talked for over half an hour, and I knew it was going to deteriorate. I tuned back in when she gave 5 minutes to someone representing Christian something-or-other at the end, but he blathered on for only a minute or two, spewing nonsense. I was relieved when the final word was given to someone who was actually making sense. Sorry I missed the beginning … how was Sylvia Walbot?

  • 125. brandall  |  July 2, 2014 at 2:55 pm

    The RSS for this feed did not show up until she had just concluded. I'll check back in a bit to see if FOX 35 archives the entire thing on their site.

  • 126. LK2013  |  July 2, 2014 at 3:22 pm


  • 127. RCChicago  |  July 3, 2014 at 7:40 am

    I've been looking for the archive as well (Channel 10 in Miami also provided a live-stream of the hearing). If you find it before I do, please post the link here. As a former but nearly life-time Floridian, I'm watching this closely.

  • 128. jdw_karasu  |  July 2, 2014 at 3:35 pm

    We should pay the other side to name drop Regnerus as much as possible. It's not like a judge isn't going to come across Regnerus being shredded in prior cases.

  • 129. RnL2008  |  July 2, 2014 at 3:44 pm

    It was SHREDDED in the Michigan ruling and I'm pretty sure this Judge will see that!!!

  • 130. samg68  |  July 2, 2014 at 2:46 pm

    Ugh, I always hate watching these hearings; the attorneys for the opposite side always seem more coherent than ours, even if lying through their teeth. I think many on this forum could do a better job of demolishing the arguments.

  • 131. DACiowan  |  July 2, 2014 at 3:01 pm

    Rambling on for 38 minutes on something like three patently false claims isn't very coherent. The term "puffery" comes to mind.

  • 132. davepCA  |  July 2, 2014 at 3:04 pm

    Yup. lying to a judge, followed by a huge diatribe about how great marriage is for opposite sex couples, doesn't do anything at all to provide an argument for why the state should be DENYING it to SAME sex couples.

  • 133. samg68  |  July 2, 2014 at 3:12 pm

    He was very coherent (well, at least until the end with the Netherlands/marriage will fall apart stuff). He may of been peddling bullshit, but his points were coherent and convincing if you were not aware of all these annoying things called facts.

    When we have so much of the facts on our side it's annoying when attorneys don't deliver these as convincingly as the liars.

  • 134. JayJonson  |  July 2, 2014 at 4:08 pm

    I know. It is frustrating to listen to the garbage thrown out by people like Staver and not have it immediately and devastatingly challenged by our side. But we need to remember that the judges are (probably) better informed than they might seem and that they will be fully briefed about the Regnerus study and other misinformation they hear in the oral arguments. So far, the judges, with only a few exceptions, have done a good job in seeing through the lies.

  • 135. Mike_Baltimore  |  July 2, 2014 at 8:23 pm

    Not to mention, law clerks, family, friends, etc., who can and do advise judges when opinions are being written.

  • 136. Zack12  |  July 2, 2014 at 3:09 pm

    The lawyer for our side basically demolished the state's and Staver's arguments in two minutes at the end.
    Not worried at all.

  • 137. LK2013  |  July 2, 2014 at 3:23 pm

    Yeah !!! He was succinct and sensible. Hopefully, enough said.

  • 138. RQO  |  July 2, 2014 at 3:57 pm

    The attorneys for the states are by now practiced in the Big Lie. The enthusiastic ones are reminiscent of Stalin era show trials?

  • 139. ebohlman  |  July 2, 2014 at 7:37 pm

    Reason for that is a human cognitive bias: the more certain someone seems of themselves, the more subjectively convincing they come across. It's easier to be self-certain about dogma and fantasy than facts and reality. This bias is where the whole concept of "truthiness" comes from.

    I've been reading Daniel Kahneman's Thinking Fast and Slow; and he describes all the factors that contribute to subjective perceptions of credibility. Suffice it to say that conservatives generally know how to employ those factors and progressives generally don't (and all too often regard doing so as "selling out").

  • 140. KarlS  |  July 3, 2014 at 7:09 am

    It's a bit like "debating" a creationist…they have well-rehearsed talking points (lies) and know they can spew them out without immediate interruption hoping something will stick…and they all too often do because listeners aren't generally educated. This hopefully is different if the judge isn't an idiot.

  • 141. bayareajohn  |  July 2, 2014 at 3:33 pm

    I just want to mention that the requirement for registration in order to comment does not appear to have slowed legitimate discussion here. I was worried it might stifle the activity. Fortunately it has if anything swayed posting towards more seriousness. Nice.

    Thanks, TKNSC, your worthless husk may have moved us forward.

  • 142. ebohlman  |  July 2, 2014 at 5:49 pm

    Our arguments are those of serious people.

  • 143. brandall  |  July 2, 2014 at 6:13 pm

    If anything, since the registration process was started, I believe we are seeing a larger number of disparate user names. And the quality is amazing.

    There are a few contributors who provide incredible amounts of information right off the top of their heads. It has been making me wonder if Boies or Olsen may be EoT bloggers? Perhaps some of the attorneys involved in active cases? Perhaps ebohlman is really Justice Kennedy (ebohlman, please take this as a compliment for your vast, helpful knowledge) citing all the procedural rules while checking us out for whether to take a vote in '15 or '16?

    Since almost no one provides any information in their profiles (hint, hint), I am sometimes certainly very curious about which commentors are/were attorneys, court clerks, law professors, etc.

  • 144. MichaelGrabow  |  July 2, 2014 at 8:42 pm

    News out of CO:

  • 145. Ragavendran  |  July 2, 2014 at 8:44 pm

    From Out Boulder:

    "Update on Boulder County Marriages: Well, politics truly makes strange bedfellows! Governor Hickenlooper states he feels the 10th Circuit Court decision which, in essence, says that denying marriage equality is unconstitutional, is correct. Suthers, the Attorney General facing off with our pal Hillary Hall, believes the 10th Circuit decision is wrong. Both of them are asking the Colorado Supreme Court to put holds on the Denver marriage case filed yesterday, and the Boulder County issuance of marriage licenses, until the marriage issue is heard and settled at the US Supreme Court. Is your head spinning? Until we hear differently, we believe that the Boulder County Clerk's office is still issuing licenses, and will post immediately if that changes in any way. In the meantime, we are so proud to live in Boulder County, where almost 100 couples have received marriage licenses in the past week!"

    I think the above statement misstates the court that the Governor and Attorney General jointly filed with. It is a federal district court and not the Colorado Supreme Court. In their filing, they:
    (a) DO NOT oppose the preliminary injunction request by the plaintiffs (this is mind-boggling)
    (b) Request a stay of the preliminary injunction if and once issued
    (c) Request a stay of all further proceedings of the case pending a final mandate on Kitchen by the Tenth Circuit

  • 146. ragefirewolf  |  July 2, 2014 at 9:26 pm

    Here's what I don't understand:

    I really don't understand what the point of this lawsuit is. The 10th Circuit already ruled in favor of marriage and stayed its decision. Putting another lawsuit on the lower court's docket won't change anything…

    Any clarity for me, Ragavendran?

  • 147. Ragavendran  |  July 2, 2014 at 10:01 pm

    I don't get it either. It's only symbolic, I guess. In all other aspects, it seems to be a waste of time and money. It is highly unlikely that this case will be resolved before the judgment in the state court case comes out. And yes, as you observe, the Tenth has already ruled in Kitchen. Why another federal lawsuit? The one (possibly) flawed reason I can fathom is that some court needs to strike down the Colorado ban as unconstitutional formally (directly) for this adamant AG to accept defeat. Since the Tenth has ruled and that ruling would be binding on lower federal courts, a federal lawsuit seems like a quick remedy rather than waiting for the state court case to get to the state supreme court and then get ruled on. (You know what the possible flaw is, don't you?)

    BTW, From Hillary Hall's attorney in a letter to the AG:

    “Clerk Hall is prohibited from knowingly violating an individual’s constitutional rights,” the letter said. “Given all of the other law in this area, the 10th Circuit’s decision to stay its mandate is too fragile a shield to hide behind.”

  • 148. JayJonson  |  July 3, 2014 at 7:14 am

    AS you say, it is mindboggling that both the AG and the Gov. are asking a district court to rule that the ban on same-sex marriage is unconstitutional. But they also both want the ruling immediately stayed until a SCOTUS ruling. It seems they are most interested in stopping the marriage licenses being issued in Boulder.

    I take this to mean that the AG is uncertain about his own ability to stop Hillary Hall from issuing the licenses.

  • 149. brandall  |  July 3, 2014 at 7:39 am

    They are both up for re-election. "ME is inevitable", "we support ME", but "we don't want ME before November 4th". Don't see, don't tell.

  • 150. JayJonson  |  July 3, 2014 at 8:07 am

    IIRC, Suthers is not up for reelection. He may be termlimited. He may be contemplating a future run for governor or Senator. Hickenlooper is running for reelection and has been very supportive of gay issues, so I am perplexed that he is joining an attempt to halt the marriages in Boulder.

    Suthers on the other hand has been an aggressive defender of the same-sex marriage ban, filing amici briefs defending Prop 8, for example. Does this filing mean that he is throwing in the towel?

  • 151. brandall  |  July 3, 2014 at 8:13 am

    Me bad. You are correct. Suthers is termed out. Perhaps he is thinking of his legacy and or future in CO politics? No news mentions of his "evolving" position.

  • 152. Japrisot  |  July 3, 2014 at 1:50 pm

    Hickenlooper may want to preserve the issue for the November elections. ME is now much more of a wedge issue for Republicans than it is for Democrats.

  • 153. ragefirewolf  |  July 3, 2014 at 12:31 pm

    The one flaw I can think of is that if the Colorado Supreme Court rules and someone appeals, that case goes straight to SCOTUS.

    That's a serious flaw, if true.

  • 154. Zack12  |  July 3, 2014 at 12:53 pm

    It very well could but the chances of SCOTUS taking a ruling from a State Supreme Court are rare.
    They did do it in Lawrence V Texas but here I could see them simply ignoring it.

  • 155. Bruno71  |  July 3, 2014 at 1:11 pm

    If they largely used federal grounds it would be more palatable for SCOTUS to take the case. They've obviously had no interest in reversing states who enact marriage equality based on state constitutions, but the federal constitution is their domain. Still, they may not want to touch a case by the time it got there anyway.

  • 156. Zack12  |  July 3, 2014 at 1:46 pm

    I think they will punt as long as possible.

  • 157. StraightDave  |  July 3, 2014 at 5:46 am

    I do admire Hall's courage and principles in forcing the issue, and possibly greasing the skids of both public and legal opinion. But how does her position differ from Bruce Hanes in PA, who did essentially the same thing? They both claimed to be applying their interpretation of the law, in opposition to higher state officials?

    I can understand the AG not wanting someone else to make his decisions for him, but does Hall have any greater legal leg to stand on than Hanes did simply due to what the 10th recently said? Note that I'm making a distinction between what the 10th said in its ruling and what it actually did, which really is nothing, yet – at least in a legal sense.

    That leads me to a related question of whether a stayed judgement can carry persuasive authority, even though it doesn't yet have any binding authority? Everybody heard what the 10th said, and now it will be hard to un-hear it. Are we really just stuck behind a reluctant AG who, in truth, is just doing his job, but who could just as easily decide to charge forward in relative legal safety?

  • 158. Bruno71  |  July 3, 2014 at 1:14 pm

    The central question isn't what cover she may or may not have from the 10th's ruling, but what her role is as deemed by the state of Colorado. We saw just today the 3rd Circuit uphold the PA District Court judge's ruling that a clerk there had no right to intercede in the case because her duties are purely ministerial. That goes for Hanes, too, of course. This is most likely a matter for state courts in Colorado to decide if she actually has the power to interpret the law herself, or if she must follow the lead of the AG. As of now, that seems to be unclear.

  • 159. eizverson22  |  July 2, 2014 at 8:49 pm

    This is really good news.<img src=>

  • 160. RQO  |  July 2, 2014 at 10:12 pm

    It is wonderful AG Suthers admits he can't win in court (federal and presumably state, we have both going on), even though he still thinks our constitutional amendment is constitutional. It is NOT wonderful Governor Hickenlooper (who was in the Pride parade and is up for re-election) has kowtowed to Suthers with their joint request to the federal court for a ruling striking down our law BUT – GAY MEANS STAY – delaying any changes till the US Supreme Court rules in Kitchen. This is totally unnecessary. The attorney (Ogden) in the state case has already protested, saying he can get ME declared by the state Supreme Court a lot sooner. However, the collapse of the Right wing opposition I mentioned earlier seems in full swing.

  • 161. RQO  |  July 3, 2014 at 6:49 am

    Email from One Colorado (GLBT rights group) is entitled "good news/bad news".Seems to indicate Gov. Hickenlooper did not consult with anyone beforehand, least of all those gay people.Jjust a little reminder of what being a tiny minority means?

  • 162. Ragavendran  |  July 2, 2014 at 11:05 pm

    Alaska Supreme Court's Harris v. Millennium Hotel oral argument video and audio is finally available now. It took place on May 13.

  • 163. jjcpelayojr  |  July 3, 2014 at 11:52 am

    Woot! I gotta hear this, just because I grew up in Juneau…

    Holy cow the Millennium Hotel's attorney is horrible….

  • 164. Ragavendran  |  July 11, 2014 at 12:38 am

    I just had the chance to watch this end-to-end. There is no question this case is going to be decided in favor of granting survivor benefits to same-sex couples, especially in light of the ACLU and the more recent Schmidt precedents. The million dollar question is how. Will the Court reach the constitutionality of the marriage amendment or not? It surprised me that the Court sua sponte raised this question during oral argument to both sides, and at least two of the five seemed okay with going there. Unlike ACLU and Schmidt, this case does raise federal claims and surely provides a procedural window, even if not the perfect opportunity, to address and strike down the marriage amendment, the root cause of these three cases. I agree with you that the counsel for Millennium Hotel seemed incompetent at best and confused and vacant at worst. They don't stand a chance. Also, more than once, the Court's ego (which is not necessarily bad) seemed to rear its head when counsel talked about SmithKline being the law of the land – they objected, saying that they are not bound by the Ninth Circuit, which the counsel acknowledged and said that it was nevertheless, persuasive precedent, and this Court could independently do what the Ninth did in carefully analyzing what Windsor actually did, which looked nothing like rational basis review.

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  • 166. JayJonson  |  July 3, 2014 at 7:32 am

    Re the development in Colorado reported above by Ragavendran: I wonder whether this tactic will limit the AG's further arguments in other cases involving marriage equality?

    Wouldn't it be unethical for an Attorney General to argue in one court that the ban on same-sex marriage should be declared unconstitutional and then, in another court–such as the Colorado Supreme Court–argue that the ban on same-sex marriage is NOT unconstitutional?

    I wonder if the AG has in his zeal to find some way to stop Hillary Hall has actually boxed himself into advocating a position in which he does not believe?

  • 167. scream4ever  |  July 3, 2014 at 7:40 am

    ^^^You got it. The state supreme court won't buy it and deny a stay of Crabtree's ruling.

  • 168. Ragavendran  |  July 11, 2014 at 12:49 am

    I just saw this, so I'm sorry for the late response. I'm surprised that this bit of news has been reported so wrongly by many news sources who have misinterpreted what this means. In the federal court in the recently filed Burns case, the attorney general DID NOT argue that the ban should be declared unconstitutional – there is a subtlety here. What he was saying in the district court is that he doesn't object to a preliminary injunction (based on Kitchen) that enjoins the state from enforcing the marriage ban (provided that it is stayed). But he goes on to say that he thinks Kitchen is flawed. In fact, if you read his filing, it says:

    To provide a clear record – the Attorney General – speaking alone as Defendant, representing the interests of the State of Colorado, believes the majority in the Tenth Circuit’s 2-1 decision in Kitchen is incorrect for the reasons stated in his motion for summary judgment and reply in support thereof in the pending state case, and for the reasons stated in the amicus brief Colorado joined in the Kitchen case. To further clarify the record – the Governor and Denver Clerk – speaking alone as Defendants, believe the majority decision in Kitchen was correctly decided.

  • 169. JayJonson  |  July 11, 2014 at 6:49 am

    Thanks for the clarification.

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