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Florida judge strikes down state’s same-sex marriage ban

LGBT Legal Cases Marriage equality Marriage Equality Trials

A state judge in Miami-Dade County, Florida, has struck down the same sex marriage ban, in a case brought by the National Center for Lesbian Rights (NCLR).

The case was argued earlier this month.

The court noted the long string of wins in court – this decision is the thirty-second win – in striking down the ban:

The recognition that the right to marry encompasses categories of people not traditionally considered to be accorded that right has been slow in coming, but it has become increasingly obvious that it is not constitutionally permissible to deny same-sex couples the right to marry.

The flood of cases that have come out since Windsor amply demonstrates this truth as not one court has found a same-sex marriage ban to be constitutional. As case after case has come out, unified in their well-reasoned constitutional condemnation of the deprivation of one class of person’s right to marry, the answer to the question of whether it is constitutionally permissible to deprive same-sex couples of the right to marry has become increasingly obvious: Of course it is not. Preventing couples from marrying solely on the basis of their sexual orientation serves no governmental interest. It serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society.

The journey of our Nation towards becoming “a more perfect Union” does not stop at any particular generation; it is instead a fluid process through every generation. U.S. CONST. pmbl. The Court, therefore, foresees a day when the term “same-sex marriage” is viewed in the same absurd vein as “separate but equal” and is thus forsaken and supplanted by ordinary “marriage.” See Whitewood, 2014 WL 2058105 at *15.

The decision is stayed pending the expected appeal.

Another judge, in Monroe County, recently invalidated the ban. That ruling only applies in Monroe County, and it appears this one applies only to Miami-Dade County.

Thanks to Equality Case Files for these filings


  • 1. brooklyn11217  |  July 25, 2014 at 3:38 pm

    I wonder what per centage of the country now lives in a place with stayed marriage equality decisions. More good news, but the expected stays are frustrating.

  • 2. MichaelGrabow  |  July 25, 2014 at 3:50 pm

    An unreal 25%!

  • 3. Ffrreedd  |  July 25, 2014 at 5:48 pm

    25% live in marriage equality states. I am unsure what percent with stayed equality decisions. I think it is higher.

  • 4. BenG1980  |  July 25, 2014 at 5:58 pm

    Michael is correct. Not counting Florida, Ohio or Tennessee in either category, 45.2% of Americans live in marriage equality states, and another 25.8% live in states with stayed marriage equality rulings (including Kansas and Wyoming). Those figures total 71% — which means a mere 29% still live in neither.

  • 5. RobW303  |  July 26, 2014 at 11:03 am

    That Wikipedia page mistakenly lists Colorado as a marriage equality state. Hence their 45.2% figure should be 43.5%. (Disclosure: My own calculations below were based on older population figures.) They list Colorado again among the states with stayed rulings, causing a double count in your total. Their inclusion of Kansas and Wyoming in the stayed rulings list is also misleading—the UT/OK rulings only set precedent for the KS/WY litigation, and the stays don't directly affect those states either, except insofar as courts may defer litigation pending developments in the more advanced cases (as has happened in West Virginia, waiting on the Bostic ruling).

    In light of the currently limited scope of the Florida rulings, I've revised my "struck but stayed" estimate back down to 24.6% (which does not include Kansas or Wyoming). So the total I come up with is 68.1%, though your mileage may vary depending on how you slice the pie and the year of your population figures. It will also vary slightly depending on whether you include the territories—not everyone is using the same yardstick.

    BTW, I mistakenly said that the forthcoming ruling would add Virginia to the "unreal" figure, but since there the ban was already struck in federal district court, it's already counted, as my own list showed.

  • 6. DACiowan  |  July 26, 2014 at 11:18 am

    Wiki is counting Colorado as a marriage state since there is a definite time of expiration on the stay, so right now its situation is analogous to having an ME act passed but not yet in effect. If somebody puts in a permanent stay pending final resolution of the Colorado mess, then Colorado will be off the marriage list. That table of marriage equality states includes all states where there is a set date where if nothing intervenes, marriages will start. When Idaho's ban was struck down, and only a temporary stay for a few days was in effect, Idaho was in that table until the permanent stay came down.

    As for Colorado on the stayed table, I think that's a holdover from the current confusion. I've removed the stayed table Colorado.

  • 7. brandall  |  July 26, 2014 at 12:43 pm

    We probed this issue a few weeks ago here on the site. How do you count CO when "technically" anyone in CO can go to Boulder and get a license? This is the only state with this anomaly regardless of the stay status. I'm not taking a position here, just curious.

  • 8. DACiowan  |  July 26, 2014 at 1:57 pm

    The current Wiki policy is that Boulder alone does not get the state on the marriage table, since the state ban was still in force. The ruling in federal court setting a state precedent is what gets Colorado on the tables (a state supreme court ruling would work as well), and since there isn't a permanent stay yet, Colorado goes in the full marriage table.

    In short – ban struck down, no stay or temporary hold: full marriage table.

    Ban struck down, stay pending appeal – stayed marriage table.

    No ruling or law removing ban statewide – neither table (like Tennessee)

  • 9. RobW303  |  July 25, 2014 at 5:58 pm

    Yes, by my calculations, 43.7% of the population lives in states with marriage equality and now 30.7% lives in states where the bans have been struck but stayed (AR, CO, FL, ID, IN, KY, MI, OK, VA, TX, UT, WI). This does not include the 5.7% who live in Ohio and Tennessee, where recognition of out-of-state same-sex marriages has been ordered but stayed. It also doesn't include the remaining states in the 10th Circuit (Kansas and Wyoming), subject to the precedent established by the Kitchen and Bishop cases, whose challenges are virtually guaranteed of success once heard. Any day now we expect a favorable ruling in Bostic, adding Virginia and setting the precedent for North and South Carolina and West Virginia. Nevada and the concurrently-heard Idaho 9th Circuit appeals I'd wager as shoe-ins in October, setting precedent for Alaska, Arizona and Montana. We could be looking at either wins or losses in the 6th, 7th and 8th Circuit appeals, though I think they'll read the writing on the wall, upholding lower court rulings, while I'd almost bet that the 5th Circuit, against all reason, will overturn the lower court decisions (I anticipate a win in district court in Louisiana)–so long, Texas. In short, I suspect that unreal 30% will have grown to an unreal 40-50% before SCOTUS grants cert, even if they move expeditiously.

  • 10. MichaelGrabow  |  July 25, 2014 at 6:38 pm

    I'm keeping hope alive for the 5th!

  • 11. DoctorHeimlich  |  July 25, 2014 at 3:51 pm

    Take with a Wikipedia grain of salt, but Florida should bring it to about 31.9% of the U.S. population living in a state where a marriage equality ruling has been stayed.

  • 12. MichaelGrabow  |  July 25, 2014 at 4:32 pm

    It's only Monroe and Miami Dade counties as of now though.

  • 13. jjcpelayojr  |  July 25, 2014 at 5:30 pm

    winning Miami-Dade is no small matter though considering it's the most populous Florida county.

  • 14. brandall  |  July 25, 2014 at 5:35 pm

    And I take great personal satisfaction with it being Miami-Dade because it is the starting point of when I first learned we were hated and awful people … thanks to Anita Bryant. I would love to make her read this decision out loud in front of a bunch of us.

  • 15. Bruno71  |  July 25, 2014 at 5:49 pm

    Haven't heard much from ol' Anita lately. In the 80's, leading a quiet life after the shitstorm she fueled in the late 70's, she claimed she shouldn't have spoken so "hatefully." She was right. Look at Miami-Dade now for proof.

  • 16. Deeelaaach  |  July 28, 2014 at 9:44 am

    For those of you who believe in what wikipedia says (I take it with a grain of salt personally), the article on Anita Bryant currently says this at the end of the "Career Declines and Bankruptcies section:

    "In a 1980 Ladies Home Journal interview, following her divorce and in the aftermath of her anti-gay activism, Bryant commented on her anti-gay views and said, "I'm more inclined to say live and let live, just don't flaunt it or try to legalize it.'[20] However, the biography page on her Anita Bryant Ministries website (written in 2006) continues to defend her earlier anti-gay activism and views.[22]"

  • 17. MichaelGrabow  |  July 25, 2014 at 6:29 pm

    I don't mean to diminish the victory obviously. I was just saying that 31.9% figure isn't accurate if it only impacts those two counties, which is the case from what I've read.

  • 18. Mike_Baltimore  |  July 25, 2014 at 6:08 pm

    True, but BOTH courts found the Florida state laws and the Florida state constitution to be at variance with the US Constitution. Although the rulings are local, the effect (if/when the stays are lifted) apply to the entire state.

    To the best of my knowledge, Florida consists of more counties than just Monroe and Miami-Dade, like about 65 more.

    And last I heard, the laws of the state of Florida and the constitution of the state of Florida (supposedly) apply to ALL counties in Florida, not just to Monroe and Miami-Dade.

  • 19. BenG1980  |  July 25, 2014 at 6:17 pm

    It's not so much the stays that are limiting the expanses of the rulings as the geographic jurisdictions of the courts that are issuing them and the fact that the only party actually sued in each case was the local county clerk (although the state intervened in both). While the choice of defendants may have been strategic or even due to a quirk in Florida law, as others have said, the appeals courts encompass larger territories and the Florida Supreme Court obviously covers the entire state, so, once the appeals process gets underway, the impacts will expand accordingly.

  • 20. Mike_Baltimore  |  July 25, 2014 at 9:52 pm

    May I remind you that the comment was "It's only Monroe and Miami Dade counties as of now though."

    Except EACH court decision struck down the state laws and specific provisions of the state constitution.

    So the decisions might affect only two counties as of now, but if/when the stay is lifted, the decisions are state-wide in effect.

    And both courts will appeal to the same appeals court – Florida's 3rd District Court of Appeal, which covers Monroe and Miami-Dade counties, and ONLY those two counties. So the geographic area will NOT expand at all until an appeal is made to the Florida Supreme Court.

  • 21. MichaelGrabow  |  July 25, 2014 at 10:19 pm

    My only point was that the 31.9% figure referenced above was inaccurate because it includes all of FL. If and when the stays are lifted/the decisions are upheld is irrelevant to what we were talking about. It was simply what percentage of people are living in places with stayed marriage equality decisions.

  • 22. Mike_Baltimore  |  July 26, 2014 at 1:58 pm

    Except who stated three posts above:
    ". . . so, once the appeals process gets underway, the impacts will expand accordingly."?

    If your only point was ". . . that the 31.9% figure referenced above was inaccurate. . . .", then why the ADDITIONAL (and incorrect) point that ". . . so, once the appeals process gets underway, the impacts will expand accordingly."? (The two counties appeal to the same Court of Appeals, whose jurisdiction is Monroe and Miami-Dade counties only.) Isn't that an additional point?

    And if the original court decisions are upheld on appeal (which they should be), the rulings eventually apply statewide, not just in two counties. After all, the only reason for the stays were for the state to appeal the rulings (one was automatic when the state appealed, the other because the state told the judge the state would appeal [and did so less than one hour after the ruling was handed down] ).

    You might have a valid argument that AS OF THIS MOMENT, there are only two counties in Florida affected, but you have NOT expressed that position very well, since if there were no stays, the decisions would affect Florida state-wide, since the decisions strike down Florida state laws and provisions in the Florida state constitution. I believe the laws and the state constitution affect those people who do NOT live in Monroe and Miami-Dade counties, also, such as those who live in Orange, Broward, etc. counties. Thus the stayed rulings DO affect Florida as a whole.

    Or maybe you think that except in Monroe and Miami-Dade counties, there is ME in Florida? And there is no ME in Monroe and Miami-Dade counties ONLY because of stayed court rulings?

  • 23. MichaelGrabow  |  July 26, 2014 at 4:12 pm

    Boy, you sure do like to argue. Look again at the quote you are asking about. It did not come from me.

  • 24. hopalongcassidy  |  July 26, 2014 at 4:15 pm

    Must be a Michael/Mike thing…my partner of 32 years is one too and he's also anal retentive. 😀

  • 25. BenG1980  |  July 26, 2014 at 6:24 pm

    Mea culpa, mea culpa, mea maxima culpa! I didn't realize the two counties were in the same appellate district.

  • 26. MichaelGrabow  |  July 25, 2014 at 6:30 pm

    From what I have read, they only apply to their respective counties.

  • 27. ebohlman  |  July 25, 2014 at 7:08 pm

    But as I understand it, if they're upheld on appeal they'll apply statewide.

  • 28. MichaelGrabow  |  July 25, 2014 at 8:42 pm

    Same thing I've read here from a few folks.

  • 29. DoctorHeimlich  |  July 25, 2014 at 4:07 pm

    I love this ruling.

    It opens with a hammer:

    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.

    It stops briefly in the middle to discuss heightened scrutiny for gays:

    Based on the foregoing, it is respectfully suggested that the question of what level of judicial scrutiny applies to sexual orientation discrimination be revisited on appeal.

    And then drops another hammer on the way out:

    Florida’s same-sex marriage bans violate the Due Process and Equal Protection Clauses of the United States Constitution, and they also offend basic human dignity.

  • 30. JoshLmno  |  July 25, 2014 at 4:12 pm

    Yay Florida! What's with the county by county approach? Are there any state-wide cases or Federal level cases in FL?

  • 31. Bruno71  |  July 25, 2014 at 4:25 pm

    These county cases will become statewide on appeal, and there are 2 cases consolidated together that are working their way through a federal court in Florida as we speak.

  • 32. JoshLmno  |  July 25, 2014 at 6:38 pm

    Ok, that makes sense. Thanks to you and RemC. Another ruling I hope we'll celebrate!

  • 33. RemC_in_Chicago  |  July 25, 2014 at 4:26 pm

    Yes. A federal case with all briefs submitted to Judge Hinkle in Tallahassee is now awaiting his ruling.

  • 34. Zack12  |  July 25, 2014 at 4:30 pm

    Read the full ruling, she gives them the tearing apart they deserve.

  • 35. BobxT  |  July 25, 2014 at 4:40 pm

    This seems weird – "In the instant case, the State has not identified any government interest served by banning same-sex marriages. Instead, it argues that the rational basis test applies, that it has no obligation to identify such interests, and that this Court must instead examine every conceivable basis which might support same-sex marriage bans."

    Can the state really cop out like this and require the court to disprove every conceivable basis?? Isn't that a logical impossibility?

  • 36. sfbob  |  July 25, 2014 at 4:44 pm

    They can make any argument they want no matter how ludicrous. That doesn't entitle them to be taken seriously by a judge.

  • 37. SeattleRobin  |  July 25, 2014 at 4:53 pm

    My understanding from following this site is that under rational basis the state is given a lot of deference, and part of that includes a judge being able to supply a conceivable (and acceptable) rationale that the state hasn't identified.

    But it sounds like the state is stretching that framework past what is intended, and the judge is basically saying they abdicated their responsibility to actively participate in the defense of their law. So, no the state can't require that, at least not to the absurd extent suggested here.

  • 38. davepCA  |  July 25, 2014 at 5:22 pm

    Yup. On this same question, the courts have already ruled that even though rational basis scrutiny can give a lot of deference to the state, 'rational basis is not toothless'. There does have to at least be some kind of argument that suggests at least some kind of rational connection between the purported goal of the law and what the law actually does. And when a law violates rights and results in denial of equal legal treatment, the state can't just offer irrational justifications that don't survive simple logical examination and then say 'well maybe there was some other reason it was enacted. You guys have to prove there wasn't'. They don't get THAT much deference.

  • 39. StraightDave  |  July 25, 2014 at 5:27 pm

    "even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. ". Romer v Evans

    So, no, the state can't get away with claiming they don't have to say anything at all.

  • 40. brandall  |  July 25, 2014 at 5:21 pm

    BobxT, sfbob and Robin. I think the state believed rational basis applies because of the 2013 FlL SC decision. Therefore, they need not go any further.

    "this Court is bound by the Florida Supreme Court’s 2013 statement that “[s]exual orientation has not been determined to constitute a protected class, and therefor
    e, sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment to homosexuals.”
    D.M.T., 129 So. 3d at 341-42 (applying rational basis review in an as-applied constitutional challenge to Florida’s assisted reproductive technology statute.).

  • 41. sfbob  |  July 25, 2014 at 5:31 pm

    That might be possible but even the (admittedly lame and already debunked) arguments in favor of upholding such bans rest on more than a refusal to treat sexual orientation as a protected class. There's at least some duty to show that the justification for the law doesn't also justify the same application in other situations where even the proponents would not wish to go, for example that using "procreation" as a reason to withhold marriage rights from gay and lesbian couples could also be applied to the sterile, to post menopausal women and to couples that choose not to have children, or else could be used to alienate adopted kids from their adoptive parents, refuse to grant paternity rights to couples who procreate through IVF or surrogacy, and so on. Just because the standard is low does not mean it doesn't exist.

  • 42. SeattleRobin  |  July 27, 2014 at 1:55 am

    I don't think Bob was questioning the state's stance that rational basis applies. They all say that. But in the excerpt Bob quoted the judge is saying that the state is not only clinging to rational basis, but that the state is insisting that it is the judge's job to think up every possible reason people had for supporting the bans and then examine each one for constitutionality.

    Evidently the state didn't provide a single reason. Instead, they put it all on the judge, and the judge isn't playing. So my response was saying that yes, a judge can provide an acceptable rational basis for a law that the defense didn't put forward. But the defense can't just sit on its hands and expect the judge to do all their work for them simply because rational basis means there's a lot of leeway allowed as to what constitutes rational.

  • 43. Jen_in_MI  |  July 25, 2014 at 4:48 pm

    And upon what rationale was an immediate stay granted, other than "gay means stay," and that irreparable harm appears not to apply to the trampling of LGBTQ citizens' rights?

  • 44. ebohlman  |  July 25, 2014 at 5:17 pm

    Implicitly, the fact that FL law requires an immediate stay on appeal.

  • 45. MichaelGrabow  |  July 25, 2014 at 5:19 pm

    It can't be appealed before it's issued though…

  • 46. Mike_Baltimore  |  July 25, 2014 at 6:18 pm


    But the state will appeal, therefore the decision has been issued. Maybe not yet in transcript form, but from the bench.

  • 47. MichaelGrabow  |  July 25, 2014 at 6:33 pm

    I understand it is clearly been issued. What I'm saying is an appeal can't be filed before the ruling is issued, and that just happened. In other words the automatic stay only applies upon appeal, which hasn't happened yet as far as I know.

    Edit: I see below brandall says it was appealed within 40 minutes…

  • 48. sfbob  |  July 25, 2014 at 5:20 pm

    "Understanding its ruling is unlikely to be the “final word” on the topic of same
    -sex marriage, the Court immediately stays this Order pending the outcome of the expected appeal(s). Although this Court recognizes that a person should not be denied a fundamental right for even one day, it feels the uncertainty that could arise if same-sex couples were to marry pursuant to an order that is subsequently reversed on appeal warrants a stay. If affirmed, the Party-Defendants are hereby required to issue marriage licenses to the Plaintiffs and to all otherwise qualified same-sex couples who apply for marriage licenses, subject to the same restrictions and limitations applicable to opposite-sex couples."

    Under Florida law, a decision that has been appealed is stayed automatically. I'd assume that since a virtually identical ruling in another state circuit (Monroe County, two weeks ago) has already been stayed the judge felt she really didn't have a choice.

  • 49. brandall  |  July 25, 2014 at 5:32 pm

    You are correct about Monroe County – Huntsman and Jones v. Heavlin. The court judge denied the Plaintiff's motion to lift the stay and the district court affirmed it. That case is only 8 business days ahead of this new one.

  • 50. davepCA  |  July 25, 2014 at 5:24 pm

    No more rationale here than in any of the other trials. Except that in Florida, a stay is automatically granted when a ruling is appealed, without any attempt to apply the 'four questions' test (which is not the case in other states) and the state did already make it clear that they would appeal. Bah.

  • 51. brandall  |  July 25, 2014 at 5:42 pm

    Bondi filed a motion to appeal in both cases within one hour of the decisions being issued. She filed this one in like 40 minutes. I just didn't post it because it seemed redundant.

  • 52. sfbob  |  July 26, 2014 at 10:02 am

    Bondi's appeal was probably all typed out; she was just waiting around for the opinion to be issued, then hit "submit."

  • 53. ebohlman  |  July 25, 2014 at 5:14 pm

    Money quote (p.27): "The right to marry would be meaningless if it did not honor the choice of two consenting adults to select each other as spouses. A chosen spouse cannot be substituted with any other person. People are not fungible."

  • 54. bythesea66  |  July 25, 2014 at 5:27 pm

    Grasping at straws and being insufferable assholes while they do it.

  • 55. sfbob  |  July 25, 2014 at 5:37 pm

    Yeah that one was just plain weird and you can almost feel the sarcasm involved in Judge Zabel's use of the word "unique." If you want to prevent the spread of HIV wouldn't you want gay male couples to marry each other and not marry women who could become HIV-infected as (I really detest this expression) "innocent victims?"

    It also denies the reality that HIV is transmitted through heterosexual intercourse and that supposedly faithful husbands can still bring home a variety of STIs. I don't think anyone believes that one of the purposes of marriage is to prevent sexually-transmitted illnesses. Particularly when the so-called "traditional" model of marriage not infrequently was understood to countenance a certain amount of straying on the part of the husband (but not on the part of the wife).

  • 56. brandall  |  July 25, 2014 at 5:48 pm

    She stated in the beginning of her decision that she did not need to respond to amici. But, to your point, she must have spent days writing responses to their insane positions. She handed a lot of ammunition to Equality FL and other organizations to use in the media. I applaud her for taking the extra time to do this. Otherwise, these jokers could claim they were 100% ignored (what I would have done, but that is why I should not be a judge).

  • 57. RQO  |  July 25, 2014 at 8:23 pm

    Very good point. She obviously "gets" the politics of these groups lobbying legislators.

  • 58. MichaelGrabow  |  July 25, 2014 at 6:47 pm

    I regularly look at the pictures on Instagram under the hashtag marriageequality and one was posted two hours ago that says "Victory in Puerto Rico". Am I missing something?

  • 59. BenG1980  |  July 25, 2014 at 7:00 pm

    If this is the image you saw, it refers to Florida ruling at the bottom, but I can't fully explain the logic behind it other than perceived geographic proximity. I don't think you've missed anything.

  • 60. MichaelGrabow  |  July 25, 2014 at 7:04 pm

    That is it indeed!

    I'm glad I wasn't just clueless, thanks!

  • 61. davepCA  |  July 25, 2014 at 7:10 pm

    Huh? Well sure, that would be great if that were true about Puerto Rico, but what the heck is that Instagram thingy supposed to mean? I don't get it.

  • 62. ebohlman  |  July 25, 2014 at 7:21 pm

    From what I can see on Twitter, it appears to be a false alarm.

  • 63. bythesea66  |  July 25, 2014 at 7:25 pm

    I'd love to hear that we won in PR today too, but I assume it is a weird mistake. Please let me be wrong though.

  • 64. RemC_in_Chicago  |  July 25, 2014 at 8:59 pm

    It seems to have been an error. Apparently, AFAR reacted as if today's Miami-Dade ruling impacted the district, which they also thought included P.R.

  • 65. BenG1980  |  July 26, 2014 at 8:18 am

    Do you mean impacted the federal circuit? Because that still doesn't make any sense. Puerto Rico is in the 1st Circuit and Florida is in the 11th.

  • 66. RemC_in_Chicago  |  July 26, 2014 at 10:03 am

    Right. That was part of their error.

  • 67. SoCal_Dave  |  July 25, 2014 at 8:37 pm

    "The Court, therefore, foresees a day when the term “same-sex marriage” is viewed in the same absurd vein as “separate but equal” and is thus forsaken and supplanted by ordinary “marriage.”
    Rose, the judge is speaking your language!!

  • 68. RnL2008  |  July 25, 2014 at 11:21 pm

    Finally…….someone has listened to little old me……thanks SoCal_Dave:-)

  • 69. ebohlman  |  July 26, 2014 at 7:15 am

    Well to be fair, Judge Jones said pretty much the same thing in the PA decision.

  • 70. RemC_in_Chicago  |  July 25, 2014 at 9:03 pm

    It almost seems as if, after reading their ridiculous and irrational briefs, she deliberately gave them time to speak during the hearing—knowing what was coming—so that she could a) give all sides an opportunity to speak so there could be no accusations of bias (she just about says as much in her ruling) and b) give them plenty of rope with which to hang themselves. What's jaw-dropping is the automatic response from one of the opponents, going on and on about the activist judge—either a) he didn't read and/or comprehend her ruling or b) he's visiting from a parallel universe and therefore is incapable of fully comprehending.

  • 71. Zack12  |  July 25, 2014 at 10:51 pm

    There's option C and it's the same thing some of my old bigoted relatives had when laws targeting blacks started getting overturned.
    They simply can't accept that personal dislike or moral disapproval aren't valid reasons to keep unjust laws in place.

  • 72. RemC_in_Chicago  |  July 26, 2014 at 6:58 am


  • 73. Florida Marriage Equality&hellip  |  July 26, 2014 at 5:47 am

    […] Equality on Trial reports […]

  • 74. Florida Marriage Equality&hellip  |  July 26, 2014 at 6:30 am

    […] Equality on Trial reports […]

  • 75. Sagesse  |  July 26, 2014 at 6:37 am

    For a Saturday morning. And definitely read the comments.

    GOP pollster Luntz to Heritage Foundation's Anderson: 'Gay marriage is harmless' [Jeremy Hooper, Good As You]

  • 76. Steve  |  July 26, 2014 at 6:37 am

    Encouraging monogamous relationships actually cuts down on STDs.

  • 77. sfbob  |  July 26, 2014 at 10:00 am

    But only among heterosexuals, apparently.

  • 78. brandall  |  July 26, 2014 at 3:12 pm

    Staying Fundamental Rights – Something Needs to Change Now and Not June, 2015 [Part 1 of 2]

    I want to change my login from Brandall to StayRanter.
    I’ve tried to be as brief here as possible, but I hope you will take a few minutes to hear me. I am getting more angry and upset at reading all the personal stories about how gay stays are hurting couples with illnesses and hospital visits, widows who can’t collect benefits, and parents who can’t raise their children as legal couples, just to name a few. The other day there was a story about a couple who’ve been together for 55 years and all they want at 81 years old is to be married before one of them passes away. I know many, if not all of you, feel the same way.

    A fundamental right is being violated, not some company fighting a logo trademark patent infringement or a disagreement over the meaning of one word in a lumber contract.

    When it was just the Kitchen decision, then OK, that was just one case and one stay. But then there were 5, then 10, then 25 and now 28 winning cases. 28 concurring rulings in 7 months and 5 days since Kitchen. We are in unchartered jurisprudence waters as some 28% of the U.S. population is currently under a gay stay. Never in the history of all the cases brought before the Supreme Court has a single fundamental rights issue been based on 28 concurring wins. Nothing even close to 28, maybe 5 in Loving or Brown.

    This bears tipping the hat to our ME organizations, proponents with their dollars and volunteer assistance almost simultaneously launching cases in over 30 states. It is the groundswell in the last 5 years of strong support from the younger generations, celebrities, “evolving” politicians, and some church organizations. Most importantly, the “will of the voters” in hundreds of polls have mostly reversed themselves in support of ME at a societal pace never seen in modern history. But even our wonderful ME organizations are just going along with the gay stays. "We won"…We have not won until same-sex couples are actually being married. So, acknowledge the great progress, but don't declare you won. 28 court cases state "A fundamental right is being violated."

    "That’s the way the legal system works.” "The Supreme Court wants to have the final say.” "We just have to wait until June, 2015." Really? Not OK. A fundamental right is being violated. Human beings are being harmed for no good reason.

    Our legal system says you can violate a fundament right when the party requesting the stay of an injunction bears the burden of showing that the circumstances justify the exercise of that discretion. Those circumstances are:

    (1) the likelihood of success on the merits – Kitchen, the first case. OK, no trend and no understanding of the likelihood of success. 28 concurrent cases at the state and federal levels? The likelihood of success is massively impossible. This is truly getting beyond ridiculous as the growing snowball of cases now just cite the previous cases. SCOTUS now can’t reverse these unless they rewrite the 1st and 14th Amendments. And I now even doubt it can be a 5-4 decision. He might go kicking and screaming, but all Scalia could say is “I warned the court this would happen way back in Lawrence.”

    (2) the threat of irreparable harm if the stay is not granted – In Colorado, both Judges Moore (“This court is not some modern haruspex, skilled in the art of divination")
    and Hartman are not drinking the gay stay Kool-aid. I’ll quote Judge Hartman, "The State has offered no additional support since this Court’s ruling two weeks ago that the same sex marriage licenses issued in Boulder County (or Denver and Pueblo Counties for that matter) have caused any harm to the State whatsoever, let alone irreparable harm…."The State claimed “chaos” would ensue if the Court did not bar Clerk Hall from issuing same sex marriage licenses. “Chaos” means “complete confusion and disorder.” Merriam Webster, The State has simply offered no evidence of any confusion or disorder resulting from same sex couples obtaining marriage licenses in Boulder County."

    (3) the absence of harm to opposing parties if the stay is granted – documented in 28 cases.

    (4) the risk of harm to the public interest – [While the public has an interest in the will of the voters being carried out, the public has a more profound long-term interest in upholding an individual's constitutional rights." Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012).

    Circumstance #1 was the only thread to hold onto for granting a stay in December, 2013. But, not now. #2 could have been argued an issue if #1 didn’t now have 28 concurrent cases. #3 was never an issue since most cases were decided on the undisputed, submitted facts in summary judgements. #4 is established in constitutional case law.

    NOTE: Please place any welcomed replies under the next comment below.

  • 79. brandall  |  July 26, 2014 at 3:14 pm

    Staying Fundamental Rights – Something Needs to Change Now and Not June, 2015 [Part 2 of 2]

    Why wait until June, 2015? Just for the traditional end-of-the-session “big announcements” drama afforded to SCOTUS? Here is the courts 2013 fastest and slowest decision stats:

    Cert to Opinion – Fastest 127 days, 4.25 months, (Slowest 500 days, 16 months)

    Since a fundamental right is being violated, the first SCOTUS conference is Sept, 29, 2014 and SCOTUS could have a decision by Dec 31, 2014.;That would be 12 months from the Kitchen decision.

    I want to see our ME organizations stop treating gay stays as acceptable and status quo. I want to see our ME organizations going to the media and saying gay stays are not OK. I want someone to pay for ads in the Washington Post and the New York Times saying, “SCOTUS, a fundamental right is being violated. Citizens are being harmed. Do your job NOW.” I want to see comments under every ME court decision media article saying gay stays are not acceptable. I want to see Maddow, Farrow, Cooper, et al covering gay stays now. I want to see more clerks issuing licenses based on their conscious and understanding of violating a fundamental right.

    I would appreciate any comments from my EOT friends on what else we or I could do other than waiting for June, 2015.

    /endrant of StayRanter (aka Brandall)

  • 80. hopalongcassidy  |  July 26, 2014 at 4:20 pm

    Sounds good to me, but since the SC is about the most insular private club on the planet and putatively ignores public opinion, there probably is nothing to be done. Which of course sucks.
    [on edit]…you meant "conscience" after 'based on their', I believe. 😉

  • 81. brandall  |  July 26, 2014 at 4:24 pm

    I know, but I can't keep just watching this. Being here on EoT is an amazing learning experience. But, I now need to do more than just understanding how the law and ME works.

    And thanks for pointing our the spelling error. I can't fix it now. Nice feature needed for Intense Debate.

  • 82. ragefirewolf  |  July 27, 2014 at 8:14 am

    Thank you for all the effort you put into your post, Brandall. You well-stated something a lot of us are struggling with.

  • 83. Corey_from_MD  |  July 27, 2014 at 10:04 am

    @brandall, we understand that you want to vent your frustrations. The good news is that you live in California and ME exists. Appreciate that for the time being.

  • 84. hopalongcassidy  |  July 27, 2014 at 4:38 pm

    uh, it exists in MD too…..what was your point there?

  • 85. Corey_from_MD  |  July 27, 2014 at 9:30 pm

    To anyone who poorly read my comment, it was directly personally to @brandall, who is a resident of the state of California. He is also the author of the original comment. It was just a comment for peace of mind and celebration of the fact that @brandall's stae has won ME. This comment was no directed anyone else. As the saying goes, " it is not always about you…"

  • 86. MichaelGrabow  |  July 26, 2014 at 4:21 pm

    I love all of this.

    It would be pretty incredible to see what would happen if dozens and dozens of clerks across the remaining 31 states started issuing licenses all at the same time.

  • 87. scream4ever  |  July 26, 2014 at 5:50 pm

    I agree with this wholeheartedly. We should find clerks in states with laws struck down but stays having been issued to lead this charge like Hall has.

  • 88. brandall  |  July 26, 2014 at 6:19 pm

    Florida would be an interesting and possible place to start. There has been a constant drumbeat of city councils (read county attorneys) voting to support ME in the last several months. They are in the southern part of the state (read tourism), but what the hell, it's a place to start. We need to find out if they report directly to the AG or can make their own independent decisions like CO. That should be our starting point…which states allow a total or somewhat degree of independance from state AG oversight. Knowledgeable EoT'ers…join in on this one.

  • 89. Zack12  |  July 26, 2014 at 8:31 pm

    The only thing that it would do in Florida is speed the process up.
    For any case, when an appeal is made from either side, a ruling is automatically stayed, period.

  • 90. RemC_in_Chicago  |  July 26, 2014 at 4:42 pm

    Obviously, your points are well-taken. Our current successes began because enough people stood up and insisted that the status quo was a violation of fundamental rights. They said that the gay community was entitled to marriage equality and nothing was impossible. Maybe the same attitude needs to take over in a campaign to refute that gay means stay. Hopalongcassidy is right that the Supremes have their process and are not subject to popular outcry. But, given your excellent argument about the evolution of these unanimous rulings, I do wonder why the stays in the more recent cases have had to be necessary, particularly when the judges were clearly wrestling with the issue—Idaho, Colorado, Wisconsin…I'm not a lawyer so I'm not in a position to venture guesses as to why the stays aren't being fought. Maybe their resources aren't deep enough to tackle the stays on top of everything else? Why not turn your post into a letter and offer it up for signatures? The letter could be directed to Freedom to Marry, HRC, ACLU, and Lambda Legal. I'd be more than happy to sign it.

  • 91. brandall  |  July 26, 2014 at 5:19 pm

    Yes! My point is "the likelihood of success" has significantly (and measurably) changed since Dec, 2013.

    Wow, thank you for wanting to join in. I will gladly take you up on your offer. I need to rewrite my legal commentary into something a bit more succinct and to the point.

  • 92. ragefirewolf  |  July 27, 2014 at 8:16 am

    I would sign as well!! I hate these stupid stays!

  • 93. BenG1980  |  July 26, 2014 at 5:49 pm

    I completely agree! brandall, where do we sign?

    (One note, I don't think Alito was on the court in 2003 when Lawrence was decided. Perhaps you meant Scalia.)

  • 94. brandall  |  July 26, 2014 at 5:58 pm

    Another thank you for joining in!

    My brain saw Scalia and my fingers typed Alito. Palm to forehead. Since there were no comments below that post, I corrected it. This is where all of you can help me to insure whatever facts I write, they are correct. I will also write directly to the MSNBC and CNN gay or gay friendly folks. It's the least I/we can do.

  • 95. Lynn_E  |  July 27, 2014 at 3:29 am

    Easy mistake. Apart from the year of their appointment, they are virtually interchangeable.

  • 96. RemC_in_Chicago  |  July 27, 2014 at 8:03 am

    Sorry, brandall, I forgot to mention the Alito/Scalia swap. But interestingly enough, I exchanged tweets with Ryan Anderson yesterday, asking him if he had ever analyzed any of the rulings point by point per logic rather than belief. He responded by accusing me of being uncivil, which caused a bunch of his followers to forward his tweet—-I didn't believe nor had I intended to be uncivil and said so, but stressed that my serious question that had gone unanswered (which tells me he either hasn't read any of the rulings or has & knows there isn't a way to refute them logically). He sent me a link to something he'd written for the Heritage Foundation (telling enough) and wrote, "please read my book, the one Justice Alito cited twice." Need I say anything more?

  • 97. Zack12  |  July 27, 2014 at 1:13 pm

    They view you asking them to base their options with facts as being uncivil.
    And I LOL whenever Anderson brings up the fact the LOSING side mentioned his book.

  • 98. hopalongcassidy  |  July 27, 2014 at 8:10 am

    That is why many of us just refer to either/or/both as Scalito…

  • 99. Ragavendran  |  July 27, 2014 at 1:04 pm

    That's another thing that has baffled me for a while. Stays denied are being vigorously fought until SCOTUS, but stays granted are not being appealed at all by plaintiffs. (The only exception has been the Seventh Circuit in the case of one terminally ill couple.)

  • 100. SeattleRobin  |  July 27, 2014 at 7:07 pm

    I suspect it's a matter of energy and resources. Most of these cases are being funded by donors to the various organizations. When the SCOTUS has made it clear they're going to stay everything that doesn't have standing issues (Oregon and Pennsylvania) it would be wasteful to spend the money and time appealing anyway. We get on the AGs for wasting tax payer money in fighting a losing battle. Wasting our own community money isn't any smarter.

    Early in the going fighting stays made sense. But now it's tilting at windmills.

    That doesn't mean I don't agree with brandall. I think it's a good idea to be making a lot of noise in other ways.

  • 101. Ragavendran  |  July 27, 2014 at 10:00 pm

    But even early on, there wasn't one single attempt to fight a stay, even at the district court level. And I agree fighting state-wide stays on marriages is futile in light of Supreme Court's stay in Kitchen and Evans. But there were other kind of stays that differed from the Utah situation markedly and still they weren't being fought. Does anyone here think the Windsor majority that spoke so eloquently about the harm to the children of same-sex couples would have a problem overturning the stay of a preliminary injunction just to recognize the out-of-state marriage of just one couple who had a newborn baby during their no-stay period, and then a stay was granted, instantly stripping away the parental rights? Absolutely not. And yet I don't understand to this day why the Tanco plaintiffs never appealed the Sixth Circuit's stay to the Supreme Court.

  • 102. Lynn_E  |  July 27, 2014 at 10:46 pm

    SCOTUS spoke eloquently about harm to the children, yet issued a stay in Evans. The stay in Kitchen could easily be explained, since that case was a Summary Judgment. Evans was not. A rather conservative District Judge ruled, and the 10th Circuit upheld his ruling. SCOTUS has sent a very clear message to the lower Courts; they will decide this issue, not the lower Courts. Any moves to the contrary will be met with a stay, and if that isn't issued below, it will be issued from the highest Court. In the end, our rights (and those of our children) are secondary to political expediency.

  • 103. Ragavendran  |  July 27, 2014 at 11:10 pm

    Colorado's Judge Moore would disagree that SCOTUS sent a "very clear message" with its stays 🙂

    You raise good points with respect to how Evans and Tanco are similar, but I want to point out how they are different here and specifically, how arguments in favor of a stay in one are much weaker than the other. The Evans stay was state-wide (and therefore there is the argument of some non-negligible harm to the state if the decision were to be overturned later) and pertained to those marriages that were performed in-state during the window before SCOTUS issued its Kitchen stay. However, nobody disputes that the Tanco plaintiffs (involving just two couples, as it wasn't a statewide injunction, and so the harm to the state is negligible if the decision is overturned later) were legally married before they moved to Tennessee. From the beginning, the question was recognizing their legally out-of-state valid marriage in Tennessee. Not so in Evans.

    I'm not saying children are not harmed by the Evans stay. What I'm saying is that logically, argument-wise, it is so much more harder for me to see how any potential harm to the state of Tennessee due to recognizing the marriage of just two couples could outweigh the real harm to the child of the Tanco couple. (In other words, had the Supreme Court refused to lift the Tanco stay, then of course it must follow that they grant the Evans stay, but not vice versa.)

  • 104. Lynn_E  |  July 28, 2014 at 1:42 am

    But Judge Moore stayed his ruling, pending the issuance of the 10th Circuit's mandate in Kitchen. The 10th will not issue the mandate until 90 days have passed, to give Utah the chance to petition to SCOTUS. If the petition is filed, then the mandate will be held pending resolution or denial of cert. So, in effect, Judge Moore, by his stay, acknowledges that his ruling won't be final until Kitchen has been considered by SCOTUS. Tanco would not have any legal effect, save for the couples involved. Surely you can't expect every couple to initiate a separate suit to replicate Tanco.

  • 105. Ragavendran  |  July 28, 2014 at 1:55 am

    Judge Moore only stayed his decision for a month, a temporary stay. You should read his haruspex quote where he says explicitly that to the extent that SCOTUS was sending a message to lower courts, it was far from clear. (He stayed further proceedings in the case pending the issuance of a mandate from the Tenth Circuit in Kitchen.

    As for Tanco, yes the legal effect is for the one couple, but if it had gone to SCOTUS and they had lifted the stay, that is a huge psychological win for our side. And your point about it not being feasible for every single couple to file their own suit cannot be grounds for not lifting the stay for the Tanco couple. That is a separate issue in and of itself that the district court issued a narrow preliminary injunction to begin with.

  • 106. Lynn_E  |  July 28, 2014 at 2:47 am

    You are correct about the stay, my apologies. EoT's article (first paragraph) was the source for my statement that the hold was ordered until Kitchen had been decided. I had read the haruspex comment during the previous week, but the timeframes given in the initial paragraphs are what stuck in my head.
    I doubt SCOTUS would have intervened in Tanco. They made a great stand in Windsor, but I don't believe they would apply the philosophical stand to a single couple while delaying it on a statewide level. Hopefully, all of these cases will be moot in the near future. I much prefer historical facts, you can skip ahead and discover how it turns out without all the waiting.

  • 107. Ragavendran  |  July 28, 2014 at 3:43 am

    For sure there's going to be a book or few that's going to be written about this when it's all over 🙂 Perhaps a documentary or two as well. I agree there's a sense of ease when you're looking at things that have happened as opposed to waiting for things to happen.

  • 108. SeattleRobin  |  July 28, 2014 at 6:57 am

    I don't understand what you mean about not a single attempt to fight stays even at the district court level. Our current situation is due to the stay in Kitchen being fought all the way to the supreme court. I can't think of any stay at a district court level where the plaintiffs didn't argue like hell against stays. And because there are so many cases I've lost track of which ones, but some of the fight against stays went to the circuit court level.

    It became clear that despite defendants having very weak arguments for stays, it didn't matter, we weren't going to win those fights. Sometimes knowing when to not fight and save your energy for the bigger battle is the best thing you can do. Kinda like Christie recognizing he was beat, and not appealing to the NJ supreme court.

  • 109. Ragavendran  |  July 28, 2014 at 7:21 am

    If you follow the conversation above with Lynn_E, I meant none of the plaintiffs appealed stays (except the terminally ill Indiana couple). Only the defendants appealed denial of stays. And I also talked about how it probably wouldn't have been a futile attempt to fight some stays that were not statewide, as (IMHO) they are sufficiently different from the apparently precedent-setting SCOTUS stays, e.g., Tanco.

  • 110. brandall  |  July 26, 2014 at 5:13 pm

    Lyle published Judge Moore's questioning the stays. "The rule of law demands more." I think I'll go design a "gay ≠ stay" logo as a starting point.

  • 111. Ragavendran  |  July 26, 2014 at 9:31 pm

    I believe it is extremely rare, but here's something to ponder for those cases that haven't yet been decided by an appellate court:

    (Since the Supreme Court has so eagerly doled out gay stays to maintain the status quo, mustn't it follow that they think this is an issue of great national importance that the traditional four-factor test doesn't apply? So perhaps the "message" they're sending is – petition us for cert before judgment and we'll take it up and rule soon!)

    A petition for certiorari before judgment, in the Supreme Court of the United States, is a petition for a writ of certiorari in which the Supreme Court is asked to immediately review the decision of a United States District Court, without an appeal having been decided by a United States Court of Appeals, for the purpose of expediting the proceedings and obtaining a final decision.

    Certiorari before judgment is rarely granted. Supreme Court Rule 11 provides that this procedure will be followed "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." A writ of certiorari before judgment may be granted only in federal cases, and is not necessary in those cases where a statute authorizes a direct appeal from a District Court to the Supreme Court.

    Well-known cases in which the Supreme Court has granted certiorari before judgment and heard the case on an expedited basis have included Ex parte Quirin (1942), United States v. United Mine Workers (1947), United States v. Nixon (1974), Dames & Moore v. Regan (1981), Northern Pipeline Co. v. Marathon Pipe Line Co. (1982), and United States v. Booker (2005).

  • 112. cpnlsn88  |  July 27, 2014 at 3:09 am

    The quickest way to end all of this is to deny Cert in the Utah case and from that point on deny any further stays and to take up any Circuit of Appeals that rules differently. The justification for denying Cert is precisely the unprecedented run of District and State wins post Windsor and the sheer fact that Windsor has turned out much more powerful than thought at the time. The only justification I can see for SOTUS taking up and hearing these cases is to resolve legal doctrines like heightened scrutiny, whether marriage bans discriminate on grounds of gender and so on. It would clearly be beneficial to have clear resolution on heightened scrutiny but I am not sure SCOTUS will see it that way and I think SCOTUS would in any case not wish to strike down marriage bans due to heightened scrutiny.

  • 113. Ragavendran  |  July 27, 2014 at 7:41 am

    Well, you are correct in what SCOTUS could now do on its side to end it quickly. I was offering a possible (even if only theoretical, and perhaps now too late) solution for what could be done from our side. If SCOTUS grants cert in Kitchen, other appeals that haven't yet been ruled could petition for cert before judgment to possibly be batched together with Kitchen without waiting for the various appeals courts to rule.

    But the likely scenario is that SCOTUS will hang on without deciding on cert in Kitchen until at least the Sixth, Seventh and Ninth circuits rule on the other appeals (since those appeals will have been heard by then), and if they are unanimous in affirming lower courts (which I think is probable), might decide to not get involved after all and deny cert. And then, when the Fifth circuit (almost surely) rules against us sometime next spring/summer, then they will take up that case and declare marriage equality nationwide in 2016.

  • 114. bythesea66  |  July 27, 2014 at 7:51 am

    Were I to wager it would be that SCOTUS does grant cert in Kitchen to be honest.

  • 115. cpnlsn88  |  July 27, 2014 at 10:06 am

    I agree with this prognostic. If, however, SCOTUS had denied cert in Kitchen I would anticipate that the issue of stays would then return to the traditional four part test, which we would win in most cases. In these circumstances (post a denial of cert) I could not conceive of the 5th Circuit ruling against us because most of their material would by then have vanished (e.g. Baker).

    On the other hand the denial of cert in itself would probably be like a damn bursting with marriage clerks unilaterally taking evidence from the denial of cert and the fundamental nature of the right being denied. The thing would be over quite soon. SCOTUS may want this outcome but may think it a little too chaotic and for that reason take the case.

    All I can say is that if the Prop 8 case was too early before SCOTUS then it now seems well past time that this matter is finally resolved. And of course there are real world consequences of what is happening in people's lives whose marriages are not recognised or who are prevented from marrying. The longer this lasts the more it tends to a travesty of true justice for the people whose basic rights are being held in abeyance by these SCOTUS induced stays.

  • 116. Bruno71  |  July 27, 2014 at 12:42 pm

    "All I can say is that if the Prop 8 case was too early before SCOTUS then it now seems well past time that this matter is finally resolved." I very much hope you're right on that, but I fear 2 years isn't enough time for them. They were having an inane conversation about how interracial marriage has been around for hundreds of years, and same-sex marriage only since 2000. Do we really think these fuddy-duddy jurists will think 2 years is enough? Sure, it's more than enough, but will they think so? I'm doubtful.

  • 117. BenG1980  |  July 27, 2014 at 1:18 pm

    Unfortunately, that's not exactly true. Denial of cert would not overrule Baker because no binding precedent is created by the denial itself. The 5th Circuit would still have to independently determine that Baker no longer controls due to Romer, Lawrence and Windsor.

  • 118. SeattleRobin  |  July 27, 2014 at 7:28 pm

    I think the point was that if cert is denied then SCOTUS no longer thinks Baker is binding, since that's one of the main prongs of defense. It's not the same as Baker being explicitly overturned, but the 5th would have a terrible time trying to declare Baker still precludes a challenge if the high court ignores it completely in an identical case.

  • 119. BenG1980  |  July 27, 2014 at 7:49 pm

    Oh yes, I agree it would undercut that argument just like every post-Windsor marriage equality decision in our favor undercuts that argument. Either way, the 5th Circuit will have a terrible time trying to declare that Baker precludes a challenge, but I think the denial of cert would be much easier to ignore for the reason I noted above.

  • 120. bythesea66  |  July 27, 2014 at 7:46 am

    I have the feeling SCOTUS would deny such a request though.

  • 121. BenG1980  |  July 27, 2014 at 8:50 am

    Even if the Court were to grant cert immediately upon its return from summer recess, it's still very unlikely we would get a decision before June 2015, right?

    I agree with cpnlsn88 above that the fastest route to marriage equality is for SCOTUS to swiftly deny cert in the cases we win, and then wait to grant it in the first case we lose (if that ever even happens!).

  • 122. BenG1980  |  July 27, 2014 at 9:28 am

    Why would anyone on our side want to appeal a winning decision? An appeal of a losing decision that could have borne fruit sooner is Citizens for Equal Protection v. Bruning, but that was decided by the 8th Circuit in 2006 prior to Hollingsworth and Windsor and, at the time, was seen as being too risky.

    I think it's generally accepted that until Windsor opened the door for this new wave of victories, few on our side wanted to take a chance with SCOTUS. Recall, Boies and Olson were roundly criticized by many when they originally filed Perry v. Schwarzenegger in 2009. Therefore, while I agree that all of these stays have gotten ridiculous in light of their sheer number and unanimity, the pro-equality side took the same cautious approach in the past.

  • 123. Ragavendran  |  July 27, 2014 at 9:42 am

    Oh, in the context of my first paragraph, I was imagining SCOTUS on one side and the rest of the country on the other. So "our" collectively meant all parties to the case. And if the point is that most state officials are not too eager to get this issue resolved quickly by trying to petition for cert before judgment, then perhaps that is a valid point.

    I should note that SCOTUS has once before denied cert before judgment in Sevcik, a day after they decided Hollingsworth, but that was likely because in light of Hollingsworth, the Coalition (which petitioned for cert before judgment, not Sandoval) lacked standing. Perhaps it is a stretch, but part of the Court, recognizing this as an issue of great national importance, might have been willing to grant cert before judgment if Sandoval had been the petitioner there.

  • 124. BenG1980  |  July 27, 2014 at 9:54 am

    Hmmm, interesting. Since Sandoval was still defending the ban at that time (i.e., it was pre-SmithKline) you're right that standing wouldn't have been an issue in the underlying case, but the petitioners themselves (the Coalition) would have lacked standing and the Court had literally just tied its own hands in Hollingsworth. Also at that time, however, Justice Ginsburg was telling people that Roe v. Wade had been decided prematurely and she didn't want to make the same "mistake" with marriage equality. Therefore, even if Sandoval had been the petitioner, it's not clear that SCOTUS would have acted any differently and issued the writ of certiorari.

    (Off topic, but cool article about Justice Ginsburg:… )

    Again, it wasn't until this new wave of unanimous pro-marriage equality decisions started in late December 2013 (just seven months ago) that it even began to seem inevitable that we would ultimately win. It's hard to overstate the remarkably unprecedented speed, number and impact of all of these landmark victories.

    To reiterate, I absolutely hate the stays because I think they're illegal (violate the four-part test), immoral (hurt thousands of couples and their families every day for no legitimate reason), and unconstitutional (deprive citizens of due process and equal protection). I just don't see a good procedural way to force any sort of expedited review of the merits by SCOTUS at this point. In fact, there isn't any advantage we would gain by doing so. We just need them to STOP THE DAMN STAYS!!!

    We neither need nor want the Supreme Court to get involved in merits of the cases we've already won. Our side should actively oppose the cert petitions that will be filed by Utah and Oklahoma, as well as those filed by any other states that lose in lower courts. Oregon and Pennsylvania stand as perfect examples of quick, positive outcomes.

    Finally, I think Texas is currently the only state that has lost in federal district court and appealed but hasn't had oral argument scheduled by its respective circuit court. Since Texas opposed expedited review of De Leon v. Perry by the 5th Circuit, I doubt they'd be inclined to file a petition for certiorari before judgment. I imagine the same would hold true for any losing state that actually opposes marriage equality. Right now our opponents just want to drag the process out as long as possible to delay the inevitable result.

  • 125. brandall  |  July 27, 2014 at 5:36 pm

    I agree with your thoughts (and others here) on not being able to expedite an SC ME decision. My quest is to knock down the stays only. But, speeding up the SCOTUS decision can't hurt since I believe they all made up their minds on ME after DOMA.

    We are in unchartered, unprecedented waters with 28 decisions, The 10th left the SC issued stay in place even though the SC stay was specifically in place only until the 10th issued a decision. The Kitchen stay can now be appealed to SCOTUS. I am specifically referring to the stay, not the case itself. There would seem to be only 4 scenarios: 1) denied with no comment, 2) denied with comments (Judge Moore would be happy and perhaps those comments allow some forward movement), 3) granted with no comment, 4) granted with comments. If all of our commentary here is correct, they would have a hard time now justifying a denial. After all, they wrote their own rules on this topic.

  • 126. BenG1980  |  July 27, 2014 at 5:44 pm

    I agree with all of that except for the premise that there will inevitably be a SCOTUS decision on the merits. There will be no need for a decision on the merits if we keep winning.

  • 127. brandall  |  July 27, 2014 at 5:56 pm

    OK, please go down this path with me on your thoughts. SCOTUS will never issue cert. The 5th comes in for ME in 2017 (and that's moving fast for them at this rate) and all the other CA's ruled in favor of ME. But, they have to then deny the Kitchen stay at some date or else we are in this circular 10th v SCOTUS stay situation. And, all the other court stays are citing the Kitchen stay. When does SCOTUS end the Kitchen stay?

  • 128. BenG1980  |  July 27, 2014 at 6:11 pm

    SCOTUS never ends the Kitchen stay because it's no longer the SCOTUS stay. The current stay in Kitchen is the 10th Circuit stay that was put in place at the same time as the decision. The 10th Circuit will lift its stay if SCOTUS denies cert.

    "In consideration of the Supreme Court's decision to stay the district court's injunction pending the appeal to our circuit, we conclude it is appropriate to STAY our mandate pending the disposition of any subsequently filed petition for writ of certiorari."

  • 129. brandall  |  July 27, 2014 at 6:20 pm

    Got it. In this scenario, SCOTUS needs to deny cert in Kitchen. They could do that anytime from 9/29 until the end of session in June. Yuck. More reason to push the illegality of the stays themselves.

  • 130. BenG1980  |  July 27, 2014 at 6:30 pm

    The beginning date depends on how long Utah decides to wait before filing its petition for cert, how much time the respondents take for their response, whether Utah files a rebuttal, and how quickly the case gets distributed for conference by SCOTUS. If Utah takes the full 90 days to file its petition, the case probably wouldn't be distributed until early November.

    Another catch is that a petition for cert can remain pending indefinitely — even beyond the end of a term — until the Court decides what to do with it.

    I believe that the only SCOTUS-imposed stay currently in place is in Herbert v. Evans, the Utah "interim marriage" recognition case. The 10th Circuit stayed Kitchen and Bishop, the 9th Circuit stayed Latta, the 7th Circuit stayed Baskin, and maybe the district courts stayed the rest … ? My understanding is also that all of the stays are stays pending appeal except for the one-month stay in Burns v. Hickenlooper out of Colorado.

  • 131. Ragavendran  |  July 27, 2014 at 10:06 pm

    I am a little confused here. SCOTUS's stay order explicitly said that their stay (which supersedes all other lower court stays) will last until the Tenth Circuit disposes off the appeal, meaning until a mandate is issued (NOT just until the Tenth Circuit issues an opinion). For example, if the Tenth Circuit issues the mandate today, then SCOTUS's stay ends today. So I think it is still SCOTUS's stay at the higher level, which is being enabled by a nested stay of the mandate by the Tenth Circuit. (Perhaps this is a "technical correctness issue" because for all practical purposes, the Tenth Circuit now controls when SCOTUS's stay ends.)

  • 132. StraightDave  |  July 27, 2014 at 11:48 pm

    "the Tenth Circuit now controls when SCOTUS's stay ends"

    I don't see how the 10th controls the stay, at least not yet. If the 10th is constrained from issuing its mandate until the 90-day petition window expires, and a petition further delays the mandate, then that puts the ball in SCOTUS's court until SCOTUS disposes of this by its own ruling or.denying cert. I don't see how the 10th can alter that course of events on its own. They have no way to do anything until SCOTUS makes a move.

    But maybe I've missing something here. If the 10th could lift the stay now, don't you think they would?

  • 133. Ragavendran  |  July 28, 2014 at 2:10 am

    I may be wrong, but my understanding of this stems from FRAP Rule 41(b) which says:

    The court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time.

    So the Tenth Circuit's decision to stay the mandate pending a possible filing of a petition for writ of certiorari to SCOTUS and if filed, SCOTUS's disposition of said writ was something that the judges ordered using their discretion (because they got slapped down by SCOTUS in January) not because they were forced to. And SCOTUS's stay expires as soon as the mandate issues (which would satisfy their language of "final disposition by Tenth Circuit"), whenever that may be.

    So the Tenth Circuit would have been perfectly free to have issued its mandate by now. If the Tenth hadn't stayed its mandate in its opinion, then Utah would have had to specifically ask the judges in a separate motion to stay their mandate pending a filing of a petition for writ of certiorari with SCOTUS (FRAP 41d). And the Tenth Circuit is under no obligation to grant any such petition. Utah would then have to go to SCOTUS again to force the Tenth to stay the mandate.

    (I guess instead of saying "the Tenth now controls", I should have said, it was up to the Tenth Circuit whether they wanted the mandate to be stayed or not, which controls when SCOTUS's stay ends. And they decided to stay the mandate on their own when they decided Kitchen.)

  • 134. StraightDave  |  July 28, 2014 at 7:46 am

    That was extremely well written, Ravagendran! I love when people try to search for common ground and mutual understanding rather than quibble about nit-picky points. I had been assuming that the 10th had no discretion to issue its mandate immediately. Technically,I might be wrong about that. But I couldn't imagine that either Utah or SCOTUS would let that lie unchallenged for very long. So I guess the 10th could end the current stay, only to be quickly replaced by a new one. They may have decided to just skip the drama.

  • 135. BenG1980  |  July 28, 2014 at 6:57 am

    Your point is well taken that technically both stays are currently in effect and I think else everything you've said above is true, but I don't think that contradicts my point that the 10th Circuit's stay is what's currently holding everything up and it's a mess! lol

    Basically the 10th Circuit co-opted the SCOTUS stay and now the 10th Circuit owns it — that's what I meant by "… it's no longer the SCOTUS stay. The current stay in Kitchen is the 10th Circuit stay …."

    It seems we both agree that but for the 10th Circuit, lesbian and gay couples in Utah and Oklahoma would be able to legally obtain marriage licenses today. (Caveat: Recognition of the licenses likely would be more complicated due to Evans.)

  • 136. brandall  |  July 27, 2014 at 5:14 pm

    Good evening everyone except Ragavendran. Good morning to Ragavendran (I'll be glad when you are back in a nearby timezone).

    I am sincerely overwhelmed by all of your responses, ideas, different points of view, etc. The growing list of stays were an annoyance, but now have me really fired up. Your comments are the confirmation I needed to hear that the gay stays are not just wrong, they have now become illegal actions separate of the overall ME fight. I have spent last night and all of today deep diving into topics you referenced, reading federal case law on stays and sorting through all of the options on where to take this.

    I have a fairly narrow list to what to do and who to contact. I will share this shortly. One other minor item of housekeeping. Normally we all migrate the daily comments to the latest article posted. I'm hoping for a busy week of ME announcements and I'd like to keep the quest for stopping the stays in this current article blog and not migrate it daily. That will keep this discussion to the side so we can comment on the daily happenings.

    Again, thank you everyone.

  • 137. Sagesse  |  July 27, 2014 at 6:28 am

    Governor Cuomo Announces Multi-Agency State Effort to Address LGBT Disparities

    New York becomes first state in the nation with coordinated statewide strategy to improve LGBT data collection

    "Governor Andrew M. Cuomo today announced that New York State is undertaking a coordinated, multi-agency effort to strengthen data collection for lesbian, gay, bi-sexual and transgender (LGBT) New Yorkers. Outlined in the first report by the State’s Interagency LGBT Task Force, this statewide effort to include sexual orientation and gender identity information in data collections will allow the state to better tailor services to meet LGBT needs, ultimately improving the health and lives of thousands of New Yorkers."

  • 138. Bruno71  |  July 27, 2014 at 12:43 pm

    Maybe he should get GENDA passed since he's so friendly with legislature Republican'ts?

  • 139. brandall  |  July 27, 2014 at 6:07 pm

    Scottie or anyone else….Freedom to Marry is reporting 28th wins and EoT is saying 32. Their site currently stops at Paretto v Ruvin, so it seems up to date. Do we know where or what the difference is in this count? Thank you.

  • 140. Bruno71  |  July 27, 2014 at 7:03 pm

    Maybe EOT is counting combined cases like "Brinkman v. Long & McDaniel-Miccio v. Colorado" twice?

  • 141. StraightDave  |  July 27, 2014 at 7:55 pm

    I didn't count them all myself, but I was assuming that EoT may have included various motions rulings going our way (e.g., the OR and PA denials of stay pending intervention, refusing to stop Hillary Hall in Boulder), not just the merits rulings. They are all victories of sorts.

  • 142. Ragavendran  |  July 27, 2014 at 10:45 pm

    A scientific study of disgust (the "eww" factor):

  • 143. hopalongcassidy  |  July 28, 2014 at 6:33 am

    "Stewart says. "They are a little bit more wired to defensiveness in their environment." This is particularly apparent for sexual issues—not just gay marriage but for topics like pornography as well."
    I believe the researchers overlooked something here…'conservatives' are, IMO, more prone to publicly EXPRESS disgust (real or feigned) to others…just as they often make loud vocal efforts to convince others how pious they are…vis a vis the fact that they consume just as much if not more pornography in secret (and engage in most other 'vices') as 'liberals' or any other sociopolitical group.

  • 144. Equality On TrialAnother &hellip  |  August 12, 2014 at 1:37 pm

    […] decision is stayed pending appeal. Two other Florida judges, from Miami-Dade County and Monroe County have also struck ruled in favor of same-sex […]

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