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– UPDATE: The Fourth Circuit Court of Appeals has denied, in a 2-1 vote, Prince William County Circuit Court Clerk Michele McQuigg’s request to stay the mandate, or formal judgment, in Bostic v. Rainey, the same-sex marriage case. The mandate is set to issue on MondayWednesday, at which time same-sex couples in Virginia can begin marrying. The clerk can ask the Supreme Court for a stay of the mandate. That request would go first to Chief Justice Roberts. There’s a petition for review of the case pending at the Supreme Court. No action is expected on that petition until October 10 at the earliest.

– Same-sex couples in Mississippi are organizing this week to have their legal marriages from out of state recorded.

– The Washington Blade points out that there appears to be a shift by conservatives toward attacking immigrants’ rights instead of LGBT rights.

– The ACLU has said they’ll sue the military on behalf of Chelsea Manning if she continues to be denied gender-related medical care.

– SCOTUSBlog has an in-depth look at the same-sex marriage “streak” in the courts.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  August 13, 2014 at 9:06 am

    BIG NEWS: Bostic – 4th Circuit will not issue a stay. Technically, marriages in VA could begin Monday. McQuigg can go to SCOTUS to request a stay.

    "Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.

    Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion."

  • 2. Japrisot  |  August 13, 2014 at 9:13 am

    That is amazing news! It shows how strongly the majority stands behind their opinion and how firmly they believe their side will eventually prevail!

  • 3. brandall  |  August 13, 2014 at 9:20 am

    As many of us have wished and strenuously debated, it is about time someone retested the District, CA and SCOTUS on their gay=stay automatic decisions.

    Assuming McQuigg appeals, it will first go to Justice Roberts. If he wishes, he may have the other 8 justices participate in the review.

  • 4. Bruno71  |  August 13, 2014 at 9:33 am

    Unfortunately I expect a quick stay. The justices are unlikely to want to look like they're wishy washy, or like they're telegraphing a favorable ruling for our side. Hope I'm wrong.

  • 5. DoctorHeimlich  |  August 13, 2014 at 9:37 am

    Unfortunately, Judges Floyd and Gregory didn't explain their denial of the stay. Without a detailing of the test for stays, I can't imagine SCOTUS would actually revisit the issue. But then again, Floyd and Gregory probably assumed SCOTUS would grant the stay anyway.

    Still, it's good to put this back in front of SCOTUS to force them to go through the motions. It underlines to them the fact that this issue will keep knocking at their door until they take it up and deal with it.

  • 6. brandall  |  August 13, 2014 at 9:45 am

    To your point, Floyd and Gregory and SCOTUS should be at least explaining why they are ruling on their stays in light of the flagrant violation of fundamental rights being violated. When Kitchen was the only winning case, OK. But, this is now ridiculous with 22 Federal rulings. The likelihood of being overturned can certainly be questioned.

  • 7. KahuBill  |  August 13, 2014 at 12:53 pm

    Knowing that SCOTUS ultimately holds all the cards, it is a matter of etiquette as well as common sense. Why use a battering ram when SCOTUS will certainly hear this knock on the door? (And so will everyone else who is listening).

  • 8. Mike_Baltimore  |  August 13, 2014 at 9:14 am

    There apparently is no waiting period in VA, so theoretically, as soon as the 4th Circuit announces there will be no stay, ME marriages could begin.

    Edit: According to the Richmond TimesDispatch:

    "Same-sex couples will be allowed to apply for marriage licenses effective Aug. 20, said Michel Kelly, spokesman for Attorney General Mark R. Herring." (August 20 would be next Wednesday.)

    Now it becomes a question if any clerk starts to disperse licenses before Wednesday. If the duties of the clerks is purely ministerial (AG Herring can tell them what they can or cannot do, and they MUST follow the AG's determinations), then McQuigg doesn't have standing; if not purely ministerial, then they can decide to disperse the licenses at any time if my understanding is correct.

  • 9. brandall  |  August 13, 2014 at 9:35 am

    Freedom to Marry is saying out-of-state recognition and new in-state marriages could not begin until Wednesday, one week from today. So, while there is no VA waiting period, the appeal to SCOTUS is allowed 7 days.

  • 10. Mike_Baltimore  |  August 13, 2014 at 10:10 am

    Is the delay according to court order, or because Herring said so?

    If by court order, then it is Aug. 20.

    If because Herring said so, then McQuigg is doing nothing but following orders, his job (as pertaining to marriage licenses) is almost assuredly ministerial, and therefore he doesn't have standing to appeal unless he shows how he, personally (not as an officer of the court), is hurt by allowing ME to occur in the state.

    Remember, there were marriages in several states (Utah, Indiana, Pennsylvania, etc.) when the stay was not from the District or Circuit court.

  • 11. DaveM_OH  |  August 13, 2014 at 10:29 am

    FRAP 41(b).
    "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."

  • 12. Mike_Baltimore  |  August 13, 2014 at 2:04 pm

    So the decision is from the court, not from the AG.

    So why didn't FRAP 41(b) apply in Indiana? No stay was issued until the 7th Circuit issued one (wasn't it issued the same day the District Court issued it's opinion), but several hundred couples got married before the stay was actually issued.

    Same in Utah. More than one thousand couples were married between the opinion and the stay (issued weeks later by SCOTUS), including several dozen who were married less than a week after the opinion was issued.

    In Michigan, the District Court issued it's opinion on Friday. If a stay had not been issued by the 6th Circuit Friday night, there were several clerks planning on their offices to be open on Saturday (when they usually aren't). The only reason they couldn't issue marriage licenses to same-sex couples was because of the stay issued by the Circuit Court.

    Does FRAP only apply in certain Circuit Courts, or is it supposed to be uniform nationwide? I was of the opinion it is uniform, but in at least three cases (6th Circuit, 7th Circuit, 10th Circuit) it appears it doesn't apply.

    Or was FRAP (entirely or partially) specifically revoked in those Circuits, at least in these specific cases?

  • 13. Ragavendran  |  August 13, 2014 at 2:29 pm

    FRAP (Federal Rules of Appellate Procedure) only apply to appellate court decisions. District court orders have immediate effect, unless otherwise stated.

  • 14. Mike_Baltimore  |  August 13, 2014 at 3:24 pm


    Thank you for the explanation of what FRAP actually means. I was of the opinion that FRAP was the rules of procedure in ALL Federal courts, not just Appellate courts.

    This is why when writing, almost all organizations highly recommend that the full name be spelled out, then the abbreviation follows (in parentheses), unless it is determined that EVERYONE knows what the abbreviation is (all major news reporting organizations do, as does the Federal government. The rules are normally issued in a document titled "Writing Style", and is revised as necessary. The Federal government's "Writing Style" is compiled and issued by the Government Printing Office (GPO), and revised by GPO as needed (every five to thirty years).

    In this case, because I presumed FRAP applied to all Federal courts, I was incorrect in thinking it applied to opinions handed down by District courts.

  • 15. Ragavendran  |  August 13, 2014 at 3:52 pm

    You're welcome, Mike 🙂

  • 16. DaveM_OH  |  August 13, 2014 at 5:01 pm

    Yeah, sorry for not being clear.
    SCOTUS' rules cover SCOTUS only.
    Federal Rules of Appellate Procedure (FRAP) cover each of the Circuit appellate courts.
    The Federal Rules of Civil Procedure (FRCP) cover United States District Courts (and Bankruptcy courts).

    In addition, each state's courts have corresponding rulesets that may differ from the federal rulesets.

    Furthermore, only Appellate courts issue mandates; District courts issue orders.

  • 17. brandall  |  August 13, 2014 at 5:03 pm

    While we're down in the mud here…I would like to know…Is there one set of FRAP's binding all Circuits or does each Circuit have their own variations (I think the answer is #2)?

  • 18. DaveM_OH  |  August 14, 2014 at 8:52 am

    So far as I can tell,
    The FRAP is a national standard, but each Circuit can put in place Local Rules which clarify or supersede the FRAP.

  • 19. Japrisot  |  August 14, 2014 at 9:28 am

    It is a set of national rules promulgated by the Supreme Court upon the advice of an advisory committee. The rules themselves are rather pithy, but, in cases where there is ambiguity or where there is a question as to how the rules may apply to a particular situation, the advisory committee also published comments alongside each rule. The comments lay out their rationale(s) for the rule. So reading those can sometimes be quite helpful.

  • 20. Jen_in_MI  |  August 13, 2014 at 5:23 pm

    You are not correct about Michigan. The ban was ruled unconstitutional on late Friday afternoon, and four counties opened hours on Saturday (typically a non-business day) to issue licenses. The 6th Circuit granted a stay on the MI AG's second attempt (late Saturday evening) – so some 322 licenses were issued, and couples most assuredly married during that time – I have the signed and solemnized license to prove it. In MI, you may only seek a license in the county where you reside, effectively shutting the window for marriage in the remaining 79 MI counties (the exceptions being Muskegon, Ingham, Oakland and Washtenaw).

  • 21. jm64tx  |  August 13, 2014 at 12:21 pm

    "AG Herring can tell them what they can or cannot do, and they MUST follow the AG's determinations"

    Unfortunately thats incorrect … the VA clerks are elected clerks of COURT, the AG has NO say in what they do. They report to the judges of the circuit, who report to the VA appellate courts and the VA supreme court. As far as McQuigg is concerned, AG Herring is just another lawyer appearing in court…

    If the AG could tell them what to do, that would violate seperation of powers … the clerk is a judicial office, while the AG is an executive office.

  • 22. Mike_Baltimore  |  August 13, 2014 at 2:10 pm

    Except, while you are partially quotng what I said, it is taken ENTIRELY out of context.

    Quoting out of context is something the bigots love to do, it is NOT something those in favor of ME should do.

  • 23. Mike_Baltimore  |  August 13, 2014 at 3:00 pm

    Downvotes without explanation?

    Does that mean those who downvoted are in favor of quoting out of context? If not, then please state YOUR opinion of why you think MY opinion is incorrect. If you explain, you might make me change my opinion, but if you don't explain how and why you think I'm incorrect, there is little to no probability I'll change my opinion.

  • 24. brandall  |  August 13, 2014 at 5:51 pm

    Mike, after 2 hours, those who are giving you a thumbs down are not fessing up or jumping in. I did not vote at all on your comments. I agree with you if a commentor uses quotes, I expect to see the exact same quote either higher up in the chain or in an article somewhere. Jmx64tx summarized your paragraph and then used quotes. It confused me and, hopefully, a lesson learned for that person.

    We've both been on this site for quite a while. I suspect the thumbs down might be due to your bigot sentence. Just my 2 cent theory. I appreciate your contributions to EoT.

  • 25. Mike_Baltimore  |  August 13, 2014 at 6:54 pm

    if the downvotes were for the 'bigot sentence', then no explanation is needed? None from at least 7 people who clicked the downvote button?

    Sorry, but I disagree. If there is a downvote, there is a reason for it, and the person who downvotes should be able to express why they did what they did.

    Besides, I've seen those who don't agree with ME described as worse (such as someone describing Chief Justice Roberts as 'Chief Justice of SCROTUS' (not SCOTUS). I've been presuming it could have been a typo. But then again….

  • 26. bayareajohn  |  August 13, 2014 at 8:06 pm

    Mike, it's not all about you.

    But since you demand explanations, lets.

    In a thoughtful post, you mentioned two alternatives about the possible reportage of the clerks that could define the outcome.

    jm64x quoted (accurately, if in part) one of your alternatives and explained, competently and without clear evidence of malice or effort to discredit you, why this alternative isn't the one. Context is right on, and, to me, no intent to misrepresent or "misquote" you. Just a effort to clarify an issue you stated was unclear. Of the alternatives you postulate, jm64x is simply saying "this one isn't it". Again, that's -my- read of it.

    While a hypersensitive personality could leap to presume such a thing was a criticism of their original comment, I really think it's not. The wording could have been more elegant in making that clear, but it shouldn't be required to couch everything in kid gloves. It certainly didn't merit your likening jm64x to disingenuous bigots.

    Which, for the record that nobody owes you, is why -I- downvoted your whip-like snarkiness. Which I'll probably do again when you next come at me or other well-meaning contributors with your knife out.

    Please put the better construction on ambiguous posts by people who are trying to help bring light, not heat, to the discussion. To always look for how you can interpret a comment as a slight is pretty well a definition of trolling. If you really think someone is besmirching you, you could ask for clarification before going all "Mike" on them. Comments on blogs are not studied and crafted legal depositions. Give a little slack before cracking that whip you brandish so well. Goodwill comes back to you, but bad will contaminates everything.

  • 27. Mike_Baltimore  |  August 14, 2014 at 8:55 am

    Your opinion, but not necessarily everyone's opinion.

    When someone implies that the people of Minnesota voted directly for ME, when actually they voted down a proposed amendment to the state constitution and the legislature later voted for ME, how can a person put a "better construction" on that type of post which is patently false?

    When a post is made to correct the incorrect information, but at least 3 people downvote, without explanation, the comment, I'm supposed to just sit there, grin and bear it, and not say anything, letting the incorrect statement stand without correction? I'm just supposed to "give a little slack" to the commenter who posts the incorrect information? Posting and/or downvoting (without explanation) of easily verifiable information is bringing light, not heat, to the discussion? Posting of corrections is bringing heat, not light, to the discussion? Posting of corrections to opinions containing erroneous information is ALWAYS bringing bad will to the discussion?

    Downvotes, without explanation for the downvote, is an 'ambiguous' comment? In what universe? There may be a reason for the downvote, but if not explained, then how can anyone (except the poster of the downvote) actually know if there is or is not a reason for the downvote?

    Your comment about "[c]omments on blogs are not studied. . . ." – so why are there links to other websites, such as 'Joe my God' or 'SCOTUSBlog', with the expectation that EVERYONE will take the author's opinion as a statement of fact? ALL opinion should be taken as exactly that – OPINION, not taken as fact. How many people commenting on the oral arguments before the Supreme Court in 2013 told us that (in their opinion) the Patient Protection and Affordable Care Act (PPACA) was toast? They gave OPINION, but last I heard, the PPACA was alive and kicking after the Supreme Court handed down its ruling. In other words, their presumptions and opinions were not correct.

    Opinion is not fact, just as a guess is not fact. ASSumptions are just that – someone not using facts, just guesses, to form an opinion (there is a difference between ASSumptions [which are almost always nothing but guesses on the part of someone], and presumptions, which are also guesses, but are based on the history of the subject and/or the person who gives their opinion on the subject). Then when someone else takes that ASSumption as FACT, they are compounding the error. The people of Germany, in 1933, were told a mentally deranged Dutch person torched the Reichstag. The ASSumption that this was true is still believed by many even today, almost 100 years after the burning of the Reichstag (presumably on the orders of Hitler or other high Nazi official(s)), although there was evidence within days that it was the Nazis themselves who burned the Reichstag.

    And downvotes without explanation are to be taken as "ambiguous"? If there is no explanation, then how can they be considered "ambiguous"? Osmosis? Mind reading? YOU might have those talents, but your experience is not the same experience as most others. For instance, the majority of people have not had 3 fathers, but I have. The majority of people do not have 47 first cousins, but I did/do. The majority of people do not have an inherited genetic eye disease, but I do. The majority of people currently alive in the US have never lived on a farm, but I did.

    Just because we both are homosexual does NOT mean our life experiences are exactly the same. Many times, even when I (and you) generally agree with someone else, I (and you) can still have differences of opinion. Opinion. Just as there are different opinions among the religious on baptism (full immersion or not?; forward or backward?; once or more times?; right after birth or later, when the person is old enough to make a decision on the matter?; in a special purpose baptismal font or pool, in a river or lake, or in a very large tub in the church basement?; etc.). But because the opinions don't always agree with each other doesn't mean that one person's opinions are always entirely correct (thus that person is always entirely correct), and another person's opinions are always entirely wrong (thus that person is always entirely wrong). When there is no attempt to explain an opinion, though, is when a presumption (or even an ASSumption) can be made that an opinion (such as a downvote without even an attempt to explain) is based on animus, not facts, or even opinion.

  • 28. bayareajohn  |  August 14, 2014 at 9:47 am

    This is why it's futile to explain anything to you, Mike.

  • 29. Bruno71  |  August 14, 2014 at 11:35 am

    Yes, any time any effort is made to relate to him that it's his tone that's unpopular, he just doesn't get it and goes off on multiple tangents. That's why most of us just simply choose not to engage him directly anymore when his snarkiness rears its ugly head, and let the downvotes do the talking. I admire your efforts, but as you can see, all is in vain.

  • 30. bayareajohn  |  August 14, 2014 at 12:03 pm

    It's unfortunate that Mike has no awareness of what he does to his reputation when he explodes at imagined insults and gets genuinely insulting himself.

    Fortunately, his contributions are so frequently valuable, thoughtful, and well researched that on the whole, I'm reluctantly glad he's here.

    I will try to curtail my attempts to promote his objectivity about himself.

  • 31. Randolph_Finder  |  August 13, 2014 at 9:46 am

    Listing of everyone involved = four and a half pages. Order = half a page. 🙂 🙂

  • 32. tornado163  |  August 13, 2014 at 9:51 am

    So where does that leave the other states in the 4th Circuit? If the Virginia stay isn't granted, and Virginia couples can marry pending the merits appeal to SCOTUS, wouldn't it apply to couples in other 4th Circuit states like West Virginia and the Carolinas?

    I assume that for consistency with their stay for Utah, SCOTUS will grant the stay for the 4th Circuit.

  • 33. rob2017  |  August 13, 2014 at 10:45 am

    That would be huge for me and my loving partner. We've been waiting nearly eight years to get married and legally recognized by VA.

  • 34. RnL2008  |  August 13, 2014 at 11:40 am

    So, Same-Sex couples can start getting married in Virginia on Monday? Hopefully it doesn't get stayed by SCOTUS!!!

  • 35. brandall  |  August 13, 2014 at 11:43 am

    Wednesday. The media jumped the gun earlier today with the Monday statement. They were then frantically revising the date to Wednesday. See DaveM_OH's comment above about FRAP 41(b).

  • 36. RnL2008  |  August 13, 2014 at 11:50 am

    Thanks for the reply brandall……..I thought I had read it wrong….again I appreciate the comment

  • 37. Ragavendran  |  August 13, 2014 at 1:33 pm

    Correct – Monday is when the mandate will have normally issued, had there not been a request for a stay or rehearing en banc, so Monday (Aug 18) was in everyone's minds when the Fourth Circuit's ruling came down. People forgot to adjust it after the motion to stay was filed.

  • 38. F_Young  |  August 13, 2014 at 9:15 am

    Old news that popped up recently:

    Wife of top Texas anti-gay crusader divorces him to be with lesbian partner

  • 39. Randolph_Finder  |  August 13, 2014 at 10:46 am

    To be fair, this is exactly what they warned us would happen if Gays and Lesbians were allowed to get married. 🙂 🙂

  • 40. RemC_in_Chicago  |  August 13, 2014 at 10:31 am

    Question for everyone, especially the lawyers. Because of my hearing deficiency, I found it difficult to listen to the audio tapes of the 6th Circuit hearings. I wrote to Patricia S. Connor, Clerk, asking for a transcript per the American Disabilities Act (of 1973). She wrote: "This responds to your letter of July 28, 2014, regarding the Bostic v. Schaefer Case. Appellate arguments are not transcribed by the court, and I am not able to provide you with a transcript." That is the entire response. I've discovered from previous requests for transcripts that they're not easy to come by and that the transcripts can be provided by an outside service. Still, when I've asked the question before, I've gotten a full explanation and helpful information as to where else I could ask for the transcript. This response is entirely unhelpful and unnecessarily terse. I also can't understand how an arm of the U.S. government can completely deny providing equal accessibility services to public information. Anyone have any other ideas how I can get my hands on a transcript? Am I being overly sensitive to the tone of the response?

  • 41. Japrisot  |  August 13, 2014 at 10:44 am

    I am not familiar with how the ADA affects the courts with respect to the provision of transcripts. However, you might want to ask CSPAN. They aired the Sixth Circuit arguments with transcription. Perhaps they did the same for the Fourth Circuit?

  • 42. Eric  |  August 13, 2014 at 12:10 pm

    Courts often don't provide transcription services any more, the parties to the case pay for it privately. Your best bet would be to contact the plantiff's counsel and ask them for a copy. Don't be surprised if they don't offer it for free.

  • 43. Ragavendran  |  August 13, 2014 at 12:16 pm

    The C-SPAN website has what looks like a partial transcript of the oral arguments here:
    The video itself plays with a closed-captions option – but the transcription seems automatic, so replete with mistakes.

    (There are links there to similar pages for the other three oral argument clips.)

  • 44. Mike_Baltimore  |  August 13, 2014 at 12:16 pm

    I worked for the Federal government (most of the years in an independent agency in the Executive Branch). I didn't work for the courts. The management of the building I worked in was private, though.

    I have a corneal eye disease (Fuchs' Endothelial Corneal Dystrophy, or FECD), and have difficulty seeing, especially when there is a yellow-tinged light source. At one time, I was in an office lit by cheap incandescent light bulbs that cast a yellowish glare (fluorescents, though awful for most with FECD, work best for me).

    I threatened to sue, under the ADA, the management company if they didn't change the light bulbs. After getting my doctor to write a letter, just the threat of a law suit (not even from an attorney) worked for me, as the light bulbs were soon changed.

    In your case, since it is a court you are attempting to get information from, a letter from an attorney might be the recourse you need to take. Since you are in Chicago, NorthWestern and the U of Chicago both have well respected law schools (and there may be others I'm not aware of [Loyola? U of I (or is its' law school in Urbana-Champaign)?). You might want to call to see if any of them (or others) could help you, free of charge (most law schools have a requirement that attorneys-to-be do a certain amount of pro bono work for the public).

  • 45. sglaser2  |  August 13, 2014 at 1:32 pm

    Because of separation of powers, many of the expected laws don't apply to the federal courts. For example, enforcement of ADA is done by the executive branch. If courts were subject to it, they would be in some way beholden to the executive branch and that would be bad.

    Makes for some strange situations like this one being legal. They could, of course, have their own, court defined, equivalent rules, but doing that requires work, which won't happen automatically.

    A lawsuit could force their hand, but it would probably have to justify doing something because of court rules and/or the constitutional arguments and could not depend on statues or executive branch rules/procedures/opinions, …

  • 46. Eric  |  August 13, 2014 at 2:20 pm

    Different court in a different circuit, but this may give some insight:

    In short the ADA doesn't apply to the federal judiciary, but they do make reasonable accommodations. Copies of third-party transcripts would most likely not be one of those accommodations.

  • 47. Mike_Baltimore  |  August 13, 2014 at 2:47 pm

    According to the DoJ web site dealing with the ADA and related legislation ( ):

    Section 508 of the Rehabilitation Act summary:

    "Section 508 establishes requirements for electronic and information technology developed, maintained, procured, or used by the Federal government. Section 508 requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.

    An accessible information technology system is one that can be operated in a variety of ways and does not rely on a single sense or ability of the user. For example, a system that provides output only in visual format may not be accessible to people with visual impairments and a system that provides output only in audio format may not be accessible to people who are deaf or hard of hearing. Some individuals with disabilities may need accessibility-related software or peripheral devices in order to use systems that comply with Section 508. For more information on section 508, contact:

    U.S. General Services Administration
    Office of Government-wide Policy IT Accessiblity & Workflow Division (ITAW)
    1800 F Street, N.W.
    Room 2222 – MEC:ITAW
    Washington, DC 20405-0001

    (202) 501-4906 (voice) "

    The GSA provides goods, services, and assistance to the Federal Court System.

    I believe the US Courts are considered part of the Federal government. A good attorney or attorney-to-be should be able to tell someone how Section 508 of the Rehabilitation Act does or does not apply, and/or if there might be more appropriate laws that would apply.

    Oh, and most laws on disabilities require that there be a means of resolution, be it through a law suit or through other means, including mediation.

  • 48. sglaser2  |  August 13, 2014 at 11:07 pm

    As usual, it's confusing. A friend of mine that's an employee of the court explained that many of the usual rules don't apply to them cause of separation of powers.

    In Golinski (, an employee of the 9th circuit sued for health coverage for her wife. Because OPM provided that service to the courts, DOMA applied, even though the employee was a court employee.

    It could depends on technicalities. Is GSA providing a "publishing service" to the court (in which case GSA could be required by 508 to publish stuff in ADA friendly ways)? Alternatively, is GSA providing the "audio distribution hardware" to the court (in which case GSA could be required to make ADA friendly equipment available to the court, if asked, but it might be up to the court to decide whether or not to ask for this equipment and to decide how to use whatever equipment they get)?

    Since this issue is closer to rules about how the court operates (which are more clearly the province of the courts to decide), this might be viewed as enough different from Golinski to get a different answer.

  • 49. Jen_in_MI  |  August 13, 2014 at 5:38 pm

    Crud! I tried to upvote your comment and did just the opposite. My pudgy fingers apologize (I'm on my phone reading this site.) 😉

  • 50. mariothinks  |  August 13, 2014 at 10:44 am

    We needed this win, especially after what happened in Tennessee and how the oral arguments in the 6th Circuit Court went. Hopefully, we can get on another winning streak, although a stay from Roberts is imminent.

  • 51. MichaelGrabow  |  August 13, 2014 at 11:25 am

    Florida news

  • 52. brandall  |  August 13, 2014 at 11:41 am

    While I applaud their intentions by making this statement, good luck trying to figure the allocated costs. To my knowledge, there has been no tally of what the state is spending to defend the ban. And if Bondi gets her way and gets all the cases stalled until SCOTUS, there will be minimal future costs. The Commission would have been better off pushing Bondi to speed up the cases to the Florida Supreme Court. Maybe they could have offered to pay for the appeals. After all, it is Bondi who is a staunch supporter of states rights. Obviously, she fears testing these cases in her own state courts.

  • 53. brandall  |  August 13, 2014 at 11:31 am

    As expected, McQuigg's counsel (Alliance Defending Freedom) will appeal to SCOTUS.

    "Mr. Connelly said he was optimistic about the chances of getting a stay since the court issued such an order to delay implementation of a similar decision in Utah. “We would expect that, being no substantive difference, that the Supreme Court would grant the application.”"

    While the underlying findings in both Kitchen and Bostic follow similar paths, do 22 pro-ME Federal Court decisions since Kitchen make any substantive difference for SCOTUS to grant a stay in Bostic? Does this change the "likelihood of success" from when Kitchen was the 1st decision? There is no precedent to rely on.

    Read more:

  • 54. Ragavendran  |  August 13, 2014 at 12:09 pm

    Besides the substantive difference claim (in terms of the legal issues/questions raised), ADF is wrong that this situation is similar to Utah's December situation. That was a stay of a district court order, whereas this one is a stay of an appeals court. BIG difference. In granting the stay in Kitchen, the Supreme Court only said that the stay was in place until the Tenth Circuit issues its mandate. (And the Tenth's decision to sua sponte stay its mandate was entirely discretionary.) It is being wrongly read as the Supreme Court sent a message that there should be a stay until the Supreme Court itself has a chance to decide the matter.

    In summary, if the Supreme Court grants a stay of the Fourth Circuit decision, it will be the first time the Court is indicating that a stay should be in place until disposition of a cert petition before it.

  • 55. Bruno71  |  August 13, 2014 at 12:18 pm

    While you're of course technically correct, it is notable that the 10th Circuit and other justices (such as Judge Crabb in Wisconsin) read SCOTUS' stay in Kitchen as an indication that stays should be in place until SCOTUS considers cert. Unfortunately. We'll see if they were correct in their assessment in the next few days.

  • 56. brandall  |  August 13, 2014 at 12:40 pm

    “But, this court is not some modern day haruspex skilled in the art of divination. This court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it ‘thinks’ or ‘perceives’ the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.”

    Judge Raymond P Moore – Burns v Hickenlooper

  • 57. Bruno71  |  August 13, 2014 at 12:48 pm

    However he did stay the ruling pending appeal. Marriages did not happen as a result of his unwillingness to be the one to put a permanent stay on the ruling. I think in his mind, he knew there would be a stay when it got to the 10th Circuit.

  • 58. Ragavendran  |  August 13, 2014 at 1:41 pm

    To clarify, Judge Moore only issued a 30-day temporary stay, to allow time for the Tenth Circuit and SCOTUS (if necessary) to weigh in. Accordingly, there is a pending motion for a stay currently yet to be ruled on before the Tenth Circuit. I don't know why there hasn't been a ruling yet, but if the Tenth Circuit or the Supreme Court doesn't step in by August 22, marriages can begin statewide in Colorado.

    BTW, the Tenth Circuit has set a briefing deadline of September 22 for Suthers's opening brief in this appeal.

  • 59. Alan948  |  August 13, 2014 at 2:58 pm

    In light of today's order, we're almost certain to see another SCOTUS decision on a stay by August 20. Therefore, I expect that the 10th circuit will now wait and see what SCOTUS says before deciding on the Colorado stay.

  • 60. Ragavendran  |  August 13, 2014 at 3:48 pm

    Possible. If that happens, Suthers will probably panic and ask the Supreme Court for an emergency stay himself on the grounds that the Tenth has still not ruled on his stay request. How fun. It is telling that the Tenth Circuit is stalling this long already, given how easy it should be for the Court to grant the stay given that it has already done it for UT and OK and got slapped down by SCOTUS twice.

    Also, if the Supreme Court refuses to stay the Fourth Circuit, that would immediately lead to motions from the UT and OK plaintiffs before the Tenth Circuit to lift its stay and issue mandates immediately.

  • 61. brandall  |  August 13, 2014 at 3:56 pm

    While I always believe you to be extremely accurate, I must take exception with "Suthers will probably panic and ask the Supreme Court for an emergency stay himself"….Instead, it is more likely Suthers will absolutely panic, ask the wrong court for the wrong type of injunction and probably get the parties names wrong. There is a history here…..

  • 62. Ragavendran  |  August 13, 2014 at 4:06 pm

    I agree… Your version will be funner to watch – and by the time he realizes his mistakes, the deadline will have passed and marriages will have begun 🙂

  • 63. ebohlman  |  August 13, 2014 at 4:55 pm

    Remember that the only stays the 10th Circuit has granted are the ones on its own decisions. AFAIK, they've turned down every emergency stay request they've gotten regarding lower-court decisions. I think I read somewhere that they have a reputation for being quite stingy with interlocutory orders.

  • 64. Bruno71  |  August 13, 2014 at 5:36 pm

    We'll see what they do there. Perhaps they'll pass the buck on to SCOTUS again.

  • 65. brandall  |  August 13, 2014 at 12:36 pm

    Good catch on this being a stay by an appeals court. The other thing the wrong in these media reports is they are all using bold headlines saying marriages will begin next Wednesday. FTM and other groups are sending out tweets saying it's a done deal. What a discourtesy to VA couples in light of the probability SCOTUS issues a stay.

  • 66. Bruno71  |  August 13, 2014 at 12:39 pm

    I know, that just burns me to no end when the media does that. LGBT blogs are often just as bad as the mainstream media too.

  • 67. GregInTN  |  August 13, 2014 at 12:03 pm

    I think the criteria SCOTUS is using is just whether or not an official with standing is appealing the decision. In Oregon and Pennsylvania they turned down the stay requests from parties who didn't have standing to appeal the District Court decision. Otherwise, gay=stay. So, I think VA will be in the same category as UT, OK, etc.

  • 68. ebohlman  |  August 13, 2014 at 2:09 pm

    Hard to say; we may be back at square one. The two emergency stays issued by the SCOTUS both involved cases (Kitchen and Evans) that hadn't been heard by an appellate court. The two that were denied, as you say, were requested by improper parties. Those are the only emergency stay requests that have gone to the SCOTUS; all the other stays were either sua sponte decisions of the courts that ruled or orders issued by appellate courts in cases they hadn't heard yet.

    About all I can safely predict is that Roberts will refer the request to the entire Court.

  • 69. brandall  |  August 13, 2014 at 1:37 pm

    As we saw in Prop 8 and the state ME bans, certain religious organizations played a big part in whipping up their members to vote for the bans using tax deductible donations that fund the ministers, priests and churches. Add to this 50+ years of actively condemning the LGBT community for theirs sins against God and claiming they can change people to be straight. The result is most LGBT folks don't see themselves as wanting to be associated with organized religion. What a surprise.

    Gallup's new study looks at this. I'm sure the anti-ME nut cases will use this data to now say LGBT's are atheists who want to destroy your church. And one big caveat…respondents in studies overstate their commitment to religion, frequency of attendance and other levels of involvement.

  • 70. Eric  |  August 13, 2014 at 2:24 pm

    That frequency of attendance is a criteria to determine one's commitment to superstition highlights the Abrahamic bias of the questions.

  • 71. Nyx  |  August 13, 2014 at 2:54 pm


  • 72. brandall  |  August 13, 2014 at 3:01 pm

    This is not new news. It is the UPDATE at the top of the page or read just about anywhere in today's comments……

  • 73. brandall  |  August 13, 2014 at 3:23 pm

    AZ: State Appeals Court Overturns Lower Court In Favor Of Transgender's Divorce

    It took me 3 times to read this to figure it out. A female determines she should be a male, but retains female reproduction capabilities. He changes his gender on official records in HI. He marries in HI and he bears 3 children (his wife could not bear children). They try to divorce in AZ, but a court rules they are physically a same sex couple.

    The Appeals Court overruled being careful to note this was not about SSM, but about legal gender ID.

  • 74. Jen_in_MI  |  August 13, 2014 at 5:57 pm

    Thank you for flagging this development. It is a huge distinction and I am favorably impressed that the Appeals Court appears to understand that SSM and gender identification cases are not interchangeable (apologies for the clunkiness of my phrasing here).

  • 75. mjnichol  |  August 13, 2014 at 4:11 pm

    Will this bring marriage equality to NC and SC too, if SCOTUS declines to stay?

  • 76. Ragavendran  |  August 13, 2014 at 4:19 pm

    If SCOTUS denies a stay, then, as soon as the mandate issues next week, the law is officially changed in the Fourth Circuit, and its decision in Bostic officially becomes binding precedent on all federal courts in the Fourth Circuit. Therefore, any pending cases in the other states should be closed fairly quickly with a favorable summary judgment (I wouldn't be surprised if there are no oral arguments), unless judges find other reasons to stall, e.g., wait and see if SCOTUS grants cert in the Bostic appeal. I doubt that such reasons would be considered legitimate, though.

  • 77. brandall  |  August 13, 2014 at 4:29 pm

    Adding to Ragavendran's comment, there are currently motions filed in each of the NC and SC cases to move the cases forward to Summary Judgment. These cases were previously placed on hold pending the 4th Circuits decision. The ME org's do not want to see these cases placed on hold again pending a SCOTUS outcome or it adds a delay after SCOTUS has ruled.

  • 78. mcazmi  |  August 14, 2014 at 7:40 am

    Although the supporters of the ban repeatedly suggest that SCOTUS finding state bans constitutional would invalidate marriages that took place after court rulings, I find it extremely unlikely that SCOTUS would do that. In the event that they say states can deny this right, they are likely to add that current marriages are valid regardless. Court rulings made changes in the law. Whether that is temporary should have no retroactive effect for people who acted within the law at the time. Think about it. If a state were to change the age of consent for marriage, does that mean people who got married "young" before the new law took effect would see their marriages invalidated?

  • 79. ranjitbahadur0  |  August 14, 2014 at 8:08 am

    Its not exactly the same situation – when a court decision is vacated it is as if "it never happened" and so the marriages that resulted from it are indeed void.
    As much as everyone hates them, this is the very reason for the "Stays" that are placed on most decisions under appeal, to prevent such a situation.

    The example you raise is different because the "first law" regarding the age of consent was never in dispute.

  • 80. Bruno71  |  August 14, 2014 at 11:39 am

    Those court decisions wouldn't be "vacated," however. "Overruled" would be a better term. I have some serious doubt that SCOTUS would invalidate those marriages.

  • 81. Steve  |  August 13, 2014 at 4:27 pm

    There is no way the Chief SCROTUS will decline a stay

  • 82. mcazmi  |  August 14, 2014 at 5:44 am

    Don't be so sure. There is a point everyone seems to be missing. This stay issue is not the same as the Utah stay. If you read the Utah stay, SCOTUS put a stay on the district court ruling until the appeals court rules. Technically, their stay ended when the appeals court ruled. They seem to want to stay district court rulings, but they have yet to stay an appeals court decision. This is going to be the test. I'm not %100 sure that they will stay an appeals court decision because doing so is a giant sign that says we will take a ssm case. They may not have decided that amongst themselves yet.

  • 83. Ragavendran  |  August 14, 2014 at 7:25 am

    Agreed. I remember it being discussed in December that it is rare enough that the Supreme Court steps in to stay a district court order when an appeals court refuses to do so. It should be rarer still for the Court to stay an appeals court order. As you put it, it is a test of how strong the gay=stay doctrine is, and we'll know soon.

  • 84. brandall  |  August 14, 2014 at 8:57 am

    Fascinating. So, while I've been ranting about the 22 pro-ME Federal decisions and "likelihood of success" for the stays, you've saying the stays could end because this is the first Appeals Court to deny a stay that will be in front of SCOTUS. Do you believe this carries more weight with SCOTUS than the winning streak?

  • 85. Ragavendran  |  August 14, 2014 at 11:14 am

    Yes, SCOTUS will have a harder time justifying gay=stay (within whatever baffling top-secret logical framework they've formulated, assuming there is one) now that an appeals court has ruled on the merits. Also because the winning streak is composed overwhelmingly of district court decisions, which SCOTUS cares little about, except possibly where a trial was held.

  • 86. brandall  |  August 14, 2014 at 11:22 am

    Thank you as always. Perhaps when this is all decided and done, either RBG will just freely explain their "baffling top-secret framework" or we can fly together to a conference where there is a Q&A with Sotomayor and ask her. One of life's mysteries I would like to know.

  • 87. MichaelGrabow  |  August 14, 2014 at 5:47 am

    WV too!

  • 88. MichaelGrabow  |  August 14, 2014 at 8:59 am

    Thumbs down for stating a fact. Makes sense.

  • 89. brandall  |  August 14, 2014 at 9:21 am

    LMAO! Good one.

  • 90. Sagesse  |  August 13, 2014 at 5:43 pm

    From the National Law Journal. A profile of Neal Katyal, the former Acting Soliciter General of the the United States, who has joined the team taking the Utah ME case to the Supreme Court.

    Supreme Court Advocate Sees Urgency in Marriage Fight [National Law Journal]

    This site requires registration, but I get a certain number of free articles each month. Hope those who are interested will be able to access it.

  • 91. Zack12  |  August 14, 2014 at 2:20 am

    Honestly, I would trust him heading this more then Olson & Boies but that is me.

  • 92. brandall  |  August 14, 2014 at 8:50 am

    Would you please elaborate on this a bit more? Just curious.

  • 93. Ragavendran  |  August 14, 2014 at 7:34 am

    Hopefully they file their response by next week so that Utah's petition will be ready for the Justices during their September long conference, instead of October. The article seems to indicate that Katyal is wasting no time in doing this:

    The response to Utah's petition in Herbert v. Kitchen is due on Sept. 4, but Katyal and his colleagues hope to file before that date. "I've been working on this case for approximately a month now," Katyal said. "We have nine people on it. We hope to file quite soon, although we obviously don’t have to. We feel it's better to give the court more time on this. We will do everything to tee this up for the court in the most respectful and thoughtful way."

  • 94. ragefirewolf  |  August 13, 2014 at 7:56 pm

    Okay, I know this might be a silly question. If the 4CA issues its mandate and SCOTUS doesn't stop it, will that mandate affect the whole circuit's bans? Everything I've read so far only mentions Virginia…

  • 95. DrPatrick1  |  August 13, 2014 at 8:57 pm

    Each case only settles itself once decided. However, in your scenario, it would establish binding precedent throughout the 4th circuit which would allow the stalled appeals in the other states to proceed, and almost certainly in our favor.

    Although this would not bind the other circuits, it would certainly send a strong signal as to the direction this is moving.

  • 96. Bruno71  |  August 14, 2014 at 11:47 am

    Ideally what we would see is the people in charge of marriage licenses in these states capitulate on the spot and use the Circuit Court ruling as direction. Certainly their counterparts in more liberal states would do so. I don't know if we would see that in any of the 4th Circuit states in question, though.

  • 97. scream4ever  |  August 13, 2014 at 9:09 pm

    Not immediately, but it would greatly speed up the process in getting them overturned. Also, there would be no appeals or stays due to the precedent set.

  • 98. Zack12  |  August 14, 2014 at 2:21 am

    Indeed.. the other bans will basically have nothing to survive with.

  • 99. RemC_in_Chicago  |  August 13, 2014 at 8:57 pm

    Not sure how to provide a blanket 'thank you' to the generous and helpful responses I got from everyone about my ADA/transcript question, so pardon me for doing it here as a separate item. I will follow your suggestions and can't thank you all enough for the trouble you went to in responding!!!

  • 100. Margo Schulter  |  August 14, 2014 at 12:49 pm

    Bruno71, what I’d generally say is that SCOTUS “reverses” a lower federal court on the merits; for example, at least at one time not too far back, the Ninth Circuit had a reputation for being the “most reversed,” especially in cases involving issues of criminal justice.

    The situations I’m familiar with for vacating a decision are illustrated by Hollingsworth v. Perry, where the Ninth Circuit decision was vacated for lack of a party with Article III standing; and, quite possibly, in the Hawai`ian case of Jackson v. Abercrombie, where Hawai`i’s enactment of marriage equality legislation in late 2013 renders the case moot, so that the plaintiffs are seeking that the unfavorable pre-Windsor ruling in federal district court in their case be vacated.

  • 101. Margo Schulter  |  August 14, 2014 at 12:53 pm

    When I hear the term “overrule” in connection with SCOTUS, my first reaction is that it might refer to the Court overruling one of its own precedents. Oft-cited examples are Plessy v. Ferguson (1896), overruled by Brown v. Board of Education (1954); and Betts v. Brady (1942), overruled by Gideon v. Wainwright (1963).

  • 102. Equality On TrialSupreme &hellip  |  August 15, 2014 at 9:55 am

    […] After the Fourth Circuit Court of Appeals declined to issue a stay of the mandate in Bostic v. Rainey, the challenge to Virginia’s same-sex marriage ban, […]

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