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Colorado appeals court declines to halt Boulder clerk’s issuance of marriage licenses to same-sex couples

LGBT Legal Cases Marriage equality Marriage Equality Trials

The county clerk in Boulder, Colorado, will be allowed to continue issuing marriage licenses to same-sex couples, after a state appeals court has rejected another attempt by Colorado’s attorney general to block the marriages.

As we’ve previously noted, the clerk made the decision to issue licenses after the Tenth Circuit Court of Appeals struck down Utah’s same-sex marriage ban. Colorado falls within the Tenth Circuit’s jurisdiction, and its ban is arguably unconstitutional.

A lower court judge declined to halt the marriages, and that decision was appealed, leading to this order.

In two recent cases, state and federal judges have struck down Colorado’s ban.

Thanks to Equality Case Files for these filings

126 Comments

  • 1. MichaelGrabow  |  July 25, 2014 at 8:22 am

    Many folks, myself included, were not too keen on Ms. Hall issuing the licenses rather than simply waiting a week or two for the CO case to have a ruling issued. Not that it should have, but it did not have any impact on the result of that case, and she also has successfully continued to evade the AG's attempts to stop her. Congratulations and thank yous are hopefully being offered up regularly to her!

  • 2. brandall  |  July 25, 2014 at 8:36 am

    I could not agree more with you. I was in favor of her bold move for the PR value it provided in Colorado while many others on this site were concerned she would legally muck up the works. It is safe to say there has been a constant drone of press in CO and that helps raise knowledge and awareness.

    But, I don't think she "successfully continued to evade the AG's attempts to stop her." She held her ground under threats and the AG managed to evade himself with some really bad strategic moves and terrible procedural filings.

  • 3. DrPatrick1  |  July 25, 2014 at 9:54 am

    I agree with your agreement. I too was in favor, more for the PR effect, knowing that she would likely be smacked down, but knowing too that what she was doing was right. She was not a rogue Mayor ordering the county clerk to do what is right but having very little precedential support (a la SF 2004). She was right on the law, she was right on the context of our societal changes, and she was right morally. She waited for a court ruling, and felt that at that point she could not wait any longer. She is a true hero of our modern movement. I don't think we can yet fully grasp the importance of her taking this stand.

  • 4. DocZenobia  |  July 25, 2014 at 10:45 am

    Just a comment regarding 2004: the marriages conducted in Multnomah County were done with the approval of the County Commissioners, an independently elected group, and under the advice of the County Attorney based on the 1998 Tanner decision from the Oregon SC. The decision to issue the licenses was upheld by a state judge only to be overturned by the Oregon SC in 2005 in Li and Kennedy vs Oregon. I believe Li was wrongly decided and the 2004 Oregon marriages should not have been invalidated, particularly if SCOTUS eventually decides that ME is a fundamental right.

  • 5. Eric  |  July 25, 2014 at 11:23 am

    I'll also point out that the law the "rogue" mayor violated was later found unconstitutional by the California Supreme Court. He was right on the law and he was right morally.

    The legislature should be pressured to reinstate those unconstitutionally voided marriages.

  • 6. Bruno71  |  July 25, 2014 at 11:28 am

    I suppose the legislature could do that, and it would probably go unchallenged, but it seems to be more a matter for the courts. The most likely cases might involve couples who may have remarried in another state, later in 2008 during the short window, or after last summer. As we saw in the recent ruling in Connecticut, they may be entitled to have their marriages considered valid dating back to their 2004 weddings.

  • 7. sfbob  |  July 25, 2014 at 11:28 am

    This is why, incidentally, those couples currently obtaining marriage licenses in Boulder County have nothing to worry about (disclaimers notwithstanding). The Fourteenth Amendment is clearly on our side and if bans on marriage equality are found to be unconstitutional, that means they have been, not only from the date the court so rules but from the get-go.

  • 8. MichaelGrabow  |  July 25, 2014 at 1:46 pm

    As shown in Connecticut.

  • 9. DrPatrick1  |  July 25, 2014 at 5:06 pm

    Of course! I agree that those marriages should be reinstated, since in '08 CaSC ruled it was unconstitutional to deprive gays marriage rights, therefore it was wrong to deny in 2004 and thus what the rogue mayor did was in fact correct. I'm slightly surprised no one has tried to challenge the invalidation of those marriages, though it is clearly a state matter and the state SC already spoke and invalidated the marriages. (This is a chicken and the egg problem. Because of his actions, Then Mayor Newsome brought the pre prop 8 marriage to CA, then kept equality following Perry. But it was arguably not legal to do what he did, as declared by the CaSC.).

    I use the word rogue not to challenge what he did, but to frame in the worst possible circumstance what happened. No matter what your views on the topic, you could not argue that what Ms Hall did was equivalent to what happened there when we lost. I am arguing that the marriages would be on much firmer ground and I believe the invalidation of the CO marriages would be unprecedented, even if we ultimately lose at SCOTUS. This is in contrast to what happened in CA where those marriages were invalidated.

  • 10. ragefirewolf  |  July 25, 2014 at 10:43 am

    Initially I was against it and frankly was not keen on any clerks taking such an action…but now that I have seen more of the substance around it and how it relates to the whole gay=stay dilemma, I've come to appreciate her actions. It definitely has PR value and maybe it is even a more seriously valuable boon for the LGBT people of Boulder County. My mind has definitely changed on this matter. I'm starting to see it as more of a civil disobedience kind of action in our favor as well…thank you to whoever point that idea out to me – sorry, I can't remember who said it.

  • 11. StraightDave  |  July 25, 2014 at 2:32 pm

    I was also one who was not in favor of Ms Hall complicating things too soon. But I was wrong. This may end up being a psychological turning point. She didn't wait until all the i's had been dotted. She stood up and said "this is right, I'm doing it, try to stop me, prove that I am wrong". And they couldn't do it!!

    Who knows, maybe it gave a couple judges enough backbone to also do the right thing and daring SCOTUS to stop them. No more automatic stays without a sound reason. As one of them said recently, "the law demands more".

    One feisty little person is moving the whole damn pile. This is so great to see.
    .

  • 12. DrPatrick1  |  July 25, 2014 at 5:11 pm

    Wasn't it the circuit judge who first refused to stop her who framed it as at worst civil disobedience which in the best possible light of the state's case could be reversed by the state? It was because at worst the "illegal" action could be reversed, and at best it was the correct thing to do, so no emergency injunction was granted.

  • 13. sfbob  |  July 25, 2014 at 5:23 pm

    And that really comes down to a "quick and dirty" application of the four-part test for deciding whether to stay a ruling.

  • 14. RQO  |  July 25, 2014 at 8:35 pm

    Yes – Judge Hartman. And the spirit of Clerk Hillary Hall seems to have infected a large part of the public, as well as the judiciary. Remember it was Boulder Clerk Clela Rorex who issued the first marriage license to a gay couple – in 1975. Nice documentary on that just out – and Ms. Rorex will be at the Denver showing. She caught hell but says she never doubted her decision (and also can't believe it has taken so long!).

  • 15. RnL2008  |  July 25, 2014 at 8:31 am

    Yeah for Colorado NOT giving a stay just because the anti-gay folks ask for it, at least for the time being!!!

  • 16. ragefirewolf  |  July 25, 2014 at 10:46 am

    I'm with you, Rose. I wish SCOTUS had never "set a precedent" with Kitchen by staying the Utah marriages from the get go. I can't stand this whole gay=stay thing. None of these states have convincingly met the four-factor test for stays.

  • 17. sfbob  |  July 25, 2014 at 11:11 am

    Indeed. And judges are beginning to remark on that fact.

  • 18. Bruno71  |  July 25, 2014 at 11:19 am

    Although one judge in Colorado actually laid out how the requirements for a stay were met. Unconvincingly.

  • 19. ChrysT17  |  July 25, 2014 at 11:22 am

    What is the four factor test? I'm aware of two – that the party requesting the stay is being harmed more than the other & that they are likely to prevail in the case – but not of the other two.

    I would also be interested in whether commenters on this site think the SCOTUS granting of stay in the Kitchen case might indicate that they plan to uphold the state bans – otherwise, the stay makes no sense in light of the usual test for stays: the plaintiffs in marriage equality cases are clearly suffering more harm, & if they are likely to win at the Supreme Court, then what would justify the stay? Unless the justices know we're not going to win there? Please tell me I'm wrong & why.

  • 20. Japrisot  |  July 25, 2014 at 11:30 am

    (1) likelihood of success on the merits; (2) irreparable injury absent a stay; (3) substantial injury to the other party if a stay issues; (4) the public interest

  • 21. sfbob  |  July 25, 2014 at 11:35 am

    Here you go:

    (1) the threat of irreparable harm to the movant if the court denies the preliminary injunction; (2) the balance between this irreparable harm and the harm the court would inflict on the nonmovant by granting the injunction; (3) the probability that the movant will succeed on the merits; and (4) the effect of the court’s decision on the public interest.

    For "movant" here read "plaintiff" (generally our side). For "non-movant" here read defendant.

  • 22. ChrysT17  |  July 25, 2014 at 12:30 pm

    Thanks to Japrisot & sfbob for the explanation.

  • 23. Waxr  |  July 25, 2014 at 2:33 pm

    Despite the four factors test, the general rule of thumb for a stay is to maintain the status quo. In these cases, the status que is the bans which to lawsuits are trying to remove. Stays maintain that status quo until a higher court can look at it.

  • 24. ragefirewolf  |  July 26, 2014 at 8:01 am

    Yes, but they are to maintain the status quo if and only if they do not cause substantial harm in holding back relief. However, that may be broken by side tradition of staying injunctions in cases of significant national importance in order to keep a sense of consistency? The thing is, all of these rulings post-Windsor have been very consistently in our favor…

  • 25. Ragavendran  |  July 26, 2014 at 8:07 am

    Right, and to determine whether a stay would cause substantial harm or not, they have to decide whether the bans are unconstitutional or not, which they want a higher court to determine first. Until then, like you say, the "safer" thing, when questions like this of great national importance are concerned, is to stay to maintain the status quo.

  • 26. RnL2008  |  July 25, 2014 at 5:11 pm

    I DON'T understand why we have guidelines IF they AREN'T going to be followed…….and in my opinion a stay should ONLY be granted IF all 4 of the parameters are met……and they weren't and no matter what the folks in Utah believe……the stay DOESN'T mean they will succeeded!!!

  • 27. Randolph_Finder  |  July 25, 2014 at 9:24 am

    Serious question. In what ways could continuing to issue License negatively effect Ms. Hall personally.
    1) She is in her second term, she won without an opponent in 2006, and beat a Republican 70%-30% in 2010, which means she is up in 2014, does anyone know if she is running for re-election? (Note, there were those already in *way out* opposition to her *before* Marriage equality came up, When I googled her and 2014 election, I found a website whose main place asked if you were going to fly the US flag or the UN flag on 9/11 (among the saner claims)

    2) Has there been any sign that the remainder of the County government is getting cold feet and/or becoming unwilling to fund the legal work to defend her?
    3) Is there any possibility of her being personally sued over granting Marriage Licenses to Same-sex couples?
    4) I seem to remember her agreeing to include a "here are the risks given the current legal situation" with Licenses for Same Sex couples, is that true and if so, can we get a copy (because it is frankly going to be a better synopsis than most of them out there)

  • 28. sfbob  |  July 25, 2014 at 9:31 am

    To quickly answer you I doubt she is in any serious trouble in her re-election bid. I can't speak about your second or third questions. But it seems unlikely she'd be sued particularly if, as seems almost certain, her position will eventually be vindicated. It's tough to successfully sue a public official for complying with the Constitution. As for your final question, she was ordered to warn people about the potential for their licenses to be invalidated later on and to keep and submit a record of any licenses that might be subject to later invalidation. You can find the decision–with those provisions–at the bottom of this article: http://www.denverpost.com/news/ci_26123997/judge-

  • 29. Randolph_Finder  |  July 25, 2014 at 9:38 am

    Responding to both of you under Dr. Heimlich

  • 30. DoctorHeimlich  |  July 25, 2014 at 9:33 am

    1) She IS running for re-election this November.
    2) I don't really know about that one, but I tend to doubt it. Boulder is as "liberal left" as you can possibly get in the state of Colorado.
    3) I can't see how. Someone would have to establish standing, showing how her decision to grant such licenses is causing them harm.
    4) The court order from Judge Hartman states:

    "As a temporary measure to protect all those affected by this case, the Court adopts the Boulder County Clerk and Recorder’s recommendation and ORDERS that Clerk Hall shall provide reasonable notice to prospective and past recipients of same-sex marriage licenses that the validity of their marriages is dependent upon whether a court would find that Clerk Hall had authority to allow same-sex marriages."

    The judge did not specify the exact text of the advisory.

  • 31. Randolph_Finder  |  July 25, 2014 at 9:52 am

    1) Thank you to both of you for letting me know she is running for re-election. Given that, I found the primary results at http://webpubapps.bouldercounty.org/clerk/Primary… . Neither the Republican party nor the American Constitution party had anyone run in their primaries and Hall was unopposed for the Democrats, which means anyone trying to defeat her will need a write-in candidate.
    2) I knew that Boulder was to the left, but didn't know how much.
    3) Wierder things have been claimed. 🙁
    4) OK, so this was Ms. Hall's proposed solution accepted by the Judge. Cool.

  • 32. brandall  |  July 25, 2014 at 9:48 am

    I could not find the official written warnings to SS couples for Boulder licenses. However, I found this 7/21 statement from Boulder county and a letter to the AG on the same day.

    What is significant is Boulder's statement "the State Supreme Court was asked by the AG to enforce a stay on all clerks. In addition, five county clerks filed briefs in the case asking for clarity as to whether they should or should not be issuing same-sex marriage licenses. Despite having the clear opportunity to, the Court’s order did not address clerks in any other county, including Boulder County. " It is a an interesting, valid position.

    Some of this is already out of date since Monday.

    Boulder County Statement: http://www.bouldercounty.org/apps/newsroom/templa

    Letter to the AG: http://www.bouldercounty.org/apps/newsroom/articl

  • 33. RQO  |  July 25, 2014 at 8:41 pm

    I remember the TV and Post reporting, back when Clerk Hall began issuing licenses, that her staff was informing couples their marriages might face legal challenge. Maybe check Channel 7 archives??

  • 34. Mike_Baltimore  |  July 25, 2014 at 10:47 am

    The original proposal for term limits in Colorado were for all Federal officials, all state officials and all local officials.

    On the ballot, and as voted into the state Constitution, the initiative stated term limits applied to:
    The state Governor;
    Lt. Governor;
    Secretary of State;
    Attorney General;
    Treasurer; and
    All members of the state legislature.

    And although Ms. Hall might be distributing marriage licenses from a personal viewpoint that it is the correct thing to do, she is distributing marriage licenses as a part of her job. The county MUST defend any of its employees who are not doing clearly illegal things (such as smoking pot or drinking on the job; harassing the opposite sex; etc.). Since Ms. Hall is distributing marriage licenses as a result of a court ruling (the 10th Circuit's) and her and others' interpretation of the US Constitution and that court ruling, there is very little she should be concerned about in terms of criminal procedure.

    As to the warning – I thought she was verbally telling people before the ruling that the marriages might not be recognized, but after the court ruling, she put the warning in writing. I could be wrong about the verbal part before the court ruling, though.

  • 35. sfbob  |  July 25, 2014 at 9:39 am

    Hats off to Clerk Hall for following in the footsteps of her predecessor, Clela Rorex, who issued marriage licenses to gay and lesbian couples back in 1975.

  • 36. DACiowan  |  July 25, 2014 at 11:01 am

    Here's an NPR story on Ms. Rorex http://www.npr.org/2014/07/18/332344999/colo-cler

    I'm glad that she's able to see the current progress.

  • 37. sfbob  |  July 25, 2014 at 11:12 am

    Yes she is still around and is hugely supportive of Ms Hall and of marriage equality.

  • 38. weaverbear  |  July 25, 2014 at 10:05 am

    Off topic, but does anyone here know if they issue rulings in the 4th Circuit on Fridays? Might there be a ruling in Bostic today?

  • 39. brandall  |  July 25, 2014 at 10:13 am

    They issue decisions on Fridays.

  • 40. jpmassar  |  July 25, 2014 at 10:41 am

    Might Godot arrive today?

  • 41. BenG1980  |  July 25, 2014 at 10:49 am

    It's anybody's guess. The 4th also issues opinions on Mondays, Tuesdays, Wednesdays and Thursdays, federal holidays excluded. lol

  • 42. brandall  |  July 25, 2014 at 11:02 am

    I doubt it, we've been waiting for him for quite a while. But, perhaps Bostic will.

  • 43. sfbob  |  July 25, 2014 at 11:13 am

    I'm beginning to wonder of that Godot fellow ever really existed. 🙂

  • 44. brandall  |  July 25, 2014 at 11:39 am

    Now I'm beginning to think Godot might actually arrive before Bostic.

  • 45. Mike_Baltimore  |  July 25, 2014 at 10:59 am

    From the 4th US Circuit Court of Appeals web site (http://www.ca4.uscourts.gov/opinions/search-opinions)
    "The court posts published and unpublished opinions and selected orders daily beginning at 2:30 p.m."

    The 4th US Circuit Court of Appeals is a Federal court, and uses the Federal definition of 'daily', meaning Monday through Friday, not including Saturdays and Sundays, nor Federal holidays (or the date they are observed on [for instance, if a Federal holiday (4th of July, for example) falls on a Saturday, it is observed on Friday] ).

  • 46. sfbob  |  July 25, 2014 at 11:17 am

    I've now got a separate tab opened to the Fourth Circuit's daily opinion page.
    http://www.ca4.uscourts.gov/opinions/daily-opinio

  • 47. MichaelGrabow  |  July 25, 2014 at 11:34 am

    Waiting…waiting…waiting…

  • 48. sfbob  |  July 25, 2014 at 11:40 am

    2:41 EDT. Nothing so far.

  • 49. Ragavendran  |  July 25, 2014 at 11:40 am

    2 published opinions today. No Bostic 🙁

  • 50. MichaelGrabow  |  July 25, 2014 at 11:43 am

    Oh, I'm so sick of waiting.

  • 51. dingomanusa  |  July 25, 2014 at 11:47 am

    Ragavendran would you mind giving us your thoughts on ChrysT17 comment/question: “whether the SCOTUS granting of stay in the Kitchen case might indicate that they plan to uphold the state bans. The stay makes no sense in light of the usual test for stays: the plaintiffs in marriage equality cases are clearly suffering more harm, & if they are likely to win at the Supreme Court, then what would justify the stay? Unless the justices know we're not going to win there?”

  • 52. Bruno71  |  July 25, 2014 at 11:53 am

    I'll chime in here as well…SCOTUS most likely wants to decide the cases themselves. If they allow district courts to make the decisions and have them apply to each state immediately, it strongly tips their hands that they would rule in favor of equality. They're choosing to make sure it's up to them, not lower court judges, regardless of how they ultimately vote.

    Personally, I believe there's a strong chance SCOTUS will deny cert on the 10th and 4th cases. I don't believe they want to have same-sex marriages start on the same day in 31 states, but I do believe they ultimately want to rule in our favor.

  • 53. dingomanusa  |  July 25, 2014 at 11:57 am

    Thank you Bruno.

  • 54. Zack12  |  July 25, 2014 at 12:25 pm

    I think they will deny cert IF all the rulings go our way.
    But if there is a split, they will have no choice but to take it up.

  • 55. Bruno71  |  July 25, 2014 at 1:52 pm

    I'm being optimistic and assuming that the 4th goes our way. I'm not sure when we can expect rulings from other circuits, but those may not come into play before the end of the year. Thus, I'm thinking round 1 is a punt.

  • 56. ChrysT17  |  July 25, 2014 at 12:39 pm

    Yes, thanks Bruno. Hope you're right.

  • 57. BenG1980  |  July 25, 2014 at 12:50 pm

    Although, it only takes four votes to grant cert. Scalia, Thomas, Alito and Roberts could force the issue if they want to do so.

  • 58. Bruno71  |  July 25, 2014 at 1:51 pm

    I predict that after a close call in 2013, the conservatives won't want to touch the case with a 10-foot pole. If true, that would leave it up to the liberals & Kennedy to decide if "the time is right."

  • 59. Steve27516  |  July 25, 2014 at 2:01 pm

    And based on Judge Ginsburg's comments, I assume that she and the other justices in favor of marriage equality are hoping that the circuit courts of appeals will handle the matter correctly so that the Supreme Court doesn't need to comment further. I think she would prefer that the opponents of ME don't ever get to say that ME was "imposed" on the nation by the Supreme Court.

  • 60. Bruno71  |  July 25, 2014 at 2:08 pm

    Right, and it's a lot easier to say that if it's only 15 states they "impose" it on rather than 31. The more states converted before they decide on the merits, the better. But it's definitely no given it turns out that way. They may have come thisclose to deciding Hollingsworth on the merits last summer. I think Scalia jumped on the standing train at the last minute to avoid a broader ruling.

  • 61. Zack12  |  July 25, 2014 at 2:12 pm

    It will be much easier if all of the rulings in State Court, AK,FL and CO go our way.
    Even half of the states will make it easier then 19 or 20.

  • 62. Bruno71  |  July 25, 2014 at 2:14 pm

    Considering AR, FL, & CO all went in our favor at lower courts, it's another avenue I hadn't even considered before a few months ago. Maybe we should be bringing suits in every state court system left.

  • 63. sfbob  |  July 25, 2014 at 1:59 pm

    Only four votes to grant cert. But if those are the only votes they can count on (assuming they insist on overturning the lower courts) they won't want to grant cert because they'll lose.

  • 64. MichaelGrabow  |  July 25, 2014 at 1:48 pm

    Oh lord, could you imagine the headlines for Fox News. The names they would come up with for that day…

  • 65. Japrisot  |  July 25, 2014 at 3:15 pm

    Unfortunately the Supreme Court did not explain its rationale. However, there are many reasons why the high court might have stayed Kitchen that have nothing to do with the likelihood of eventual success on the merits. One of the most likely reasons is that the court wants to avoid legalizing marriage equality under a patchwork of theories that differ from jurisdiction to jurisdiction.

  • 66. Ragavendran  |  July 25, 2014 at 9:33 pm

    I'm in India and just woke up and found all this discussion above. By and large, I agree with most of them. With Bruno's comment, I'd like to add that I think the fact that the Tenth Circuit went nuclear in its opinion must have some effect on the conservatives – whether it is enough to offset the conflicting feelings that Bruno mentions is a murkier question. (It's like the Tenth Circuit used a nuclear bomb – strict scrutiny – to kill a mosquito.) Also, as others have stated, the conservatives' chances of winning here aren't going to get any better with the passage of time. It is also rare for SCOTUS to wade in and issue a stay (twice now) but not take up the case when it comes to it. There are just too many variables to even reasonably predict with any degree of accuracy whether they will take up the case or not, let alone how they'll decide if they do.

    As for the granting of the stays, I think that the nine individually are far from knowing how the Court as a whole is going to rule, if it takes up the case – too much uncertainty and so they are taking the safe route by voting in favor of preserving the status quo. It doesn't mean they're going to uphold the marriage bans – the Court (as a whole) is just hopelessly undecided at the moment.

    I'll paste in a comment I made in another post which discusses my feelings about the Tenth Circuit's opinion in a little more detail. (Some background – I have a lawyer friend who is worried that the Supreme Court might rule against us if they take up the case, so she doesn't want them to take it up. On the other hand, my worry is that the Supreme Court might not take up the case and hence delay a positive nationwide ruling. This is what I said to her.)

    To the extent that the Tenth Circuit may or may not share either/both of our concerns, I found their calculated opinion in Kitchen nothing short of brilliant (despite lacking flowery language). I will direct you to two major features of the opinion and then discuss what I think their possible impact may be on the Supremes:

    (1) The Tenth Circuit went nuclear and declared that the fundamental right to marriage is a right held by an individual, and includes the right to choose someone of the same sex. This immediately triggered a strict scrutiny analysis, crushing the marriage bans.

    (2) The Tenth Circuit chose to completely ignore an "alternative analysis" of whether the marriage bans discriminate on the basis of sexual orientation, avoiding a discussion of the applicable standard of review and subsequent analysis of the marriage bans under that standard.

    The first point addresses my concern. What better way to anger the conservatives like Scalia and Alito than to recognize a "nonexisting" fundamental right that is "newer than cellphones and the Internet"? And the weapon here being strict scrutiny (nuclear)? Surely that's going to elicit a backlash and the conservative four will vote to grant cert hoping that even gay-rights-champion Kennedy can be persuaded that the Tenth Circuit went too far?

    The second point addresses your concern. By choosing not to discuss the alternative, the Tenth Circuit has given a way out for the Windsor majority to punt, if they find the case forced on them by the conservatives but still don't feel ready to issue a broad, nationwide ruling. Instead of being cornered to the point where they would have had to make a difficult choice between making gay marriage legal nationwide and crushing the gay rights movement big time, the Tenth Circuit has now explicitly given the Court a third choice – reverse and remand as follows: disagree with the rationale (that it is a fundamental right) and remand the case back to the Tenth Circuit with instructions to explore the alternative discrimination claim and apply the applicable standard. A setback, yes, but not a crushing one – they'd simply punt, delaying the final verdict.

    And when was the last time the Supreme Court overruled a string of 25+ unanimous lower court opinions across almost all the circuits on any issue?

  • 67. Zack12  |  July 25, 2014 at 11:44 am

    No Bostic today, which more then likely means we will see something by the end of next week.
    Related to the 4th circuit, Pamela Harris will likely be confirmed to the 4th circuit next Monday and she is a true liberal.
    She will be an ally going foward.

  • 68. BenG1980  |  July 25, 2014 at 12:01 pm

    I doubt it because the Affordable Care Act case was argued on May 14 and released on Tuesday.

  • 69. Zack12  |  July 25, 2014 at 12:38 pm

    Indeed, I think the big problem with the Bostic case is the fact it won't be a unanimous ruling so both sides will have plenty to say.

  • 70. Zack12  |  July 25, 2014 at 12:35 pm

    I think the 10th circuit ruling delayed the 4th by a couple of weeks.
    The stuff written there has given both sides more ammo to use.

  • 71. brooklyn11217  |  July 25, 2014 at 12:21 pm

    Victory in Alaska! Take that, Sarah Palin.
    http://www.courtrecords.alaska.gov/webdocs/opinio

  • 72. brandall  |  July 25, 2014 at 12:38 pm

    Alaska Supreme Court Rules 5-0 in FAVOR of Plaintiff – Death Benefits in a Same-Sex Relationship Who Could Not Marry, 17 page decision, Harris v. Millenium

    Background: A surviving same-sex partner applied for Workman's Comp Death Benefits after her partner was shot and killed at a Millennium Hotel property.The Workman's Comp Board ruled Harris was not entitled to death benefits because she was not married. WCB deferred the issue of "not being able to marry" to the Alaska SC.

    Multiple references to the SC's previous Schmidt decision, a previous tax case ruling…in Schmidt, they ruled the ballot measure “said nothing about denying or limiting benefits.” So again, they are not taking up the legality of the marriage ban, but defining its' effects on couple who are precluded from marrying.

    "the statute and Marriage Amendment together prevent same-sex couples from obtaining workers’ compensation benefits to the same extent as married couples because same-sex couples are precluded from marrying in Alaska or having their out-of-state marriages recognized."

    Footnote: Millennium also asserts that “Alaska does not recognize common law marriage” to support its argument. Marriages that occur in Alaska must be ceremonial to be valid, AS 25.05.011(b), but we have never decided that Alaska cannot recognize a common law marriage valid in another state.

    "We therefore conclude that the exclusion of same-sex couples from the possibility of qualifying for death benefits is not substantially related to the goal of administrative efficiency"

    "Denying same-sexcouples access to death benefits under the workers’ compensation statute does not bear a fair and substantial relationship to the purposes of the [financial costs of the] the act

    "The statutory classification in conjunction with the Marriage Amendment does not survive minimum scrutiny, we do not need to reach the question whether heightened scrutiny should apply or perform an analysis under federal law."

    It's too bad there is not a State District Court case currently in play because it sounds like the AK SC would be ready to strike it down.

    Ruling: http://www.courtrecords.alaska.gov/webdocs/opinio

  • 73. Zack12  |  July 25, 2014 at 12:50 pm

    I agree. There should have been a lawsuit filed in state court long ago.

  • 74. BobxT  |  July 25, 2014 at 1:42 pm

    Sounds like they are saying something like – "it may or may not be ok to ban same sex marriages, but if they are banned, same sex couples must receive the same benefits as if they were married".
    I wonder why they didn't address the marriage ban directly. Agree that they seem quite close to striking it down.

  • 75. davepCA  |  July 25, 2014 at 2:24 pm

    Looks to me like the court didn't address it simply because that question was not raised by the plaintiff. They won't rule on a question that is not directly before the court in that particular case. It is likely that the plaintiff parsed the issue specifically to avoid asking them to rule on this broader question of ME, so as to take the least risky path to getting a ruling in favor of equal insurance benefits.

    While a broad ruling would be great for all other same sex couples in Alaska, it makes sense that this particular plaintiff in this particular situation would not want to take on any extra risk. The broader ruling for Alaska will have to wait for another trial that asks the court to rule specifically on the constitutionality of the states marriage ban.

  • 76. Ragavendran  |  July 25, 2014 at 8:47 pm

    I agree that specific question wasn't directly before them in the appeal, but during oral argument, at least one of the justices seemed interested in going there and the counsel for the Plaintiffs did urge the court to do that. This is the third case (after ACLU and Schmidt) that the court has seen in recent years whose root cause is the marriage amendment, but the court has refused to go there and instead rule in favor of equal rights anyway. Also, according to the counsel for Plaintiffs, historically the Alaska Supreme Court has not hesitated to address questions not directly before it so it wouldn't have been extraordinary if the Court had chosen to strike down the marriage amendment.

  • 77. davepCA  |  July 25, 2014 at 8:51 pm

    Thanks! I did not know that. Good to know.

  • 78. sfbob  |  July 25, 2014 at 2:49 pm

    I think it's one of those situations where the court didn't address the marriage ban directly because it determined that was unnecessary. If I understand correctly, based on all discussion about how claims were supposed to be adjudicated in a fair and quick manner, using marriage as a proxy for eligibility made sense since the partners in a marriage are presumed to have a serious and financially-interdependent relationship while unmarried heterosexual couples are presumed not to qualify because the could be married. Because same-sex couples are legally precluded from getting married in Alaska or from having out-of-state marriages recognized in Alaska does not give the Workers Compensation Appeals Commission a pass on determining whether a surviving partner is eligible for benefits. It means that the board must conduct precisely the sort of eligibility inquiry that "marriage as a proxy" renders unnecessary. And thus the court remands the claim back to the state Workers
    Compensation Commission.

    I agree that while they ruling is positive in many respects it would have been far more satisfying to have had the court strike down the marriage equality ban, at least as applied.

  • 79. Ragavendran  |  July 25, 2014 at 8:48 pm

    Note that the oral argument for this case took place on the exact same day as Bostic. Even the Alaska Supreme Court beat the Fourth Circuit!

  • 80. haydenarwen  |  July 25, 2014 at 12:45 pm

    I have a feeling that The 4th won't issue until sometime in August and prolly after the 6th Circuits argues

  • 81. brooklyn11217  |  July 25, 2014 at 12:50 pm

    6th circuit argument just announced for August 26th.
    http://www.scribd.com/doc/235104422/14-2386-100

  • 82. brandall  |  July 25, 2014 at 12:55 pm

    This is the 7th, not the 6th. It is the 3 IN cases. Nothing about a 3 judge panel or en banc.

  • 83. brandall  |  July 25, 2014 at 1:16 pm

    WI and IN En Banc Denied

    Hoorah!

    WI – It is ordered that this case be orally argued on Tuesday, August 26 … in the Main Courtroom, Room 2721 of the United States Court of Appeals for the Seventh Circuit, 219 S. Dearborn St., Chicago, Illinois, at 9:30 a.m."
    http://www.wisconsingazette.com/wisconsin-gaze/au

  • 84. BenG1980  |  July 25, 2014 at 1:20 pm

    It's at least a temporary reprieve! When does the 7th announce the composition of its panels?

  • 85. Zack12  |  July 25, 2014 at 1:31 pm

    Not sure but like the 6th, the chances of us avoiding two Republicans is slim.
    All I'll say is we want see Richard Posner be one of those Republicans.
    He is much more likely to rule in our favor versus Frank Easterbrook or Diane Sykes.

  • 86. BenG1980  |  July 25, 2014 at 1:43 pm

    It apparently could be the motion panel which, I believe, included Posner.

    "(d) Certain Cases before Motion Panels. When a motion panel decides that a motion or petition should be set for oral argument or the appeal expedited, it may recommend to the chief judge that the matter be assigned for argument and decision to the same panel. In the absence of such a recommendation, the matter will ordinarily be assigned in the same manner as other appeals." (p. 6)

    http://www.ca7.uscourts.gov/iops00.pdf

  • 87. Zack12  |  July 25, 2014 at 2:02 pm

    That'll be good. I'm not saying he's a lock but his writings seem to indicate he doesn't think being gay is a choice.
    More to the point, he really REALLY hates Scalia so it's safe to say he won't follow Scalia's lead on this.

  • 88. Mike_Baltimore  |  July 25, 2014 at 2:23 pm

    According to the Seventh Circuit's 'Practitioner's Handbook For Appeals'
    ( http://www.ca7.uscourts.gov/rules/handbook.pdf ):

    "The identity of the three judges on any panel is not made public until the day the cases are argued." (On page 10.)

    The assignment of the panel's judges is made 30 days before the hearing (to allow the judges to read the briefs, among other reasons), but those assignments are not made public.

  • 89. brooklyn11217  |  July 25, 2014 at 1:32 pm

    Whoops, sorry.

  • 90. BenG1980  |  July 25, 2014 at 12:59 pm

    Not bad. Less than two weeks later than the previously scheduled and subsequently vacated date of August 13. The notice does refer to a "panel" of judges.

    "Oral argument will be no more than 20 minutes for each side. Counsel are advised that the panel of judges assigned to oral argument may decide, after reading the briefs, that less time is required for oral argument."

  • 91. MichaelGrabow  |  July 25, 2014 at 1:50 pm

    Yes, three judges.

  • 92. BenG1980  |  July 25, 2014 at 1:56 pm

    Yes, I posted that before brandall found the article reporting the requests for initial hearing en banc had also been denied. So much good news at once!

  • 93. MichaelGrabow  |  July 25, 2014 at 1:59 pm

    Ah, gotcha!

  • 94. Margo Schulter  |  July 25, 2014 at 1:59 pm

    ChrysT17, my own guess is that SCOTUS could enter these stays under a very generous (for the marriage ban defenders) interpretation of what “a fair prospect” for reversal on appeal means. As in some other areas of law, for example the standard for judging prejudice in criminal cases where ineffective assistance of counsel is alleged, they might ask if there is a “reasonable possibility” — not necessarily a probability of 50% or more — of a different result.

    In an ineffective assistance case, that would be a “reasonable possibility” that the result (e.g. on guilt or innocence, or the death penalty vs. life without parole in the punishment phase of a capital trial) might have been different if counsel had been competent. And here, it would be a “reasonable possibility” — not necessarily as likely or more likely than not! — that five Members of the Court might decide that the marriage bans were constitutional, e.g. under a theory that the police power of the States is especially strong in the area of marriage, a possibility left open by Windsor which a reasonable jurist could follow.

    The “gay means stay” frame of mind, as has already been observed, might be in part a desire to keep a lid on things, at least in part, and give SCOTUS a chance to have one or more circuit court decisions before it for cert. at the point where it has to decide whether to continue the stays (by taking one or more cases) or to vacate the ones in circuits where cert. is denied.

    So it could be a bit of judicial tempering and temporizing of what is in part a political process, but with always with the legal underpining that “reasonable jurists might disagree on how to read Windsor, so that we can fairly say that a prudent person wouldn’t rule out the possibility that Kitchen and the other marriage equality decisions could be reversed by five Justices of this Court.”

  • 95. micha1976  |  July 25, 2014 at 2:20 pm

    Any thoughts on the panel of the 6th, Martha Daughtrey, Jeffrey Sutton, and Deborah L. Cook? Two GWB judges, one senior Clinton judge; can we get one of the Bush judges?

  • 96. BenG1980  |  July 25, 2014 at 2:42 pm

    This topic has been discussed on several other threads, and it will be interesting to see what happens at oral argument. Sutton is conservative, but he did vote to affirm the constitutionality of the Affordable Care Act in 2011. I'm less optimistic about our chances of persuading Cook.

    Cook did not show any evidence of having an open mind between 1996 and 2002 in a long-running case that involved interpretation of the Ohio Constitution as it relates to public school funding. Her main issue was apparently an aversion to "legislating from the bench," which echoes one of the main arguments we've heard from the anti-marriage equality side. Ironically, Sutton was the Ohio Solicitor General at the time who originally defended the state.

    http://www.dispatch.com/content/stories/local/200

    Quote 1:

    But as they went around the table, that quickly became impossible.

    Cook dug in her heels. School-funding decisions, she said, were left by the people to the governor and lawmakers, not the court. She never budged from that position.

    "I always thought that was so bizarre, because the state never raised that argument," [Justice Paul E.] Pfeifer said. "The state never argued that the Supreme Court of Ohio doesn't have jurisdiction to interpret the constitution."

    Quote 2:

    "Cook's position was pretty clear: No way; that's it," [Justice Evelyn Lundberg] Stratton said. "I tried to be open-minded. I said, 'OK, I've heard the evidence, read the briefs; I'm going to look at whether there's anything here that might persuade me.' "

    Quote 3:

    [Chief Justice Thomas J.] Moyer and Stratton had hoped to persuade Cook to change her position, but she remained intransigent.

    Quote 4:

    Cook, once again, didn't budge, and Moyer and Stratton reluctantly joined her. After going out on a limb to prescribe a school-funding remedy in DeRolph III, Moyer was prepared to fine-tune that remedy and get rid of the case. However, he couldn't get a fourth vote.

  • 97. DoctorHeimlich  |  July 25, 2014 at 2:52 pm

    There was some good commentary from some of our regular posters back in the thread where the panel was first announced.

    Jeffrey Sutton is likely against us. Apparently, he wrote just this past March in the Harvard Law Review: "Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights." He has also written about the feeling that state constitutions and courts are where new rights should be pioneered. That makes him a big federalism proponent, and thus probably hard to win.

    But there's a glimmer of hope. Sutton is also apparently a huge admirer of 7th Circuit Judge Richard Posner, the very judge whose blog post we've been talking about here recently:
    http://www.becker-posner-blog.com/2012/05/homosex

    Sutton once said that whenever he was considering an issue, he instructs his clerks to "see what Posner has written on it." Let's hope he does so here.

    Deborah Cook has at least one pro-gay stance in her history. I found mention of a suit in which a student sued over a school district policy that prohibited making insulting remarks about other students' sexual orientation. This student said this policy violated his free speech rights as a Christian, and Judge Cook threw the case out. BenG1980's story above is discouraging, but I do still feel like she could be winnable.

    Martha Daughtrey was the Clinton appointee, and in one case joined an opinion that ruled an Ohio prison chaplain could not keep an openly gay prison inmate from leading a band on the grounds that he was gay. If you're pro-equality even in a prison context, an environment where rights are inherently restricted? Well, that calls to mind the Turner v. Safley case, often brought up in these marriage rulings alongside Loving and Zablocki. It feels like she'll definitely be on our side.

  • 98. Ragavendran  |  July 25, 2014 at 9:01 pm

    Another fact is that Sutton clerked for Scalia. Not sure if this bit of history might be relevant. Interestingly, Scalia did not hire him. Sutton was hired by Powell and then continued working for Scalia.

    “I wouldn’t have hired Jeff Sutton,” Scalia said. “For God’s sake, he went Ohio State! And he’s one of the very best law clerks I ever had.”

    http://www.abajournal.com/news/article/justice_sc

    Despite this, he became the first judge to rule in favor of Obamacare, which came as a big surprise at that time.

  • 99. brandall  |  July 25, 2014 at 2:50 pm

    Miami Dade, ban is unconstitutional! automatic stay

    @equalityfl: LOVE WINS AGAIN! Miami-Dade Judge Zabel just ruled FL's #marriage ban unconstitutional. There is an immediate stay on the ruling. #LGBTSouth

  • 100. sfbob  |  July 25, 2014 at 3:03 pm

    Great! Got a link for that one?

  • 101. sfbob  |  July 25, 2014 at 3:10 pm

    Thanks! Not your fault of course but that's pretty lame. I wish they'd provide an actual article instead of just that silly "news flash!!!" banner. Oh well, I'll take it anyway.

    Oh yeah and as davepCA says, the Herald's site is the place to go if you want lots of pop-up ads.

  • 102. BenG1980  |  July 25, 2014 at 3:22 pm

    Here's a link to the full article, and not just the headline!

    http://www.miamiherald.com/2014/07/25/4255321/mia

  • 103. davepCA  |  July 25, 2014 at 3:04 pm

    Got a link? I can't find the story! Too many other articles about Miami & ME in recent days.

  • 104. davepCA  |  July 25, 2014 at 3:09 pm

    Yikes that link gives me just about everything except an article about the ruling. I now know exactly where to go to get an abundance of pop up ads. I do see the headline about the article, but no actual article….?

  • 105. BenG1980  |  July 25, 2014 at 3:14 pm

    I assume they're still writing the article, but it should appear on that page under the headline soon.

  • 106. davepCA  |  July 25, 2014 at 3:18 pm

    If that is correct, Brandall has just set the bar even higher for finding out about these stories and mentioning them here as quickly as possible : )

  • 107. BenG1980  |  July 25, 2014 at 3:25 pm

    http://www.miamiherald.com/2014/07/25/4255321/mia

  • 108. brandall  |  July 25, 2014 at 3:20 pm

    Very sorry for the lack of a good link. I was in the park with the sun blasting in my eyes and I could barely read my iPhone, must less do a quick search for something other than a tweet.

    I guess I'll have to stay home and not go out because that is when these rulings always seem to be issued.

  • 109. davepCA  |  July 25, 2014 at 4:01 pm

    No worries, Brandall! And thanks for finding this stuff & notifying all of us!

  • 110. JoshLmno  |  July 25, 2014 at 4:39 pm

    No, you should go out more and get the 4th to issue their ruling 🙂

  • 111. SoCal_Dave  |  July 25, 2014 at 8:10 pm

    LOL, if there was any chance of that working, you know Brandall would be on it!

  • 112. sfbob  |  July 25, 2014 at 3:17 pm

    Here's a link to the latest ruling in Florida:

    http://www.eqfl.org/sites/default/files/miami_dad

    And the money quote, from the very beginning (after Judge Zabel opens by quoting directly from Loving vs Virginia):

    Loving was not cited once in the State’s brief, and it was disingenuous of it to ignore this seminal case rather than attempting to distinguish it. Nevertheless, this Court finds that the only distinction between Loving and the instant case is that the instant case deals with laws that deny the fundamental freedom to marry based upon people’s sexual orientation rather than their race. Because this denial is the denial of a fundamental right, it would have to be narrowly tailored to serve a compelling governmental interest in order to be valid. The statutes and constitutional amendment at issue do not meet this standard, nor do they meet the rational basis standard which only requires them to be rationally related to a legitimate governmental interest. For the reasons stated below, this Court finds that Florida’s statutory and constitutional restrictions on same-sex marriage violate the Due Process and Equal Protection Clauses of the United States Constitution. They improperly infringe upon
    the Plaintiffs’ ability to exercise their fundamental right to marry the person of their choice, and
    upon their liberty interests regarding personal autonomy, family integrity, association, and
    dignity. They also unlawfully discriminate on the basis of sexual orientation.

  • 113. davepCA  |  July 25, 2014 at 3:45 pm

    Thanks! I just finished reading it and there's a lot of good stuff in there.

  • 114. brooklyn11217  |  July 25, 2014 at 3:19 pm

    http://www.scribd.com/doc/235112282

    Twitter account @EQCF is the best! I can take no credit for finding it. @chrisgeidner is also awesome about posting the actual decisions.

  • 115. sfbob  |  July 25, 2014 at 3:30 pm

    Here's another very blunt quote from Judge Zabel (who I think I really, really like):

    "…this order does not interfere with any individual’s religious or other fundamental rights."

  • 116. brandall  |  July 25, 2014 at 3:34 pm

    My favorite and one that many of you have repeatedly stated for years:

    In short, by categorizing the right at issue the ‘right to same-sex marriage’ rather than the ‘right to marriage,’ the State is “attempt[ing] to narrowly parse a right that the Supreme Court has framed in remarkably broad terms,”

    This judge gets it!

  • 117. sfbob  |  July 25, 2014 at 3:35 pm

    I hadn't gotten that far yet.

    Zabel's ruling seems to have everything in it. I'm hoping we see her proposed for federal level judicial appointments very soon. But not until a Democrat gets elected governor in Florida.

  • 118. brandall  |  July 25, 2014 at 3:47 pm

    If you don't have time to read the entire brief, just read pages 18-19. Judge Zabel rips "tradition" to shreds better than any decision to date I have read. I believe she or the clerks have reviewed every single gay rights/marriage case decision. It is a broad, sweeping set of citations.

    "In Brenner, the State of Florida argued that the same-sex marriage ban is supported by history and tradition and the Amici supporting the ban make the same argument here. This argument, in essence, is that our long-history of denying same-sex couples the right to marry is reason enough to continue doing so. However, “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.”

    And the footnote:
    Adherence to the past’s prescriptions on fundamental rights would not only defeat the purpose of recognizing the right itself, it would license society to continue practices, such as the separation of races, which we now abhor. If historic limitations created limits to fundamental rights, not only could interracial couples still be excluded from marriage, but black and white children could still be required to attend different schools, unmarried persons could still be prevented from obtaining contraceptives, homosexuals could still be prohibited from engaging in sexual intimacy, and Native Americans could still be denied the right to vote. See Loving, 388 U.S. 1; Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955); Eisenstadt v. Baird, 405 U.S. 438 (1972); Lawrence, 539 U.S. at 566-67; Harrison v. Laveen, 67 Ariz. 337, 341, 196 P.2d 456, 458 (1948).

  • 119. sfbob  |  July 25, 2014 at 4:41 pm

    Sadly enough, I'm sure there are still people in this country who would be happy if

    "…interracial couples [could] still be excluded from marriage,…black and white children could still be required to attend different schools, unmarried persons could still be prevented from obtaining contraceptives, homosexuals could still be prohibited from engaging in sexual intimacy, and Native Americans could still be denied the right to vote."

  • 120. Mike_Baltimore  |  July 25, 2014 at 5:06 pm

    Lush Rimbaugh?

    Many members of the Tea Party? (Remember before the 2008 Kentucky primary, many people in Eastern Kentucky very proudly stated they would vote 'for Hillary rather than the n****r' ? I understand the TP is strong in Eastern Kentucky. And that whole area of the country is infested with 'primitive' (aka ultra-fundamentalist Xians.)

    Almost all members of the KKK, neo-Nazis, etc.?

    I'd say it is much more than just a hunch, but almost proven, that many people in the US would rather live in the 18th century rather than the 21st.

  • 121. Zack12  |  July 25, 2014 at 3:52 pm

    She could get nominated now but the problem is that if Republicans retake the Senate, she will have NO shot of getting through.

  • 122. brandall  |  July 25, 2014 at 4:07 pm

    I just have to point out one tidbit and then I'll be quiet. Judge Zabel suggests the FL SC should revisit their 2013 level of scrutiny decision (page 31). That takes a strong sense of right, wrong and how the law is being applied.

    "tt is respectfully suggested that the question of what level of judicial scrutiny applies to sexual orientation discrimination be revisited on appeal."

  • 123. davepCA  |  July 25, 2014 at 4:19 pm

    Yes, that was really good. The judge could has simply ruled that the ban doesn't even survive rational basis scrutiny, and left it at that. But the judge goes on to point out that heightened scrutiny OUGHT TO be applied, but that current legal conditions particular to Florida prevent this court from doing so, and that this needs to be addressed separately. Well done.

  • 124. davepCA  |  July 25, 2014 at 4:15 pm

    Also the related points made by the judge, explain that attempting to define the right simply by stating who is or is not currently allowed to exercise the right is an entirely circular argument and skips the whole issue being discussed.

  • 125. Zack12  |  July 25, 2014 at 3:41 pm

    Sadly a stay has been ordered but that would be the case on any issue in Florida. A ruling that is appealed is automatically stayed, period.
    I hope this will speed things up though.

  • 126. davepCA  |  July 25, 2014 at 4:25 pm

    DOH!! We have hit the 100 comment thread collapse threshold. New article about the Florida ruling is up now so let's all move the rest of the Florida discussion over there, okay?

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