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READ IT HERE: Plaintiffs’ brief in Indiana same-sex marriage appeal in Seventh Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

The same-sex couples challenging Indiana’s same-sex marriage ban have filed their brief in the Seventh Circuit Court of Appeals. State officials appealed from a district court decision striking down the ban.

The appeal consists of three consolidated cases.

You can read the plaintiffs brief here thanks to Equality Case Files:

14-2386 #106 by Equality Case Files

The OPENING brief, from the state, is here:

14-2386 #34 by Equality Case Files


  • 1. brandall  |  July 30, 2014 at 8:40 am

    Scottie's trip to the 6th (and hopefully the 9th) is almost funded. If you haven't had a chance to donate a few dollars, you can read what your donation is for:

    Then click the donate now on any daily article page! He's almost fully funded and it is great to have him in the courtroom as opposed to listening to a tape days later.

  • 2. hopalongcassidy  |  July 30, 2014 at 9:47 am

    Just as a bit of info here's the calendar for the 6th.

    Page 1
    Daughtrey, Sutton, Cook
    Wednesday, August 06, 2014
    1:00 P.M.
    April DeBoer, et al. v. Richard Snyder, et al.
    Eastern District of Michigan at Detroit
    B. Friedman
    In this action seeking to enjoin enforcement of an amendment to the Michigan Constitution prohibiting
    same-sex marriage that was tried to the bench, the defendants appeal the judgment finding that the
    amendment and its implementing statutes violate the Equal Protection Clause and permanently enjoining
    their enforcement. (30 Minutes Per Side)

  • 3. Japrisot  |  July 30, 2014 at 10:18 am

    The Ninth Circuit live streams oral arguments.

  • 4. MichaelGrabow  |  July 30, 2014 at 8:47 am

    South Carolina!

  • 5. brandall  |  July 30, 2014 at 9:00 am

    I think this was a planned protest. Is there confirmation licenses are bing issued?

    Yes, there was a staged event planned and announced yesterday. I just had to find the article.

  • 6. MichaelGrabow  |  July 30, 2014 at 9:06 am

    Oh, I don't think anything is being issued, no.

  • 7. MichaelGrabow  |  July 30, 2014 at 9:17 am

    "Federal courts in Utah, Oklahoma, Virginia, Tennessee, Ohio, Texas and Kentucky have also ruled that bans on same-sex marriage are against the U.S. Constitution."

    I think you may have missed one or two…

  • 8. BenG1980  |  July 30, 2014 at 5:57 pm

    … or three or four or five or six or seven!

    Utah, Oklahoma, Virginia, Tennessee, Ohio, Texas and Kentucky, plus Colorado, Idaho, Indiana, Michigan, Oregon, Pennsylvania and Wisconsin

  • 9. brandall  |  July 30, 2014 at 10:52 am

    SC: Closing the loop on this from this morning. Good and useful press from their attempt to get licenses.

  • 10. brandall  |  July 30, 2014 at 8:52 am

    Newest anti-ME legal tactic is going to be…..STALL. I think yesterday's 4th ruling will be a game changer. The other 28 rulings, the election and a general "we've lost" sentiment is going to change the strategy for those states who are still early in their cases proceedings.

    The remaining states will have to either fight and fund it, give-up or ask for a stay pending cert by SCOUTS. WV and WY are trying this now. On the other side of the fence, hopefully some judges want to be known for clearing the way to ME in their state and will not want to sit on the sidelines until SCOTUS.

  • 11. RnL2008  |  July 30, 2014 at 10:01 am

    The anti-gay folks just CAN'T understand that Baker vs Nelson was NEVER precedent outside of Minnesota and now that Minnesota has ME, it basically makes Baker vs Nelson a moot ruling, as the Justices have ruled…things have changed and because of the way the SCOTUS ruled in Windsor…….Baker is a long lost meaningful nothing!!!

    Just saying!

  • 12. BenG1980  |  July 30, 2014 at 10:12 am

    Rose, that's not exactly true. Summary dismissals by SCOTUS do create precedent and bind courts nationwide. Both the pro and anti marriage equality sides acknowledge this fact. The disagreement centers around the second part of your statement. Our side argues that Romer, Lawrence and Windsor have signaled a doctrinal shift by SCOTUS since Baker that has rendered Baker non-binding.

  • 13. RnL2008  |  July 30, 2014 at 10:26 am

    I would have to disagree with ya Ben. If Baker was precedent then several cases at the beginning of our fight would have NEVER gotten passed it for starters and with regards to California's case, it NEVER applied at all because marriage licenses HAD been issued to Same-Sex couples when the right was acknowledged and then the right was ELIMINATED.

    I believe that Baker was NEVER as important as the anti-gay folks want to believe.

  • 14. BenG1980  |  July 30, 2014 at 10:37 am

    What cases do you have in mind? Citizens for Equal Protection v. Bruning is the only case based on the U.S. Constitution that I can think of, and we lost that one. I believe the first time our argument regarding Baker worked was when Judge Walker ruled in Perry v. Schwarzenegger in 2010. (And in that case, Judge Walker did not even mention Baker in his ruling.)

  • 15. brandall  |  July 30, 2014 at 10:45 am

    LMAO. Is one of your really Boies and the other Olson? How DO you whip off these cases right off the tops of your heads? /IwillNeverCatchUP

  • 16. BenG1980  |  July 30, 2014 at 10:52 am

    Haha. Nope, brandall. We've just both been reading these cases and following this issue for over a decade. Plus this is why my area of concentration in law school was family and juvenile law and why I wrote my final law school paper on Bowers v. Hardwick.

  • 17. brandall  |  July 30, 2014 at 10:54 am

    These are the arguments of serious men (and women).

  • 18. RnL2008  |  July 30, 2014 at 10:55 am

    Obviously we've been either at this a long time or have dealt with individuals who have sited those cases over and over again……it's like these cases that SCOTUS has ruled on that folks claim are why ONLY heterosexual have the fundamental right to marry:
    Skinner vs Oklahoma, which was about one's right regarding procreation

    Griswold vs Connecticut, which again in regarding procreation, not marriage

    Loving vs Virginia, which was about one's right to marry the person of their choosing without regards to race.

    Boddie v. Connecticut, another regarding the right to marry.

    Zablocki vs Redhail, which is about the right to marry regardless of what one owes in support payments

    Turner vs Safley.

    Here are the cases regarding one's right to marry:

  • 19. RnL2008  |  July 30, 2014 at 10:57 am

    No, just been at this a long time or at least since getting married in 2008!!!

    See, I believe that if I have the right to marry the person of my choosing(and yes, she is another woman), then so should everyone else!!!

  • 20. brandall  |  July 30, 2014 at 10:17 am

    I'm with you. But, I think they totally understand Baker now has no legs even through there was no explicit, newer precedent by SCOTUS.

    A lot of this battle is about anti-ME politicians, elections, organizations and certain major religious denominations using ME to drive funding, getting a paycheck or getting elected. They can't say "we don't have a leg to stand on." So, they grab the closest thing they can find (Baker), go with it and then scream "activist judges" when they lose. They never, ever expected to be this far with not one winning case in their pocket.

    It will be interesting to see NOM's 2014 revenue in 2 years when it is publicly available. I suspect the donations are falling rapidly.

  • 21. RnL2008  |  July 30, 2014 at 10:31 am

    Yes, it will……if the anti-gay organizations like NOM start to fall… will make this go a little easier, but those Tea Party folks and Evangelistic Fundamentalist are NOT going to go away that easy!!!

  • 22. brandall  |  July 30, 2014 at 10:40 am

    I will just referring to NOM. TP's and EF's will still be trying to get rid of ME for several decades into the future. There will be Republican fundraising letters in 2030 saying they need money to insure they can replace Chief Justice H. Clinton with someone who will reverse the horrible SCOTUS Kitchen (or Bostic) decision of 2015. 😉

  • 23. DACiowan  |  July 30, 2014 at 10:44 am

    But Julian Castro will win a second term in 2032 anyways. 😉

  • 24. SFExPat  |  July 30, 2014 at 12:43 pm

    I may not be a sentient being by that point, but my thoughts are with your optimism anyway!!


  • 25. sfbob  |  July 30, 2014 at 1:21 pm

    Castro was just sworn in as head of the agency I work for. Got to see him in an internal telemeeting this morning; he's very impressive. And very young.

  • 26. Mike_Baltimore  |  July 30, 2014 at 5:58 pm

    Missing would be the President from the 2024 election.

    I'm presuming a Democratic Presidential candidate (Hillary Clinton? Elizabeth Warren? Joe Biden? Martin O'Malley? Someone else?) will be elected in 2016, and re-elected in 2020.

    Would Julian Castro be ready in 2024? And then reelected in 2028. Otherwise, there is at least one one-term President in the mix, and it is rare for a one-term President to be followed by a President of the same political party.

  • 27. RnL2008  |  July 30, 2014 at 10:45 am

    Now you're just being funny……thank you:-)

  • 28. FredDorner  |  July 30, 2014 at 10:22 am

    How was Baker not precedent outside of Minnesota?

    I do understand how it's not controlling precedent today and that it's been inappropriately cited as precedent by some recent pre-Windsor rulings, but the fact is that it has been cited as precedent as recently as the 2006 Bruning case in Nebraska (if not more recently.)

    Also, Minnesota passing marriage equality wouldn't impact the federal precedential value of Baker.

  • 29. RnL2008  |  July 30, 2014 at 10:29 am

    Just because ANTI-GAY Justices in both the Nebraska case(before Windsor) and the Nevada case(Post Windsor) decided to use Baker……DOESN'T mean it was EVER precedent in my opinion. It's like saying Hernandez vs Robles was precedent, even though it only applied to New York and again is IRRELEVANT because New York has ME now!!!

  • 30. BenG1980  |  July 30, 2014 at 10:36 am

    Hernandez was a state case based on state constitutional claims — not the U.S. Constitution — and therefore not appealable to SCOTUS and not binding anywhere except New York.

  • 31. FredDorner  |  July 30, 2014 at 10:43 am

    "the Nevada case(Post Windsor) decided to use Baker"

    Yeah, that one was entirely unsupportable. No surprise that judge is a Mormon, just as is the dissenting judge on the 9th circuit appeals court in the Prop h8 case.

  • 32. KahuBill  |  July 30, 2014 at 2:23 pm

    the Federal District Judge in Hawaii who decided Jackson v. Abercrombie also relied on Baker and was also a Mormon. On the other hand Judge Kimball also, I believe, a Mormon sided with Marriage Equality in the Utah case.

  • 33. FredDorner  |  July 30, 2014 at 2:29 pm

    That's true, and a good point – not all Mormons are bigots and not all Mormon judges are unable to separate their church from the secular state. Kimball's ruling was also quite well written.

  • 34. brandall  |  July 30, 2014 at 2:37 pm

    Judge Dale Kimball is a Mormon with significant positions in the church. The name Kimball also goes way back in Mormon history and is a very well known name like Smith, Young, etc. I was also impressed with his decision.

  • 35. bayareajohn  |  July 30, 2014 at 11:02 am

    Rose, read up on BAKER, your opinion is not justified.
    Baker was rejected for SCOTUS review "for want of a federal issue": This implies that the issue was up to the state and not suitable for federal review. That's the key for why the anti-ME folk love it. States control this, per Baker. The problem is that the Court didn't explain anything in their toss of BAKER, so how to apply that toss to other cases has never been specific.

    At the time (and this changed some time ago), the rules of law and procedure declared summary dismissals by SCOTUS to be binding precedent. So BAKER did become binding in all states… but the confusion caused when applying a "decision" that wasn't actually explained as a precedent helped lead to a change in the law that would make a BAKER decision NOT binding on other cases if it were decided in this non-deciding way today. But Baker came before this change, and the change is not retroactive. So Baker stands, but is undermined by countless actions by federal courts and SCOTUS since then that ought to make it clear that, Baker notwithstanding, the federal interests in this issue do exist and have proceeded. Baker is dead through change of circumstances and trends in jurisprudence, that is, its opaque wave at calling it a non-issue is obsolete today by clear actions by the same Courts that Baker suggested there was nothing for them to do. But it remains "law", just bad law.

    It's not foolish to present BAKER if you are fighting against ME, but it is foolish if you don't even try to explain a theory why it should apply given the last years of events.

    I would have expected more pro-ME arguments toward dumping Baker based on the implied undermining of the confidence in negative summary judgements as evidenced by the law changes after Baker. Not definitive, but support for casting Baker as ambiguous leadership in the first place.

    (My description of the BAKER situation is from memory and not from recent research. I believe it is generally accurate.)

  • 36. BenG1980  |  July 30, 2014 at 11:13 am

    Close, but not quite. Summary dismissals by SCOTUS remain binding. They're just more rare now. In the past they were very common. At the time Baker was decided SCOTUS was required by federal statute to review the Minnesotta Supreme Court's decision. Congress has since changed that law.

    See this article on the history of mandatory jurisdiction:

  • 37. bayareajohn  |  July 30, 2014 at 11:23 am

    Thanks, I thought I had some nuance a bit off.
    In the BAKER era, SCOTUS was REQUIRED to review, so there were more content-free summary judgements that basically equate to non-cert decisions today… which are pretty clearly not binding law.

  • 38. RnL2008  |  July 30, 2014 at 11:57 am

    I have read Baker many times over the last few years and I will continue to see it differently and disagree with some of your assessment.

    Thanks for the response though……I'm always learning new things every day!

  • 39. JayJonson  |  July 30, 2014 at 1:08 pm

    You are not a serious person if you think technical questions of precedent and judicial history is simply a matter of opinion, or a question of what decisions you like and don't like. This is more like a child having a tantrum, screaming "I don't like Baker, nah, nah, nah!"

  • 40. RnL2008  |  July 30, 2014 at 1:25 pm

    Sorry, but I'm real serious about ME and just because you have issues with my thoughts and opinions DOESN'T change that!!!

    I DON'T believe Baker is precedent and I DON'T believe it was applicable outside of Minnesota and I think it has been explained by most if NOT all of the rulings where it has been brought up.

    You DON'T have to like my opinion or even read them, but you could show a little respect and stop the name calling!!!

  • 41. JayJonson  |  July 30, 2014 at 2:11 pm

    This site has been characterized by serious discussions not by the kind of absurd claims that you are making here. I do not doubt your passion about the issues, but that does not give you the right to post erroneous information. Baker has served as precedent for a number of rulings. That is not an opinion that is a fact.

    It is no longer a precedent, not because you say it isn't, but because a number of judges have determined that it can no longer serve as a compelling precedent because the Supreme Court has signalled a change of doctrine in regard to same-sex relationships as a result of Romer, Lawrence, and Windsor.

    I suggest you actually read the recent decisions and see how the majority opinions are dealing with Baker. They do not say Baker was never a precedent. They say that Baker NO LONGER has precedential power. This is not a matter of opinion. It is a matter of fact.

  • 42. RnL2008  |  July 30, 2014 at 2:39 pm

    I DO have the right to post my thoughts, opinions and viewpoints on this site or ANY other site as long as I follow the TOS and seeing that I am, from this point on, I will simply ignore your comments.

    By the way, I have read pretty much parts or the entire rulings on these cases, especially the ones regarding California……again, YOU don't get to tell me what I should or CAN'T do. Thanks anyways, but I do just fine on my own!!!

  • 43. JayJonson  |  July 30, 2014 at 5:02 pm

    Yes, you have the right to post stupid things, but that does not mean that you should. Your post denying the significance of Baker does a great injustice to the history of gay rights and marriage equality in the courts. It is simply wrong, and your persistence in insisting on something so beyond debate shows how little you know about the law and about the history of gay rights litigation. I cannot see how you can have actually read the decisions you refer to without having learned how central to them is the question of Baker. Every recent decision has had to address Baker and explain why it is NO LONGER good precedent (or, in the case of Niemeyer, for example, why in his dissent it should continue to be good precedent.)

    I will be happy to ignore you, but if you continue to litter this board with such erroneous assertions–and hold to them even in the face of people pointing out how erroneous they are–you will be as annoying as trolls like TKinSC, and I for one will no longer contribute to the support of this site.

  • 44. RnL2008  |  July 30, 2014 at 6:40 pm

    Please DON'T threaten me and I will NEVER be a troll… may believe that you know so damn much, but your problem is you are NOTHING more than an arrogant person!!!

    My opinion regarding Baker's LACK of significance is no difference than you giving it more credit than it had!!!

  • 45. bayareajohn  |  July 31, 2014 at 12:24 am

    I'd like to understand your analysis of BAKER that differs from the common one. Please share what you base your opinion on, not so we can argue about it, but appreciate your viewpoint as more than just a position.

  • 46. RnL2008  |  July 31, 2014 at 1:25 am

    I had NEVER heard of Baker vs Nelson until about 5 or 6 years ago, remember that I was like 9 years old in 72. I not only post here, but up until recently, I posted on a blog site called Topix's. Many folks who seriously oppose our right to marry like to use Baker vs Nelson and in order to take some position on it, I had to do a little research regarding it. Once I read it, I knew that it DIDN'T apply to the situation with the legal marriages as far as California was concerned, seeing that in Baker, the men NEVER got a marriage license and the 18,000 legally married Same-Sex couples in California had……, that's why at first I stated what I did regarding that ruling…….Baker vs Nelson is also NOT applicable in the cases were the lawsuits are about a state recognizing the legal marriages from other states, as again some marriage license had been issued…where in Baker vs Nelson, a marriage license had been denied!!!

    Oh and just in case anyone wants to know….. the couple in the case of Baker vs Nelson, actually did get a marriage license using a more unisex name and have been legally married in Minnesota since the late 70's!! Here is how they got married:
    Then there's Jack and Mike's second attempt to attain a marriage license (following a legal name change by Mike Jack to Pat Lyn McConnell). This attempt was successful and was never challenged in court. The couple – together to this day – maintains that their marriage is valid under the law.

  • 47. JayJonson  |  July 31, 2014 at 7:29 am

    Precisely. YOu never heard of a case and therefore you think it is unimportant. And you accuse me of arrogance?

    Again, this is not a matter of opinion. Your lame-brained idea that Scalia is going to support marriage equality is an opinion. The significance of Baker does not hinge on opinion. The fact is that it denied our marriage rights for over 30 years. Cases were dismissed out of hand simply on the basis of Baker. That was one reason the established gay legal community was reluctant to go to federal court and instead began pursuing marriage equality via state courts–Hawaii, Vermont, Massachusetts, Iowa, New Jersey, to cite the successes, though there were a number of defeats in which state courts cited Baker as a reason not to rule in our favor. Charles Cooper thought he was going to win at SCOTUS on the strength of Baker.

    To learn more about Baker as a precedent read section III of the majority opinion in Bostic, where it is very clearly explained that Baker was for many years a binding precedent but is now no longer in light of doctrinal change. Read also Niemeyer's dissent in which he claims (erroneously) that Baker continues to be a binding precedent. Your insistence that legal history doesn't matter because something happened when you were 9 years old and when you read it you know it was wrong is breathtakingly arrogant.

    The very fact that Baker continues to be relied upon by our enemies shows not only their desperation, but also that they know it worked in the past. It will not work this time, though Scalia et al. will certainly cite it in their dissents, saying that that case forecloses the issue, since there is no "federal question."

  • 48. RnL2008  |  July 31, 2014 at 11:05 am

    Jay, you are entitle to your personal opinions regarding me, but as we have stated many time on topix's….when one has to resort to name-calling…one has already lost their argument.

    I have NOT resorted to name calling or bashing you outside of calling you ARROGANT. I will NOT engage someone who can NOT respect our difference of opinion and yes, there is only the one sentence from SCOTUS, but reading the ruling from the MSSC does give some understanding of the case overall!

    I will continue to believe what I do regarding Baker vs Nelson, just like I will continue to believe that Marriage and Procreation are BOTH fundamental rights, but were NEVER meant to go hand in hand in order for marriage to be a Fundamental right.

    I will ignore you from this point going forward…..thanks for your opinion, to bad that is all it is!

  • 49. JayJonson  |  July 31, 2014 at 1:37 pm

    Sorry, I am not going to ignore you when you post clearly wrong factual information. You may think whatever you want and you are entitled to your opinion about anything. You are not, however, entitled to create "facts." It is not an opinion but a fact that Baker has in the past served as a binding precedent on which much litigation involving the recognition of gay rights and relationships were dismissed.

  • 50. bayareajohn  |  July 31, 2014 at 11:02 am

    Thank you for sharing the background for your feelings about BAKER. It clarifies that you are "distinguishing" Baker from the ME cases today, exactly what is required to overcome the recognized "precedent" that Baker has in the subject matter. For years, Baker stood as a declaration by SCOTUS that SSM issues, as a whole, were not the province of the federal government, and reserved 100%, lock stock and bedroom, for the states to individually manage as they saw fit. It was read as an abandonment of the subject matter and became law to that effect, what is called in the law, "PRECEDENT", a real and defined and key part of how American courts -must- work.

    Any precedent has context, and an effort to explain why a precedent does not apply in a circumstance is called "distinguishing" the case. The things you say you "knew" when reading Baker are things you feel distinguish its precedent.

    Jay and others are not being unduly pedantic to object to your casual use of very specific legal terms. Like saying something is "illegal" when what you mean is "ethically wrong", saying Baker isn't "precedent" when what you mean is you don't think it should apply rankles those of us trained to use the legal system as intended.

    I think Jay inappropriately jumped on your comment of about not reading BAKER until more recently as the point of your defense. This lawyerly diversionary tactic is a classic strategy to undermine an effort to distinguish a position… pick the part you can win on, and don't deal with the real issues. Exactly as the ME opponents use Baker today. When you are out of bullets, throw the gun.

    Sorry Jay, not to undermine your points, you just gave an opportunity to wrap my summary. Your frustration is making you a bit overly hostile on what is actually a semantic disagreement. Rose is with us, don't doubt that.

  • 51. RnL2008  |  July 31, 2014 at 11:12 am

    Well, I NEVER claimed to be a Legal Scholar nor a Lawyer, my understand of these cases and wording has been the result of reading many of the rulings, doing research on the history of this fight and communicating with a couple of "REAL" lawyers to help me better convey my opinion and understand the terms used.

    I respect most of your opinions as well as the opinions and comments by those who have been advocates for this cause longer than I have, but I WON'T tolerate someone calling me names just because they DON'T agree with my opinion.

    We are all on the same side of this fight and there are folks out there who REALLY want and enjoy seeing us fight among ourselves, and frankly I'm NOT going to engage is that sort of behavior……I'll leave first!!!

  • 52. bayareajohn  |  July 31, 2014 at 11:19 am

    Rose, I think Jay's name calling can be paraphrased as calling you "not a lawyer". In most circles today, that's a compliment, so go with that thought.

  • 53. RnL2008  |  July 31, 2014 at 11:25 am

    Well, I appreciate your defense of him and trying to explain his position……I believe that it has more to do with a personally clash because I DON'T and WON'T see things his way…….as long as I am NOT violating this sites TOS, I will continue to be passionate on this subject and give my 2 cents worth of thoughts and opinions…….sorry, that he is NOT adult enough to accept that!!!

  • 54. JayJonson  |  July 31, 2014 at 1:58 pm

    My objection to Rose's posts about Baker has nothing to do with the fact that she is not a lawyer. I am also not a lawyer. I am a historian, however, and the truth matters. You cannot say false things and expect to be taken seriously. And, after your error has been repeatedly pointed out by several persons, you cannot simply say "my opinion is as good as yours," when the issue is not a matter of opinion but a matter of fact. The fact is that Baker was an exceptionally damaging one-sentence ruling by the Supreme Court that wreaked great havoc on gay rights jurisprudence in the federal system for many years. One of the bright spots in the recent string of post-Windsor decisions is that Baker has now been thoroughly repudiated. One can not appreciate the historical significance of these rulings if you just cavalierly say, "Well it wasn't really a precedent in the first place," especially if you don't even know what the hell a precedent is.

  • 55. JayJonson  |  July 31, 2014 at 1:43 pm

    I do not doubt that Rose is "with us." I object to the obstinacy with which she continues to insist on an indefensible point. I do not disagree with her "opinion" that Baker is bad law. In fact, I completely agree with that. What I disagree with is the absurd contention that it was never a precedent. In fact, it was such a powerful precedent it practically paralyzed our progress in federal court. It was one reason many established gay legal organizations disagreed with AFER's decision to challenge Prop 8 in federal court. If she does not know what the word "precedent" means, she should not use it.

  • 56. davepCA  |  July 30, 2014 at 2:54 pm

    Hey kids, let's play nice with our brothers and sisters. We don't want Scottie or Jacob to turn this car around.

  • 57. RnL2008  |  July 30, 2014 at 4:44 pm


    I'll behave and play nicely with others!

  • 58. JayJonson  |  July 31, 2014 at 9:46 am

    What have you read "many times over"? When people here refer to Baker they are not talking about the actual brief ruling from the Minnesota Supreme Court. They are talking about the one-sentence dismissal from SCOTUS saying the case presents no federal issue. It is not something that you would have read "many times over the last few years." You seem to have no idea what legal scholars are talking about, yet you pronounce your "opinion" as though it is something you have spent hours reading and pondering.

  • 59. Bruno71  |  July 30, 2014 at 11:37 am

    The Nevada case was decided by the district judge in November 2012, 7 months before Windsor was decided by SCOTUS.

  • 60. RnL2008  |  July 30, 2014 at 11:56 am

    I stand corrected…..for only thinking it was post-Windsor NOT pre-Windsor….thanks for the correction!

  • 61. Eric  |  July 30, 2014 at 12:55 pm

    We all agree that Baker was as wrongly decided as Bowers and Plessy. Eventually, the court will recognize that.

    Where Baker was never precedent, was on the issue of out of state marriage recognition. That mater was not before the court in Baker.

    The anti-gay try and misapply Baker beyond its original scope.

  • 62. Lynn_E  |  July 30, 2014 at 4:37 pm

    Didn't the Baker question come up in oral arguments (in Windsor or Hollingswoth)? I know it wasn't dealt with in the decision, but I seem to remember one of the Justices (Ginsberg?) asking the non-ME side about Baker. They had a quick exchange that acknowledged that, in both of their opinions, Baker no longer controlled. If the other Justices disagreed, they didn't jump into the fray. Not legal precedent, I know, but surely hints at the current thought on the subject. The mere fact that, with this many Federal Court rulings, someone would still claim "lack of Federal question" is baffling.

  • 63. BenG1980  |  July 30, 2014 at 6:06 pm

    Justice Kennedy ignored Baker completely in Windsor. Hollingsworth obviously was decided on the basis of standing and the Court never reached the merits.

  • 64. Lynn_E  |  July 30, 2014 at 8:59 pm

    I know it wasn't in the ruling. The exchange was in the oral arguments. I just can't remember which case was being argued.

  • 65. micha1976  |  July 31, 2014 at 3:34 pm

    I think the lawyer for Hollingsworth brought it up and Ginsburg quipped something like: "Baker was 40 years ago before we recognized heightened scrutiny for sex discrimination!"

    Nobody thinks Ginsburg feels bound by Baker anyway, I guess…

  • 66. JayJonson  |  July 30, 2014 at 5:11 pm

    Yes, of course "the anti-gay try and misapply Baker beyond its original scope." But for some 30 years Baker held sway and influenced lots of decisions, including in cases about Don't Ask, Don't Tell, as well as DOMA. Many of early state marriage equality decisions quoted Baker as binding precedent and dismissed the cases.

    In the most recent cases, the majority decisions confront Baker and dismiss it as NO LONGER good precedent because judicial doctrine has changed as a result of the great rulings in Romer, Lawrence, and Windsor.

    But no history of gay rights can ignore the horrendous damage Baker did even after Romer and Lawrence. Luckily, Windsor has put the nail in its coffin, though it is of course routinely cited in all of the current defenses of state marriage bans. It will be considered a binding precedent by Scalia, Roberts, Alito, and Thomas at the Supreme Court, just as it was by Niemeyer in Bostic. On the other hand, Breyer, Sotomayor, Kagan, Ginsburg, and Kennedy will either ignore it or specifically dismiss it as rubbish of an earlier day.

  • 67. sfbob  |  July 31, 2014 at 10:18 am

    I think it's fair to say that at least two of the four will continue to view Baker as precedent. It boggles my mind really that anyone could claim a lawsuit about marriage equality, particularly one in which there are issues regarding the recognition of a marriage performed in one state being recognized in another does not present a "substantial federal question."

  • 68. BenG1980  |  July 30, 2014 at 6:47 pm

    That's a very good point, and I totally agree with everything you've said.

    I still disagree with Rose, however, about the precedential value of Baker at the time it was decided. Obviously she and I both agree that it no longer carries any weight, but I also believe that, at one point in time, there's no question it was binding precedent nationwide only as to the issuance of marriage licenses and not the recognition of out-of-state marriages.

  • 69. JayJonson  |  July 31, 2014 at 7:43 am

    Most of the time it was considered precedent, there were few out-of-state marriages. However, it was invoked decisively in some of the DOMA cases that we lost. The point of Baker is that its summary dismissal declared that same-sex marriage raised no federal question. That was used to dismiss all sorts of litigation regarding same-sex relationships, such as retirement plans and beneficiaries. (Many retirement plans categorically prevented the naming of same-sex partners as beneficiaries for survivor benefits.) Baker began to be eroded as binding precedent after Lawrence, in which Kennedy declared that homosexual persons and their relationship must be accorded respect. (Though, of course, he disavowed that this necessarily meant recognition of same-sex marriage.) But it was strong enough to dismiss some of the DOMA cases filed after Lawrence.

  • 70. JayJonson  |  July 30, 2014 at 1:16 pm

    This is an absurd statement that simply reveals your ignorance. Baker was repeatedly cited in cases involving same-sex relationships and it was embraced by numerous courts, including the Washington Supreme Court and the New York Court of Appeals. It was cited even in the challenges to Don't Ask, Don't Tell, as well as the more appropriate marriage equality cases, many of which we lost as a result, including some of the initial challenges to DOMA. It was cited just a few days ago by Niemeyer in his dissent in Bostic.

    It has been thoroughly eroded as a precedent by the post-Windsor decisions, which have argued that the development of judicial doctrine regarding same-sex relationships in Supreme Court rulings in Romer, Lawrence, and Windsor have rendered Baker no longer a reliable precedent.

    But that does not mean that Baker was never a precedent outside of Minnesota, which is nonsense.

  • 71. RnL2008  |  July 30, 2014 at 1:27 pm

    Citing Baker in NUMEROUS cases DOESN'T make it precedent!!!

    There were many cases who DIDN'T acknowledge Baker for anything other than what it was……an outdated ruling that has been debunked many times…..I was like 9 years old when the Baker ruling was made, hell it was made before Homosexuality had been removed from the DSM!!

  • 72. JayJonson  |  July 30, 2014 at 5:12 pm

    It wasn't simply cited in numerous cases; it decided numerous cases because it was considered not just a precedent but a binding precedent.

    You need to look up "precedent" in a legal dictionary.

    Your ignorance on this point is exceeded only by your obstinancy.

  • 73. brandall  |  July 30, 2014 at 3:43 pm

    WV minor update: Here is today's Plaintiff's Response to the State's Motions to Stay (STALL) on the basis of yesterday's 4th AC decision. The motion implies the state is very confused over what it is trying to stay.

  • 74. ragefirewolf  |  July 30, 2014 at 9:07 am

    I really like how this brief is categorized and written. It ticks off every checkbox that I could mentally come up with that I would want a court to address. Kudos to the couples' legal teams for this excellent piece of legal artwork.

  • 75. brandall  |  July 30, 2014 at 10:33 am

    I in no way mean to diminish your hats-off to the legal teams, but they have the benefit of of the previous 28 decisions to build from and some of those were insanely well written. I'll keep repeating the fact that no fundamental rights issue has every seen this plethora of rulings to work from. But, this one is really well organized and that's very important to making their case.

  • 76. ragefirewolf  |  July 30, 2014 at 12:31 pm

    Absolutely. This brief is most definitely shaped by the court decision history thus far, and I am glad of it. We know what works and that's a very good thing. Even better that winning strategies coalesce into such a well-written brief. May there be more!

  • 77. DoctorHeimlich  |  July 30, 2014 at 9:15 am

    There's a really smart footnote on page 10 of the brief. It comes amid a paragraph explaining how this is NOT a federalism issue, but a fundamental rights issue, and then finds a quote from a Supreme Court case that says:

    There is a clear "distinction between power-allocating and rights-securing provisions of the Constitution."

    That quote is from Justice Kennedy. These lawyers know their audience.

  • 78. sfbob  |  July 30, 2014 at 10:55 am

    There is also the observation (pages 18 to 19) that not only is the right to marry not predicated on the intention or ability to procreate it also does not require a test for a childbearing skills or competency. And that Indiana's marriage laws explicitly PERMIT marriage between first cousins provided they are over 65 years old.

  • 79. StraightDave  |  July 30, 2014 at 11:40 am

    It's even worse than suddenly imposing a parenting skills test for the first time, just because this new group of people have shown up. The state is presumptively declaring that all SS couples will automatically fail such a test without even bothering to conduct it. Furthermore, all OS couples are presumed to pass said test. It would be one thing if such a test were actually given, which might even have some (albeit abhorrent) scrap of justification. It's quite another to decide the "results" in advance.

  • 80. cpnlsn88  |  July 30, 2014 at 1:22 pm

    This is a very germane point that the test of good parenting, assuming all SS couples will fail without bothering to conduct the test and assuming all OS couples will pass without bothering to administer the test. Much more so when available evidence suggests (at the very least) that in all probability as many SS and OS couples would pass the test and that we surely know there are OS couples who would fail at any such test, because they objectively do fail as parents and we also know there are SS couples who would pass the test. Where does that leave us? Things I would mention would include evidence of animus, segregation and failure to pass a rational level of scrutiny.

  • 81. StraightDave  |  July 30, 2014 at 3:20 pm

    Don't forget that the bigots claim this "failed" non-test as evidence of their RATIONAL basis. More judges should be laughing at them.

  • 82. Mike_Baltimore  |  July 30, 2014 at 3:28 pm

    If the state is so sure of opposite sex couples being 100% capable of parenting children,then:

    Why does the state (or counties) have a Child Welfare Department (or similarly named entity)? If OS couples are automatically capable of parenting children, would there be a need for such a department?

    Are people in jail/prison capable of proper, hands-on parenting of children?

    An aunt and uncle of my (half-)sister (same mother, different father) adopted two (almost teenage) children of parents sent to prison for dealing drugs. The children knew of the offenses of their parents, and wanted nothing to do with those parents. My sister's 'adopted cousins' were totally accepted into their new family (immediate and extended).

  • 83. RQO  |  July 30, 2014 at 7:25 pm

    This is particularly maddening, and depressing. I am sure all of us know children who will defend their SS parents to death. Many of us know children – now adults with some perspective – who will passionately declare their parent became a better parent after coming out. All of us have seen countless photos and stories of SS couple's families – are there an "unusual" number of rainbow adopted foster kids as opposed to imported babies that look just like the parents or am I crazy? I'm sure there is an example somewhere, but I am unaware of any SS couple – or single – being charged with child neglect. What is a stronger term than "insult"?

  • 84. BenG1980  |  July 30, 2014 at 7:30 pm

    "What is a stronger term than 'insult'?"


  • 85. FredDorner  |  July 30, 2014 at 11:25 am

    Regarding the scoping of the fundamental right to marry, this part from pg 21 is well-phrased:

    The argument that same-sex couples seek a “new” right rather than the same right exercised by others repeats the very mistake made in Bowers v. Hardwick, 478 U.S. 186 (1986), and corrected in Lawrence v. Texas. In a challenge by a gay man to Georgia’s sodomy statute, the Bowers Court recast the right at stake from a right, shared by all adults, to consensual intimacy with the person of one’s choice, to a claimed “fundamental right” of “homosexuals to engage in sodomy.” Lawrence, 539 U.S. at 566-67 (quoting Bowers, 478 U.S. at 190). In overturning Bowers, the Lawrence Court held that the constricted framing of the issue in Bowers “fail[ed] to appreciate the extent of the liberty at stake."

  • 86. Eric  |  July 30, 2014 at 12:58 pm

    Perhaps we can get a ruling from SCOTUS clarifying that federalism is secondary to individual liberty.

  • 87. FredDorner  |  July 30, 2014 at 2:13 pm

    Civil rights have theoretically always trumped states' rights ever since the 14th Amendment was passed and the Incorporation Doctrine was adopted, although the application by the court is obviously inconsistent.

  • 88. StraightDave  |  July 30, 2014 at 3:29 pm

    @Eric- It's already done.
    See Windsor citing Loving and the subsequent cite to Windsor in Bishop.

    "State laws defining and regulating marriage, of course, must respect the constitutional rights of persons"

  • 89. sfbob  |  July 30, 2014 at 5:11 pm

    I was also very pleased to see a significant discussion of Perez vs Lipold, the 1948 California Supreme Court decision which marked the first court challenge to anti-miscegenation laws and which helped create the path to Loving vs Virginia.

  • 90. FredDorner  |  July 30, 2014 at 8:15 pm

    There's also a good discussion of the ban being gender bias.

  • 91. sfbob  |  July 30, 2014 at 9:23 pm

    Also a great discussion of ways in which the state's marriage ban does not do what it purports to do (bullet-pointed at the bottom of page 40 and the top of page 41). I don't think I've seen a brief that covers this territory with such specificity.

  • 92. Mike_Baltimore  |  July 30, 2014 at 9:40 pm

    The Perez decision by the Cal SC was not the first, but was the first SUCCESSFUL suit against the anti-miscegenation laws in the state.

    An earlier case, in 1939, was decided in a San Diego court room. The case involved one Marie Antoinette Monks, several personal 'friends' and 'expert' witnesses, a will (actually two), insanity, drugs, personal opinions, a marriage in Arizona before the couple moved to California, a motorcycle accident, etc. To say the case was convoluted is probably an understatement.

    I think the attorneys for Ms. Monks said it correctly, when describing how anti-miscegenation laws were written as prohibiting Ms. Monks: ". . . [as a Caucasian] from marrying a negro or any descendant of a negro, a Mongolian or an Indian, a Malay or a Hindu, or any of the descendants of any of them. Likewise as a descendant of a negro she is prohibited from marrying a Caucasian or descendant of a Caucasian, which of course would include any person who had any degree of Caucasian blood in them." (Filipinos formerly were classified as 'Malays').
    (… – then search for 'Monks'.)

    Between the Monks and Perez cases was a 'small dispute' we now call WW II. That 'small dispute' probably changed a lot of people's minds, especially after it was discovered what the Nazis had been doing with their 'experiments' and extermination camps involving race and eugenics.

    And I agree with you that the 1948 decision in 'Perez v Lipold' helped create the path to 'Loving v Virginia'.

  • 93. sfbob  |  July 31, 2014 at 10:14 am

    Quite right Mike. There had been attempts to challenge anti-miscegenation laws before, but none had been successful. I should have been more specific.

  • 94. Margo Schulter  |  July 30, 2014 at 12:37 pm

    RnL2008, one important point is that Baker v. Nelson wasn’t directly relevant to the Marriage Cases in California in 2008 — happily leading to your marriage — because the California Supreme Court was interpreting only the California Constitution, not any “federal question” of the kind that the Baker Court had found not be present back in 1972.

  • 95. Margo Schulter  |  July 30, 2014 at 12:47 pm

    In using Baker v. Nelson, what lots of marriage ban defenders are doing with their excessive degree of zeal is correctly asserting that such summary affirmances or dismissals are indeed decisions on the merits, but then disregarding the clearly established rule that “doctrinal developments” can indeed authorize lower federal courts not to treat these formerly governing decisions as still binding.

    What these overzealous marriage ban defenders also miss (or disregard) is the distinction between a SCOTUS decision after a full hearing, which indeed remains binding on lower courts until SCOTUS itself says otherwise, and one of these summary dispositions which can be effectively overruled by “doctrinal developments.”

    The quite sensible rationale for this distinction is that since summary dispositions were the Court’s device used for mandatory appeals where it would have otherwise denied cert., it would be a considerable burden on the Court to have each of these decisions, however many decades old, carry full precedential weight until the Court expressly overruled it. The “doctrinal developments” rule shifts the responsibility to the lower courts to exercise their good judgment and discretion, and determine if a summary disposition still reasonably carries that weight.

    It’s fairly easy to include that state marriage bans, however one judges the ultimate merits, now raise a “substantial federal question.”

  • 96. brandall  |  July 30, 2014 at 1:13 pm

    VA Bostic – Is Michele McQuigg the only defendant left with standing?

    The article linked below implies Clerk McQuigg is the only defendant who can decide whether to appeal via ADF. She has not made a decision to appeal yet. Most of the anti-ME defendants have a press release fired off within an hour of a losing decision.

    Her background is she was a Republican member of the Virginia House of Delegates from 1998 to 2008 after opting not to run for reelection. She was elected clerk of circuit court in Prince William County, Virginia on November 6, 2007. [Wiki]. But, she is also a member of the Episcopal Church, which supports GLBT rights and ME on a per bishopric basis. And, she was born in Bayshore, NY. It's a shame my grandmother from Bayshore, NY is not alive since she should be on the phone with Michele telling her to stop this mean-spirited behavior immediately.

    The consolidation of these VA cases down to Bostic is a bit confusing to trace. With the Gov and AG out of the picture, is the entire state of ME in VA now resting on one single clerks’ appeal decision? If yes, then how ironic considering all the screaming about a single judge overruling the will of the voters.

  • 97. MichaelGrabow  |  July 30, 2014 at 4:38 pm

    Wouldn't George Schaefer have standing?

  • 98. brandall  |  July 30, 2014 at 5:23 pm

    Since he was the primary defendant, yes. But, did he take an active defense role or depend at the time on Gov. Bob McDonnell and AG Ken Cuccinelli? I can't tell and the Scribd files don't contain all of the documents.

  • 99. BenG1980  |  July 30, 2014 at 7:42 pm

    George Schaefer apparently filed an opening brief as an appellant in the 4th Circuit case. I'm not sure why he wouldn't be similarly inclined to file a petition for cert with the Supreme Court. Leesburg and Prince William County are both in the suburban Washington, D.C. area. I suspect that the local Leesburg reporter focused on McQuigg because of her proximity. Norfolk is much farther south and nearer to North Carolina.

    Schaefer brief:

  • 100. Mike_Baltimore  |  July 30, 2014 at 4:49 pm

    It's interesting, but not surprising, that she was elected clerk of the circuit court.

    Prince William County in Virginia has voted for a Democratic Presidential candidate twice since 1964 – 2008 and 2012. With the migration of people from Fairfax County and Alexandria City into Prince William County, it could turn into a reliably Democratic-voting county. As of right now, though, it is definitely purple, probably reddish-purple (and has several TP groups active).

  • 101. Margo Schulter  |  July 30, 2014 at 6:44 pm

    RnL2008 and JayJohnson, Justice Ginsburg’s remarks during the Hollingsworth argument on Proposition 8 suggest that, in retrospect, Baker v. Nelson may have been undermined in the years immediately after its decision in 1972 by the burgeoning law of gender discrimination, as well as later by the RomerLawrence line of cases on sexual orientation which reached a more decisive watershed in Windsor (argued the previous day).

    May I strongly urge a rule of charity on this site? People may strongly and sincerely advocate mistaken views of the law, and correcting them in a friendly and patient way is part of the fun. An elusive question is just how long Baker really remained a valid precedent — although it is indeed true that cases such as Bruning in 2006, and even some of the pre-Windsor DOMA cases, assumed that it was still binding as late as 2012.

  • 102. Margo Schulter  |  July 30, 2014 at 6:48 pm

    My hasty correction: Windsor was argued at SCOTUS the day after the Proposition 8 case, proving that I can be at least as mistaken or more so than RnL2008! Friendly dialogue is the best way to sort these things out.

  • 103. Margo Schulter  |  July 30, 2014 at 6:54 pm

    BenG1980, you are clearly right under Hicks v. Miranda that Baker was certainly binding precedent when it was decided! Obviously “doctrinal developments” require some time to happen.

  • 104. sfbob  |  July 30, 2014 at 9:13 pm

    I keep trying to think of new ways to counter a state's argument that bans on marriage equality would survive rational basis because they apply equally to men and to women and that the state is entitled to impose such a limitation on couples who wish to marry.

    It occurs to me that there is an implication in such arguments that those of us who are inclined to marry someone of our own gender are just a bit perverse in that we insist on wanting to marry someone of a class from which we have been told we could not select a marriage partner and that therefore if there, if there happens to be an impediment to marrying the person of our choice the impediment is of our own making.

    Above and beyond that however there is a sense in which the state's (any state's) insistence that it has an unfettered right to make decisions about who may marry within the state and which out-of-state marriages it can recognize or not recognize (the invocation of the "public policy exception" as in, "we don't recognize out-of-state same-sex marriages because that's our policy here in the state of [I believe Idaho's ban includes that very language so fill in the blank accordingly]) can be shown to be based on the invocation of an entitlement untethered to any purpose other than the exercise of power.

  • 105. Mike_Baltimore  |  July 31, 2014 at 12:34 pm

    I believe in the 'Loving' case, the whole marriage outside who the state decides you may marry was dismissed as so much poppycock to hide the antipathy (if not outright animus) that the state had for 'low-life' non-whites. And SCOTUS specifically dismissed the 'applies to men and women equally' argument. Since SCOTUS didn't declare the decision was based on rational or heightened scrutiny, it must be presumed that the ruling was made on a rational basis (buttressed by the now known discussions of compromises that had to be made to make it a unanimous decision).

    So even the 'marriage outside your class' and 'applies equally to men and women' arguments would almost certainly fall.

    I think we've discussed the how and why any other arguments fail, thus the bigots only opportunity probably will hinge on a new argument based on a rational and believable basis.

    (sarcasm) And we know how rational and believable the bigots are in any and all their arguments. (/sarcasm)

  • 106. Equality On TrialREAD IT &hellip  |  August 22, 2014 at 10:59 am

    […] The officials’ first brief, and the plaintiffs’ brief, are both linked here. […]

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