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Supreme Court asked to stop same-sex couples from marrying next week

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The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
UPDATE: Chief Justice Roberts has called for a response, to be filed by Monday. (h/t SCOTUSBlog.)

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, the clerk who is defending the ban has, as expected, filed a request in the Supreme Court for a stay.

The application goes first to Chief Justice John Roberts in his capacity as Circuit Justice for the Fourth Circuit. The clerk is attempting to halt issuance of the mandate until the Supreme Court handles the petitions for review, either by granting or denying them. She’s expecting to file a request in the Supreme Court, in the coming weeks, to review the Fourth Circuit decision striking down the ban.

Virginia Attorney General Mark Herring has filed his own petition for review in the case. Herring agrees with the same-sex couples that the ban is unconstitutional, but he’s said he wants to ensure there’s no delay in seeking review of the issue of marriage equality.

The Washington Blade has more on what’s at stake:

Unless the Supreme Court intervenes, same-sex couples could start obtaining marriage licenses from clerks’ offices in Virginia after the Fourth Circuit issues the mandate on its decision, which is set to occur 8 am on August 21.

The petition from Alliance Defending Freedom was delivered to Chief Justice John Roberts, who’s responsible for stay requests for the Fourth Circuit. Roberts can decide the matter on his own, or refer the request to the entire court.

It remains to be seen what action the Supreme Court will take, but justices have previously granted stays on similar decisions in favor of marriage equality.

In the lawsuit seeking marriage equality in Utah, Kitchen v. Herbert, the U.S. Supreme Court in January issued a stay on same-sex weddings already taking place in the state as a result of a district court ruling striking down the state’s ban on same-sex marriage. Additionally, in the case of Evans v. Utah, the Supreme Court issued a stay on state recognition of these 1,300 marriages after the U.S. Tenth Circuit Court of Appeals deemed Utah for the time being should consider them valid.

Shannon Minter, legal director for the National Center for Lesbian Rights, nonetheless said he sees room for the Supreme Court to deny a stay this time around in the Virginia case.

“A lot has changed since the Court issued a stay in Kitchen, which was the first district court decision in the entire country striking down a state marriage ban after Windsor,” Minter said. “There are now many other such decisions, in every corner of the nation. The Court could decide that a stay is no longer warranted.”

As the Blade notes, if the Court were to deny the request, the Bostic decision would become binding on the entire Fourth Circuit Court of Appeals. Without a stay, the mandate would issue on Thursday, August 21, at 8AM ET.

Thanks to Equality Case Files for these filings


  • 1. MichaelGrabow  |  August 15, 2014 at 8:05 am

    Is the thought that Justice Roberts will refer the request to the entire court?

  • 2. DaveM_OH  |  August 15, 2014 at 8:11 am

    Most likely.

  • 3. Roulette00  |  August 15, 2014 at 9:20 am

    If Roberts wants there not to be a stay, that's the only strategic choice. Though she must start with the justice assigned to her circuit, the complainant can keep asking one justice after another until she gets it. Referring to the whole court gives the possibility of nullifying 2 or 3 sympathetic justices.

  • 4. B_Z  |  August 15, 2014 at 9:41 am

    Why do we think Roberts wants there not to be a stay?

  • 5. ragefirewolf  |  August 15, 2014 at 9:51 am

    At this late stage, unlike with Kitchen, this case is fully appealed in the 4CA at the time of the stay request and granting a stay would indicate they would be reviewing the case. That might "tip their hand" too early, I think.

  • 6. B_Z  |  August 15, 2014 at 9:54 am

    Why? It could just indicate that they intend to grant cert on *one* of the marriage cases, and hold all the others until that one is resolved (same as they did for DOMA and ACA).

  • 7. ragefirewolf  |  August 15, 2014 at 9:56 am

    That's true. Hmm. We don't know if they'll take Kitchen either though.

  • 8. jjcpelayojr  |  August 15, 2014 at 11:18 am

    Wouldn't one think that the court would take Kitchen over Bostic because the state has a sincerity in its defense of the case whereas Bostic would give them a repeat of the state's position in Windsor?

  • 9. ragefirewolf  |  August 15, 2014 at 11:24 am

    That's a really good point. The Bostic does seem similar to Windsor in the respect of how the defendants switched postions.

  • 10. Bruno71  |  August 15, 2014 at 11:32 am

    McQuigg is almost certainly a valid defendant with a controversial position to the plaintiffs.

  • 11. jjcpelayojr  |  August 15, 2014 at 1:39 pm

    But isn't McQuigg's position weakened by the fact that she only represents one county and that neither the Governor or state AG does not agree with her? This, in comparison to Kitchen where the Governor and AG are in lock-step to defend the state's constitution?

  • 12. Bruno71  |  August 15, 2014 at 1:46 pm

    I don't know if it's weakened in terms of the merits of the case itself, but in terms of her standing to appeal and position in controversy to the plaintiffs, that's all been validated by the lower courts. So, I suppose SCOTUS could choose Kitchen based on the fact that there's a more forceful defense that involves the Gov & AG, but it wouldn't be similar to the technical point made in Windsor, i.e. the Prez and his administration agree with the plaintiffs, and no other defendants are present.

  • 13. jjcpelayojr  |  August 15, 2014 at 3:10 pm

    Yeah, I don't disagree that it's not weakened regarding the merits, moreso on the perception as well as the issue at hand.

    I'm hoping whatever case SCOTUS brings up also challenges Article 2 of DOMA so that can go away…regardless if it was targeted against the LGBT community, it's not something that should be law as it relates to the 14th amendment.

  • 14. Bruno71  |  August 15, 2014 at 11:25 am

    I really think it tips their hand more if they deny the stay. How would it look if they allowed marriages to occur in Virginia, then ruled against us in a ME case? I believe it's this reason above all else that they impose "gay = stay" to begin with. They just don't want to tip their hand or feel boxed in when the issue finally comes before them properly.

  • 15. Roulette00  |  August 15, 2014 at 10:07 am

    I wasn't trying to speculate that Roberts wants there not to be a stay, only that the best strategic choice in that case is to refer to the full court. Given that there are sympathetic justices who would be happy to grant the stay, simply declining to stay is an unlikely choice. He could, of course, grant the stay himself.

  • 16. Ragavendran  |  August 15, 2014 at 10:35 am

    If a sympathetic justice grants the stay, it need not end there. Respondents Bostic et al. have the option of appealing that to the full court.

  • 17. Bruno71  |  August 15, 2014 at 11:26 am

    Which is why I think he'll refer to the full court either way.

  • 18. brandall  |  August 15, 2014 at 10:03 am

    Here are the past 4 SCOTUS ME Appeals:

    Kitchen, Utah 2/6/14 – Granted, Sotomayor with entire court
    NOM, Oregon 6/4/14 – Denied, Kennedy with entire court
    Santai-Gaffney, Pennsylvania 7/9/14 – Denied, Alito only, citing NOM case
    Herbert, Utah 7/18/14 – Granted, Sotomayor with entire court

    IMHO, the history says he will refer this to the entire court.

  • 19. brandall  |  August 15, 2014 at 10:36 am

    Looking at the 4 SCOTUS appeals I posted above, there is clearly some concern by McQuigg's counsel (ADF) that SCOTUS could deny the stay due to standing. One-and-a-half pages are devoted to pointing out the NOM and Santai cases do not control this one.

    Bostic is a bit more convoluted than Kitchen due to the Gov and AG election changes and subsequent switch in the state's position followed by McQuigg's later intervention and takeover of the former AG's filings. McQuigg is elected and should have the unquestioned authority for standing (as pointed out by sfbob yesterday).

    Yesterday's filing states "Registrar Rainey anticipate filing a response in support staying the mandate." So, we should see an additional Defendant's filing today or by Monday.

  • 20. sfbob  |  August 15, 2014 at 10:49 am

    That move did strike me as being odd and even a bit paranoid. Maybe she felt she needed to cover all the bases, just in case her standing to appeal were questioned.

  • 21. Ragavendran  |  August 15, 2014 at 10:37 am

    You could also think of the history another way. Justices in the Windsor majority referred to the entire court, whereas others (just Alito so far) decided on their own. If you look at it this way, Roberts is likely to decide on the stay request himself 🙂

  • 22. sfbob  |  August 15, 2014 at 10:47 am

    I'm not sure much can be gleaned from that history, at least not in the way you suggest. Santai-Gaffney's request was such a sideshow that even Alito didn't think a stay was worth granting. And Santai-Gaffney neither went to another justice nor did she appeal to the entire court.

  • 23. Ragavendran  |  August 15, 2014 at 11:00 am

    Of course. Being a computer scientist, I couldn't resist pointing out a different way of analyzing the data when I saw Brandall's analysis. I didn't mean to suggest that this way is more likely to predict Roberts's move than any other.

  • 24. andrewofca  |  August 15, 2014 at 11:23 am

    Ragavendran, I see things from a Windsor perspective too… i.e. it makes sense that the majority judges would defer to the full court out of respect for their colleagues more than the dissenters would.

  • 25. Bruno71  |  August 15, 2014 at 11:28 am

    When Justice Kennedy received a request to put a stay on marriages in California last summer after the 9th Circuit dissolved its own stay, I don't believe he referred it to the entire court.

  • 26. StraightDave  |  August 15, 2014 at 2:02 pm

    That's because the denial was such a slam dunk on the merits. He probably didn't even put his coffee cup down before saying No. I wouldn't read much into that one.

  • 27. brandall  |  August 15, 2014 at 3:13 pm

    You are both correct. The Pro Prop 8 group was merely trying to get SCOTUS to force the 9CA to provide them with the usual (through not mandatory) 25 day waiting period while they scurried over to the CA Supreme Court to claim the decision only applied to 2 counties. Do you think he even had to pick up his coffee cup?

  • 28. Ragavendran  |  August 15, 2014 at 2:15 pm

    You are right – I was just looking at the four instances that brandall listed above. In addition, I think that instance can be distinguished from these four in a few ways, e.g., it was a post-SCOTUS-decision-motion that, if granted, would achieve nothing but a few days delay. But here, the motions are asking for a stay pending future SCOTUS review.

  • 29. Lynn_E  |  August 15, 2014 at 11:47 am

    But the two appeals that were denied clearly lacked standing IIRC.

  • 30. mariothinks  |  August 15, 2014 at 8:17 am

    Chief Justice Roberts has asked for reply briefs by Monday 5 p.m.

  • 31. robbyinflorida  |  August 15, 2014 at 9:32 am

    Would it help for the AG and Gov of NC to reply asking to deny the stay?

  • 32. Mike_Baltimore  |  August 15, 2014 at 9:43 am

    The AG of NC? Possibly, maybe even probably.

    The Gov. of NC? He's trying to make an impression with the Tea Party, so his attempts would probably be as effective as Suthers attempts in Colorado. In other words, not so much.

    Edit – The AG of NC is NOT a Republican, and is widely considered to be the leading Democratic candidate for Governor of NC in 2016. Many consider him to be the leading candidate, no matter the political party in which he is registered.

  • 33. ragefirewolf  |  August 15, 2014 at 9:52 am

    Maybe. Not after what Virginia AG Herring has filed, I think.

  • 34. scream4ever  |  August 15, 2014 at 7:12 pm

    But he is not requesting for the ruling to be stayed remember.

  • 35. ragefirewolf  |  August 16, 2014 at 12:38 am

    That is not correct, I'm afraid…

  • 36. Dave_wx  |  August 16, 2014 at 6:15 am

    Herring may be trying to force the justices' hands to take the case by staying the ruling.

  • 37. Zack12  |  August 16, 2014 at 7:50 am

    He is while also trying to stop the ADF bigots from mucking it up.
    If they grant a stay, that means they will be taking it up.

  • 38. hopalongcassidy  |  August 15, 2014 at 10:18 am

    Another claim of 'irreparable harm' if request for stay is denied – without even any attempt to clarify or identify such 'harm'…..bah.

  • 39. sfbob  |  August 15, 2014 at 10:43 am

    I noticed that as well. I'm not sure what harm would befall the state of Virginia were marriages to continue, other than that they'd have to print up a batch of gender-neutral marriage application forms. And, in the unlikely event that the lower court ruling was overturned and the amendment reinstated, they might have to inform any couples who were married that their marriages were not valid. The Boulder County Clerk's office was instructed to keep records of same-sex marriages just in case of such an event. So clearly it is an inconvenience rather than "irreparable harm."

  • 40. hopalongcassidy  |  August 15, 2014 at 10:46 am

    I suppose they could argue that the state would become terminally icky…

  • 41. sfbob  |  August 15, 2014 at 11:05 am

    Or worse yet, that state might actually have to live up to their marketing slogan, "Virginia is for lovers."

  • 42. MichaelGrabow  |  August 15, 2014 at 11:16 am

    I just received new license plates in the mail and the standard plate now has that slogan. I wouldn't have appreciated that if it were not for Judge Wright Allen.

  • 43. andrewofca  |  August 15, 2014 at 11:19 am

    The ickiness would also result in untold confusion and chaos, especially for the poor gay couples who got married.

  • 44. ragefirewolf  |  August 15, 2014 at 11:27 am

    Not sure if you're playing on the sarcasm there or not

  • 45. andrewofca  |  August 15, 2014 at 11:30 am

    lol I was trying to recall the stay arguments Herbert gave in the Utah case to get Shelby's ruling stayed.

    I guess I'm not very good at sarcasm 😉

  • 46. ragefirewolf  |  August 16, 2014 at 12:28 am

    It's fine…I was just confused by your comment 🙂

  • 47. RnL2008  |  August 15, 2014 at 11:48 am

    I seriously doubt that any marriages performed would be considered invalidated…….once a marriage license has been filed legally….it would be hard to nullify it.

    If you remember correctly in the Strauss vs Horton ruling in May of 2009 by the CSSC, Kenneth Starr tried to NOT have recognized the 18,000 legal marriages done before the passage of Prop 8 and was shot down rather quickly.

    I just DON'T see how SCOTUS could rule to invalidate legal marriages when they refused the Stay( if they do).

  • 48. ranjitbahadur0  |  August 15, 2014 at 12:28 pm

    The difference is that before the passage of Prop 8, the legality of SSM in California was (for the window period) not in dispute. The passage of Prop 8 was an "after the fact" legislation, and legislation can not and does not nullify the law that came before it.

    The difference as I see it now is that until the district court mandates are final – and they are NOT as long as the appeals process is continuing – there exists the possibility that they will be vacated which is equivalent to them never having been issued in the first place. That is the whole REASON that stays on judicial rulings exist – in order to preserve the status quo (as unfair as it may be) while things are finalized.
    Further, we have already seen that unlike CA the jurisdictions in question now maintain that those marriages never took place, and that they are not required to recognize them. Only one order has been issued (in UT) which has been stopped by the SC as well.

    While I personally happen to agree with you Rose, my opinion is not the one that matters – and as things stand, the marriages in CO, UT, AR, MI, IN, WI (and for that matter OR and PA) are still very much up in the air.

  • 49. Bruno71  |  August 15, 2014 at 12:40 pm

    Those District Court rulings ARE final. They can't be "vacated." They are not "on appeal." They can, however, be overruled by a higher court such as SCOTUS in a different case. The marriages would still have legal force, in my opinion.

    edit: I want to clarify that I'm referring here to the OR, PA, & CA District Court cases. While the other ones in states like WI, CO, IN, UT, etc. are final and binding, they are open to reversal by a higher court. The OR, PA, & CA are NOT, and therefore cannot be vacated or appealed.

  • 50. Japrisot  |  August 15, 2014 at 12:55 pm

    Not really. As Rose indicated above, Strauss v. Horton emphasizes that a retroactive application of Proposition 8 squarely conflicts with the Due Process Clause. A multi-factor test applies, and includes considerations like the extent of reliance upon the law and, the extent of actions taken upon that reliance, etc. The origin of the law, either through referendum, legislation, or judicial opinion, does not factor.

  • 51. ragefirewolf  |  August 15, 2014 at 1:09 pm

    Thank you for clarifying that, Japrisot.

  • 52. JayJonson  |  August 15, 2014 at 4:59 pm

    Japrisot and Rose are correct that Strauss v. Horton said that a retroactive application of Proposition 8 would conflict with the due process clause. But it is well to remember that Strauss v. Horton was a state Supreme Court ruling that said that a retroactive reading of Prop 8 violated the STATE due process clause. It, of course, said nothing about the federal due process clause and there is no assurance at all that a federal court is going to interpret the U.S. Constitution in the same way. A federal court is certainly not bound by a California State Supreme Court ruling.

  • 53. DrPatrick1  |  August 16, 2014 at 8:21 am

    That same CASC ruled the 2004 SF marriages to be invalid. I believe ranj has a proper analysis above. Prop 8 functioned to repeal the CASC decision granting ME in CA. It's wording did not attempt to address the invalidation of the window marriages, and thus those marriages rightfully remained valid.

    In the instances where there are active appeals, there is no final mandate until the appeal is complete. As such, there is at the very least a legal argument to be had as to the validity of those marriages.

    In OR and PA there is no valid appeal, and thus those marriages are secure no matter what SCOTUS does with UT VA etc.

    I, of course, would like to see those marriages stand, and I think when all is said and done we will win at SCOTUS. In the unlikely event we lose, it will take another round of cases to decide what happens with these new batches of window marriages

  • 54. ragefirewolf  |  August 15, 2014 at 12:57 pm

    Legislation can absolutely "nullify" previous law from before (within the right context), that's how we repeal laws – and in this case, it is not legislation we are talking about, but state constitutional amendments, which are higher law than statues. I'm guessing that's not what you meant.

    I would never want to see anyone's marriage be made void, but that happened recently in Australia with the ACT marriages and it could happen here, although I'm pretty sure it won't. It did happen with San Francisco, CA and New Paltz, NY. States are constitutionally forbidden from arbitrarily voiding contracts (see Contracts Clause), but I'm not sure that applies to civil marriage or if that clause has any power any more due to decades of jurisprudence weakening it.

    Prop 8, at the time, very well could've nullified those marriages if it had been written differently. That would've been an interesting court case, to be sure.

  • 55. Eric  |  August 15, 2014 at 1:25 pm

    Marriage is a contract that extends rights and obligations. Voiding a marriage would impact a number of property rights, especially in community property states, and could be argued to be a takings under the Fifth Amendment.

  • 56. Japrisot  |  August 15, 2014 at 3:12 pm

    A taking by the judicial branch would, I think, be quite a novel argument. Even if it could be made, it wouldn't restore the marriages, it would just require the gov't to pay the plaintiffs.

  • 57. DrPatrick1  |  August 16, 2014 at 8:34 am

    The doctrine of supremacy does not mean that the constitution is a higher law than statutes. It means that the constitution supersedes any conflicting statutes. When there is no conflict, both laws would be equally valid. The law itself is not elevated by being a constitutional amendment. It is not more holy, more valid, more legal.

    I know you didn't state this, but others have, if the US Constitution forbids discrimination in marriage, it does not matter whether we invalidate a constitutional amendment (UT, VA, etc) or a statute (WY, PA, etc). The state amendments can preclude the invalidation under the state constitution (AR might possibly be an exception) but that does not affect the federal courts in any way. This is precisely why, after winning ME where we have, it is now the proper role of the federal court system, and not the state courts to settle this issue.

  • 58. ragefirewolf  |  August 16, 2014 at 8:54 am

    State courts can absolute adjudicate their own state's laws in terms of the US Constitution, as we have seen in Arkansas, Florida, and Colorado (I'm sure I'm missing one or two).

    Otherwise, yes, you put what I was trying to say into a much better form. Thank you, Doc.

  • 59. DrPatrick1  |  August 16, 2014 at 9:12 am

    They certainly can. I meant that it was federal law which now must settle the ME issue, and not state law. The amendments take the issue out of state law consideration in a way that a state statute would not. However, with respect to federal law, it does not matter at all whether it is a state constitutional amendment or a state statute.

  • 60. montezuma58  |  August 15, 2014 at 2:50 pm

    The courts could not undo the marriages in OR or PA. Without anyone with standing appealing those are practically settled cases. Higher courts could not go back and retroactively nullify the marriages there any more than they could in Maryland, Maine, Minnesota, or Rhode Island.

    What theoretically could happen is the Supreme Court could rule the bans are constitutional. That would allow PA and OR to enact new bans. But undoing current marriages in those states wouldn't be on the table.

  • 61. Bruno71  |  August 15, 2014 at 2:55 pm

    I don't think those states (also CA) would have to enact new bans. New litigation could reinstate the old bans, claiming those cases were wrongly decided (yet allowed to stand due to no appeals). In other words, CA wouldn't have to pass prop 8 again, the old one could be reinstated if a court found that the injunction against enforcement was applied in error.

  • 62. montezuma58  |  August 15, 2014 at 3:29 pm

    It would take some action on the state's part, be it litigation or legislation , to restore the bans would have been a better way to put it. The higher court just couldn't order the state to revert out of the blue.

  • 63. Bruno71  |  August 15, 2014 at 3:37 pm

    Right, because those state bans wouldn't be in front of SCOTUS at the time. They can only deal with the case in front of them. Truth be told, an AG in one of those states (CA, OR, PA) could decide to immediately start enforcing the ban again once SCOTUS ruled, because she or he would have some leeway to interpret the law. Either way, it would probably be litigated.

  • 64. montezuma58  |  August 15, 2014 at 3:48 pm

    Considering CA has completed the appeals process already an official taking it up on his or her own would be very sketchy. Slightly less sketchy in PA or Oregon. Anyways that's just speciation at this point. Undoing any marriages in any of those states would be a radical move by the courts.

  • 65. Bruno71  |  August 15, 2014 at 6:43 pm

    Recall when AG Harris instructed marriages to begin as soon as the 9th's stay dissolved. Or when AG Brown instructed all hands on deck to stop issuing licenses the day after Election Day, 2008. If SCOTUS rules against us, it's not so much about what happened in Hollingsworth, but how the law should be interpreted at the (then) present time. Agreed on the undoing marriages scenario, that wouldn't happen. I doubt any of this happens anyway.

  • 66. brandall  |  August 15, 2014 at 12:51 pm

    Only as a point of historical fact and not as a statement of what can happen now, all the 2004 San Francisco licenses were invalidated. Sad since people were flying in with last minute and expensive plane tickets and high hopes.

  • 67. Bruno71  |  August 15, 2014 at 12:58 pm

    There's a much stronger case for the marriages currently being performed in California, Oregon, and Pennsylvania than those 2004 California marriages. I think it'd be very hard to argue that the licenses in those 3 states were invalidly obtained. The District Court rulings are final and binding. Just because SCOTUS could (hypothetically of course) eventually disagree with the reasoning behind those rulings won't alone invalidate the marriages. They'd have to be shown to have been invalidly obtained at the time they were issued, similarly to the ones in California in 2004. I have a hard time seeing that.

  • 68. Bruno71  |  August 15, 2014 at 1:08 pm

    This topic has me wondering. Has there ever been a situation remotely similar to this hypothetical one, where an unappealed lower court decision was later overruled by SCOTUS in a different case, causing a hectic situation "on the ground"? Or would this be a true first?

  • 69. Eric  |  August 15, 2014 at 1:27 pm

    If the case wasn't appealed, it can't be overturned. The law may change, but the case is over.

  • 70. Bruno71  |  August 15, 2014 at 1:31 pm

    It can't be overturned, but it can be, effectively at least though not directly, overruled. If next June (or whenever) SCOTUS rules in a way that goes against Judge Walker's findings (i.e. no national constitutional requirement for ME), then a case can be made that his unappealed findings were in error and California should revert to enforcing proposition 8. And you can bet that's exactly what will be attempted. So, to respond to your point, I'm not doubting that the case itself (Hollingsworth) is finito, but its injunction may be effectively nullified through another case (i.e. Kitchen or Bostic ).

  • 71. DrPatrick1  |  August 16, 2014 at 8:42 am

    True, possibly, but only if another law, or another case brings this about. And I don't know how anyone would have standing to bring about such a situation in CA for example. I agree, in the unlikely scenario where we lose in SCOTUS, it would mean the issue is then up to state control. However, the states (CA, OR, and PA) have already conceded their current laws and the issue is settled. A new SCOTUS ruling can set new precedent, which will make useless the existing precedent in these states, but it would not reverse these cases. In the end, I believe it would allow the state to again pass laws to discriminate, but I don't believe they could revive the currently dead laws.

  • 72. Japrisot  |  August 15, 2014 at 3:04 pm

    This is a common issue in criminal procedure. Although not completely analogous, consider Padilla v. Kentucky, which held that the right to effective assistance of counsel requires attorneys to advise clients as to the risk of deportation if they accept guilty pleas. The ruling effectively created a class of litigants who wanted to reopen their long-settled cases. The SCOTUS then had to make a separate determination, in Chaidez, as to whether the rule announced in Padilla would apply retroactively (they held it would not).

  • 73. DrPatrick1  |  August 16, 2014 at 8:47 am

    In these cases, the "defendants" clearly had standing to ask for their cases to be reopened.

    In the case of a state law being invalidated by a federal court ruling, having the issue be settled, and then having a different case erase the original legal argument underpinning the original case, I don't believe the state's AG would have standing to revive the previously invalidated law. The state would be free to rewrite the legislation, but I don't think it would have standing to revive the previously unappealed case

  • 74. Japrisot  |  August 16, 2014 at 5:47 pm

    I don't know how you arrived at standing. Habeas is a collateral attack on a criminal conviction. As I said above, the situations aren't a perfect fit. I was trying to give an example of how the court deals with retroactive application of constitutional pronouncements.

  • 75. RnL2008  |  August 15, 2014 at 3:25 pm

    The 4200 marriage performed in 2004 were NEVER legal to begin with. Gavin Newsome had NO authority to grant the issuing of marriage license to Same-Sex couples….that is the ONLY reason those marriages were invalidated.

    One can read the ruling in the Lockyer v. City and County of San Francisco!!!

  • 76. Ragavendran  |  August 15, 2014 at 3:49 pm

    I have a question which may be silly. Since CA's marriage ban (Prop 8) has been ruled unconstitutional, shouldn't it have always been unconstitutional since the ratification of the Fourteenth Amendment? (Scalia's question during the Prop 8 oral argument comes to mind.) Then, should any of those 4200 married couples now ask for their marriages to be reinstated and benefits (e.g., tax) awarded retroactively, shouldn't that be allowed? (Connecticut's Supreme Court recently upheld retroactive gay marriage rights.)

  • 77. brandall  |  August 15, 2014 at 3:55 pm

    You are really asking for trouble, aren't you? And you will drive Rose crazy on a perfectly nice Friday afternoon. Can't we go back to FGOTUS EX-POTUS?

  • 78. RnL2008  |  August 15, 2014 at 4:13 pm

    brandall……why would I get upset over Ragavendran's question? Tomorrow is my 6th wedding anniversary and it's going to be a great weekend…… one drives me crazy unless I allow them to……hugs<3

  • 79. brandall  |  August 15, 2014 at 4:20 pm

    I was jousting a bit with him, but you do have an opinion on those 2004 marriages. 6th years! Happy, happy anniversary. Kisses=3

  • 80. RnL2008  |  August 15, 2014 at 5:04 pm

    I got it……..thank you…..we are still amazed at our we discovered that we were going to need a marriage license!!!

  • 81. Bruno71  |  August 15, 2014 at 4:11 pm

    How many of those 4200 couples are a) still together b) still haven't remarried c) still want to be married to each other legally and d) willing to go to court to have their marriages recognized? It'd be really interesting if there were a few left that qualify.

  • 82. Ragavendran  |  August 15, 2014 at 4:22 pm

    I'd be surprised if there are zero couples that are still together. If someone had an insane amount of money to gain (like Windsor, for example) then it might be well worth the legal battle for retroactive rights, even if they married legally in the past year or in the 2008 window.

  • 83. Bruno71  |  August 15, 2014 at 4:26 pm

    As we saw in Connecticut, a couple wouldn't have had to have an official marriage ceremony in order to sue retroactively. I also would be surprised if none of the couples remained together, but I would be surprised if many of the couples met all 4 qualifications I laid out above.

  • 84. ctdawg  |  August 16, 2014 at 2:25 am

    We didn't get married in California, but we did get married in Oregon in 2004. Although Multnomah County (where Portland is located) granted our license, the state of Oregon refused to file the license. The good people of Oregon subsequently banned gay marriage and then the Oregon Supreme Court declared our marriages null and void. We've since gotten married (again) in Washington State, which seems pretty safe. But I've often wondered if our marriage from 2004 could someday be considered valid.

  • 85. RnL2008  |  August 15, 2014 at 5:05 pm

    Again, the 4200 couples who were wed in San Fran between February 2004 and May of 2004, were NEVER legally married in the first place as Newsome NEVER had the authority to bypass Prop 22!!!

  • 86. brandall  |  August 15, 2014 at 7:25 pm

    We ferried 6 couples from the airport to SF City Hall. We've stayed in touch with all of them. 1 couple broke up, the other 5 married either in Canada, another state or in the 2008 CA window. We were CA DP's and my spouse worked for the City. They specifically told SF employees's who were DP's not to marry since it would make a mess of our benefits.

  • 87. RnL2008  |  August 15, 2014 at 4:12 pm

    Interesting that you should ask this question……'s my take on it…..seeing as the CSSC ruled Prop 22 was UNCONSTITUTIONAL in their re Marriage ruling in May 2008…….and seeing as the same EXACT 14 words used in Prop 22 and found to be unconstitutional were used in Prop 8……why WASN'T Prop 8 ruled invalid or UNCONSTITUTIONAL before it EVER made it on the ballot? I mean it should have NEVER been allowed because the wording was already deemed unconstitutional, right?

    I believe most of the 4200 couples married legally in 2008…….but I'm not sure!

  • 88. Ragavendran  |  August 15, 2014 at 4:30 pm

    Rose, my question was with respect to the 4200 couples who married in 2008, and whose marriages were nullified soon after. This was well before Prop 22 was ruled unconstitutional. But your observation is valid, and the reason is the following. Prop 22 was ruled unconstitutional by the CA Supreme Court as violative of the CA constitution. Prop 8 was a constitutional amendment to get around that ruling. And the CA Supreme Court did rule that Prop 8 was properly passed by the voters and should be thought of as a narrow exception to the equal protection clause of the CA Constitution instead of a contradiction to it. Of course, we know better now.

  • 89. RnL2008  |  August 15, 2014 at 5:02 pm

    You appear to be mixing up to entirely different groups.

    There was 4200 couples roughly married in San Fran when Mayor Newsome had his clerks issue marriage licenses. Those marriages were later to be determined invalid by SCOTUS in the Lockyer vs San Fran in 2004.

    In may of 2008, the CSSC ruled in the re Marriage case that Prop 22 was UNCONSTITUTIONAL and 30 days later, the right to marry for Gays and Lesbians took place. Specifically on June 16th, 2008 at precisely 5:01 PDST, the first couple was married in San Fran by Mayor Newsome. That couple had been together for 55 years and their names were Phyllis Lyons and Del Martin. Martin passed in August of 2008.

    18,000 Same-Sex couples married between June 16th, 2008 through November 4th, 2008 right up until like 11:30 pm PST. My wife and I married in August of 2008. Our marriage has ALWAYS been legal, valid and recognized here in California regardless of what happen with Prop 8.

  • 90. jjcpelayojr  |  August 15, 2014 at 5:10 pm

    Speaking as someone married on October 4, 2008, Rose is correct;).

  • 91. RnL2008  |  August 15, 2014 at 5:14 pm

    Your anniversary is coming up soon…..Congratulations:-)

  • 92. brandall  |  August 15, 2014 at 5:15 pm

    I believe Lockyer was decided by the CSSC and not SCOTUS. Did I miss a piece of the history? The rest is right because I was part of it! – 9/6/2008

  • 93. RnL2008  |  August 16, 2014 at 4:47 am

    Your anniversary is also coming up soon…….are you folks planning anything special?

    Our anniversary is today…….and my wife and I have been looking at our wedding photos….we have been extremely blessed!!!

  • 94. brandall  |  August 16, 2014 at 7:31 am

    We will be in NYC! I also spend a lot of time doing genealogy. We will be having dinner at a restaurant that is the exact same building in Brooklyn (near the East River) where my GG Grandfather owned and ran a butcher shop in 1880. Lots of family coming in for this one.

  • 95. Ragavendran  |  August 15, 2014 at 7:13 pm

    Oops, typo. I meant to say, "Rose, my question was with respect to the 4200 couples who married in 2004, and whose marriages were nullified soon after." I was wondering that if gay marriage bans were ruled unconstitutional (whether Prop 22 or Prop 8), then they were always unconstitutional, so the 2004 marriages should now be reinstated if someone requests that, and all benefits given retroactively. Because, it seems silly to say that it was constitutional until the day the court said it was unconstitutional.

  • 96. RnL2008  |  August 15, 2014 at 7:18 pm

    It's possible…….I would hope that those couples were among some of the first to marry in June of 2008.

    Seeing as I'm NOT a lawyer or legal Scholar…..I guess if any one of those couples opted to fight now, they might win reinstatement. I personally didn't like the way that whole situation was handled!

  • 97. jjcpelayojr  |  August 15, 2014 at 5:13 pm

    "…..seeing as the CSSC ruled Prop 22 was UNCONSTITUTIONAL in their re Marriage ruling in May 2008…….and seeing as the same EXACT 14 words used in Prop 22 and found to be unconstitutional were used in Prop 8……why WASN'T Prop 8 ruled invalid or UNCONSTITUTIONAL before it EVER made it on the ballot?"

    Hey Rose,
    My take on this is that the CSSC has to pass their judgments based on the current reading of the state constitution at that time, which led them to invalidate Prop 22. However, Prop 8 was a voter-led initiative to amend the state constitution itself. To me, it seems like the voter-led initiative essentially bound the hands of the California State Supreme Court since the rulebook they were abiding by had its rules changed.

    Sad as it sounds, I can see why the opposition played it the way they did.

  • 98. RnL2008  |  August 15, 2014 at 5:17 pm

    Interesting view point…….personally, I thought that the CSSC just got pissed off at both the Governor and AG for NOT defending Prop 8 and they DIDN'T want the initiative process to be easily voided, because essentially that was the case when no one had standing to defend it.

    Frankly, fundamental rights should have NEVER been allowed to be voted on in the first place.

  • 99. DrPatrick1  |  August 16, 2014 at 8:51 am

    Just as I don't believe CA, OR and PA can revive their cases based on a potential pro discrimination ruling by SCOTUS, I don't believe those marriages can be revived. If the Lockyer ruling hadn't happened, I suppose the ruling could possibly come out differently today. However, the issue was already decided as to the validity of those marriages, and this cannot be reversed now

  • 100. brandall  |  August 15, 2014 at 3:51 pm

    Tracing this back up this long thread….Your comment, "once a marriage license has been filed legally….it would be hard to nullify it."

    The county (SF) clerk (not Newsome) legally filed the licenses at that time. Lockyer: "the county recorder thereafter registered marriage certificates submitted on behalf of same-sex couples who had received licenses from the city and had participated in marriage ceremonies. The declaration of the county clerk, filed in this court on March 5, 2004, indicates that as of that date, the clerk had issued more than approximately 4,000 marriage licenses to same-sex couples."

    I was merely pointing out a fact as it related to your statement. I am sure the UT AG believes he can nullify the licenses and they were "NEVER legal to begin with." With SCOTUS at the helm, anything can happen. Of course, we both don't want this.

  • 101. RnL2008  |  August 15, 2014 at 4:15 pm

    I think that the AG of Utah WISHES he could make those legal marriages go away, but he CAN'T and I think he knows that!!!

  • 102. Jen_in_MI  |  August 15, 2014 at 5:44 pm

    This topic always makes my stomach churn. I was married during Michigan's marriage window, and our teatard governor refuses to recognize that fact. Everything Reyes does to undercut the legality of the marriages performed in Utah during their marriage window has implications for people similarly situated in other states. Limbo is a pretty crappy place from which to celebrate a wedding. 🙁

  • 103. RnL2008  |  August 16, 2014 at 4:50 am

    Hold fast Jen……..your marriage is going to get full recognition in my opinion from both your state and federal government……it's just going to take a little more time!

  • 104. DrPatrick1  |  August 16, 2014 at 8:53 am


  • 105. sfbob  |  August 15, 2014 at 1:11 pm

    The situation would be quite different.

    Strauss vs Horton struck down Prop 22, which was a statutory ban on marriage equality. Between the time the ruling was issued and the time Prop 8 was passed, marriage equality was the law in California; Prop 8 was in effect a brand new ban and could not possibly have applied retroactively. Ken Starr should have had is legal competence questioned for even suggesting otherwise. (Okay; he ought to have his legal competence questioned for any number of reasons but that argument really took the cake.)

    If the Supreme Court were to somehow rule that the district courts and the 4th and 10th Circuits somehow erred in overturning states' marriage equality bans, the situation would be different. It would be as though the lower court rulings had never issued. Of course I think this is unlikely. It would be even more improbable if the Supreme Court were to refuse to stay the ruling in Bostic and then ultimately uphold the ban but were that to happen it could be argued–and the state might feel itself compelled to argue despite the Governor's and the Attorney General's support for us–that any same-sex marriages that took place in the interim were never valid to begin with. For the life of me I can't see such a thing happening but with this court you never know. But that STILL would not rise to the level of "irreparable harm" claimed in McQuigg's request.

    If the Supreme Court does not stay the Bostic ruling that will strongly telegraph that they either don't intend to grant cert on the case or that they will accept the case and then rule in our favor. A stay on the other hand would signal little to nothing about how the court might rule or even whether they intended to grant cert. I suppose that unfortunately means it's more likely a stay will be issued than not.

    One of the drawbacks to our legal system is that the Supreme Court can essentially do or say anything it wishes to and its decisions, no matter how irrational or flawed, are the last word on the matter. So they can most certainly issue a stay even if the rules for doing so counsel against it.

  • 106. Bruno71  |  August 15, 2014 at 1:24 pm

    So what happens in Utah, where for 2 weeks marriage licenses were being issued to same-sex couples, across the entire state uniformly? Even though the lower court rulings (both from Shelby and the 10th Circuit) would be reversed, they still had force at that time. Although these marriages are more in doubt than the ones in OR, PA, & CA, I think there's a strong argument to be made that they were valid. The state was issuing licenses and recognizing these marriages at the time, how does one argue against that?

  • 107. brandall  |  August 15, 2014 at 1:32 pm

    I'm with you on this 100%. Herbert is about procedural issues not being followed by the AG which allowed ME to occur. SCOTUS should have just denied the appeal and not stayed it. But, they've locked themselves in now and made Herbert appear to be a 2nd case about ME tying back to Kitchen.

  • 108. sfbob  |  August 15, 2014 at 2:02 pm

    Based on the law as it existed at the time, those marriages were legally contracted.

    The point I was trying to make is that none of the current situations is comparable to what happened California between Strauss vs Horton and the passage of Prop 8. There were during that period absolutely no legal impediments to marriage equality in California.

    Utah created its own problems by issuing licenses and recording the marriages. Of course if they hadn't done so they might have been held in contempt. But that sort of dilemma I suppose is what happens when your counsel is incompetent.

  • 109. Sagesse  |  August 15, 2014 at 3:57 pm

    What I keep coming back to is 'why do you need a stay'. No stay = decision is in effect. Stay = decision is not in effect. If the judge's ruling is in effect unless and until a stay is issued, surely those marriages are legal at the time they were performed and cannot be reversed. Even if the decision were ultimately overturned. The 'legal limbo' language is a rhetorical trick used by opponents to suggest those marriages might be invalidated, when any good lawyer knows that won't happen. The situation in Colorado is different, where the clerk issued licences without a decision invalidating Colorado's marriage ban… that circumstance is iffy. At the time of Strauss v Horton, there were legal analysts saying the 18,000 marriages were never really at risk.

  • 110. Bruno71  |  August 15, 2014 at 4:16 pm

    The Colorado marriages are at risk because the clerk took it upon herself to interpret the law, against the wishes of the AG. They're more similar to the 2004 CA marriages than the 2014 UT marriages in terms of legality. However, if SCOTUS rules in our favor, those CO marriages could well be deemed valid, since her interpretation of federal law based on the 10th Circuit ruling would be proven correct.

    I was in one of the 18k CA marriages and I never really doubted that my marriage would remain valid. The legal situations were very different between 2004 and 2008.

  • 111. jm64tx  |  August 16, 2014 at 5:41 am

    "If the judge's ruling is in effect unless and until a stay is issued, surely those marriages are legal at the time they were performed and cannot be reversed. Even if the decision were ultimately overturned."

    If the appellate court issues a reversal, then the lower court judgment is of no effect ab initio. So put simply, a reversal by the appellate court would mean the marriages dont exist, as they were not permitted in the first instance.

  • 112. Bruno71  |  August 16, 2014 at 2:33 pm

    It would mean whatever orders the court made at the time cease to be in effect, and are considered to have been invalid. That doesn't automatically invalidate the marriage licenses obtained under the auspices of the initial ruling, which was considered valid at the time, and obtained legally through the correct governmental sources. It would be VERY difficult for any court to justify the invalidation of marriage licenses that were legally and correctly obtained, but it is possible.

  • 113. jm64tx  |  August 16, 2014 at 4:58 pm

    A ruling which is reversed by the appellate court was never valid to begin with… so any marriage licenses issued are invalid also.

    Thats where your mistake is … the original ruling was not considered "valid at the time".

    Ill give you an example … say that you are ordered by a court to pay a sum of money to a person … you appeal the ruling and it is reversed on appeal. Thus, you never have to pay that person money.

  • 114. StraightDave  |  August 15, 2014 at 2:12 pm

    @sfbob: without disputing any of your other points, I believe it was in Re Marriages Cases that struck down Prop 22. Strauss v Horton was the post-Prop 8 attempt to invalidate Prop 8.

  • 115. sfbob  |  August 15, 2014 at 2:22 pm

    Ugh. You're right Dave and I apologize. Post first, think later and then I have to swallow my words.

  • 116. RnL2008  |  August 15, 2014 at 5:19 pm

    Hey, it happens to us all…….wish at times one could have a reverse button…….lol!!!

  • 117. RnL2008  |  August 15, 2014 at 3:16 pm

    Hi Bob,
    The re Marriage case (May 15th, 2008) struck down Prop 22 by CSSC. Strauss vs Horton was the revision vs Proper Amendment challenge to Prop 8 after the passage of Prop 8 in May of 2009.

  • 118. DrPatrick1  |  August 16, 2014 at 9:00 am

    If the interim marriages cannot be invalidated, an argument can be made that the state is suffering irreparable harm by being forced to recognize the interim marriages if they ultimately win their appeal at SCOTUS. This supports a stay being issued.

    If the interim marriages (UT, OK, VA, etc) and not PA, OR, CA etc, can ultimately be voided as being improperly issued if the states win their appeal, then at worst a stay harms the couples constitutional rights, and at best the stay changes nothing that the ultimate ruling would not address, so no stay should be issued.

  • 119. Sagesse  |  August 16, 2014 at 9:21 am

    The new aspect of this debate is Windsor. A couple can be married anywhere that permits it and be recognized for federal purposes, so more and more couples are getting married out-of-state. The question becomes… would it be any more offensive, if a ban were upheld, if a couple married locally in a brief window of opportunity, or married out-of-state? How is one kind of married-not-recognized couple any 'worse' than the other?

    If the harm is that the ban is not being upheld for a period of time… the ban doesn't stop any married couple from living in the state, regardless of how they got that way.

  • 120. DrPatrick1  |  August 16, 2014 at 11:31 am

    The issue is not whether valid marriages can be invalidated, it is whether the marriages were ever valid in the first place

  • 121. Lynn_E  |  August 15, 2014 at 11:49 am

    "Irreparable harm" has become the legal equivalent to "gathering storm."

  • 122. dlejrmex  |  August 15, 2014 at 11:56 am

    Did you ever see the NOM "gathering storm" ad? Is that what you were referring to? That was such a weird and weirdly done ad it has stuck with me.

  • 123. brandall  |  August 15, 2014 at 12:11 pm

    I've reread Section III again. It requires both Irreparable Harm and Balance of Equities Weighs Decisively be addressed.

    Harm – They are solely relying on Kitchen with no additions of their own and, of course, nothing to counter anything introduced in the 4AC's decision. It less than one page. It's another repeat of the beginning arguments saying "everyone else has issued stays, so you need to put a stay on this one."

    Balance of Equities – They dive into Harm (this is so badly put together, poor flow) citing Evans. They premise the problems to businesses and government entities for marriages of doubtful validity. At least they correctly remembered this is a 4AC appeal and cite denying the stay would bring in the other 4AC state districts. This section is 2.5 pages. For the Plaintiff's, "the only interim harm is a modest delay in obtaining the Commonwealth's official sanction of their relationship." It is less than one paragraph and less than a half-page. They are going to get slaughtered in the Plaintiff's motion on this one.

    A good brief should properly argue for your points as well as counter the known or expected arguments of your opposition. This does not come close to that. I can only think ADF's counsel believes this is "in the bag" and is good enough to obtain the stay.

  • 124. StraightDave  |  August 15, 2014 at 2:21 pm

    I note they didn't quote Judge Crabb in WI saying that she thought SCOTUS totally botched the Kitchen stay, and she wouldn't normally grant one but felt her hands were tied.

  • 125. KahuBill  |  August 15, 2014 at 3:14 pm

    The reply to the Request for Stay is a golden opportunity to lay out the reasons why the balance of equities tips strongly in the Plaintiffs' favor – lack of legal protections, tax penalties, Social Security benefit issues, health insurance coverage, hospital visitation rights, ability to make funeral arrangements,legal protections and rights for minor children,etc. You don't have to use the word "animus" to so forcefully demonstrate the legal and social disadvantages to the Plaintiffs by maintaining the "status quo" that any person of conscience would ask, "Why on earth is the State doing these things to these law-abiding, tax-paying citizens?"

    As far as "Irreparable harm" goes, what could be more irreparable than death? As a priest, I can't tell you how many deaths I have attended where the surviving partner of many years who cared for the other through long illnesses suddenly becomes the legal "nobody/mere friend"that he or she always was under the law.

  • 126. Ragavendran  |  August 15, 2014 at 4:18 pm

    As compelling as these reasons are, the point is, these arguments were already made to the Supreme Court during the response to Utah's stay application. And they didn't seem to care one bit then. The hope is that the changed circumstances (now that two appeals courts have ruled the bans unconstitutional and that this is an application to stay an appeals court mandate, not a district court order) make enough of a difference for them to deny a stay.

  • 127. Rick55845  |  August 15, 2014 at 3:36 pm

    I think the stay is "in the bag", so it doesn't really matter what either side says in their briefs. But of course, it will be fun to read them.

  • 128. robbyinflorida  |  August 15, 2014 at 3:51 pm

    You are right. They will get slammed by Olson and Boies.

  • 129. Sagesse  |  August 15, 2014 at 4:15 pm

    I can understand to logic behind a stay, even though irreparable harm to the state is not it. There would be 'massive, aggravating, confusing bureaucratic grief' if a marriage equality decision were ultimately overturned. The state, the couples involved, employers, healthcare and pension administrators etc. would have a huge,messy time changing all their processes BACK. Even if all the marriages performed remained valid, as I believe they would.

    Consider the following example. A court declares the use of red light cameras unconstitutional. No stay, municipalities just take down their cameras. If the decision is overturned, they just put the cameras back up… no big deal. Permitting marriages, with all the attendant financial and non-financial implications, is a much more pervasive social change. Not difficult to implement, but a major headache to undo.

  • 130. brandall  |  August 15, 2014 at 4:37 pm

    I think you know I do not understand nor agree with either the stay logic or being a legal haruspex to understand why the lack of true 'irreparable harm" allows the stays to continue. The AG's are fighting for legality is at the expense of justice. And justice will prevail…after being stayed stalled.

  • 131. DrPatrick1  |  August 16, 2014 at 9:06 am

    None of this addresses the 4 criteria the courts are supposed to use when addressing stay requests. It certainly appears as if SCOTUS rewrote the book to say gay=stay, as by the traditional review of this, no stay should have been granted

  • 132. brandall  |  August 16, 2014 at 2:57 pm

    Thursday's BURNS (CO) Defendent's Appeal to the 10th:

    "..with same-sex marriage litigation, federal courts have largely skipped a methodical assessment of those four factors in favor of entering a stay due to the “unsettled” nature of the constitutional questions regarding same-sex marriage and the “confusion, potential inequity, and high costs” that would likely result if the decision granting injunctive relief were reversed on appeal."

    They cite:

    "Tanco v. Haslam, No. 14-5297, slip op. at 2 (6th Cir. Apr. 25, 2014) (entering stay without assessment of four factors) (quoting Henry v. Hines, No. 1:14-cv-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014))."

    You would think or hope Tanco and Henry are previous non-ME cases establishing a precedent for skipping a methodical assessment. Nope, they are both ME cases. It's now one big closed loop for the gay cases.

    This is probably the only statement Suther's ever written that I actually agree with because (like it or not), it is factually true.

  • 133. Margo Schulter  |  August 15, 2014 at 10:59 am

    One guess might be that since a request for a stay by a party with Article III standing after a circuit court decision in favor of marriage equality is a new situation, Chief Justice Roberts might be inclined to refer the application to the entire Court.

    Justice Alito in denying a stay in the Pennsylvania case may have, as someone has already suggested, been acting on the close analogy of the NOM application in Oregon, where the lack of Article III standing was a ready basis for denying the application.

  • 134. Margo Schulter  |  August 15, 2014 at 11:11 am

    brandall, the final portion of the ADF argument distinguishing the Oregon and Pennsylvania cases seemed to me their strongest point, pretty much dotting their i’s and crossing their t’s, since the Article III standing seems fairly obvious (becoming yet more so, if it were possible, with the expected filing by Clerk Rainey also, with the support of Attorney General Herring).

    What I might add is that one of their weakest points was arguing that the Fourth Circuit misread Glucksberg, see p. 14, n. 2, where it becomes clear that ADF’s quarrel is with the majority opinion in Glucksberg itself — and also with the warning against not defining established fundamental rights too narrowly in Lawrence.

    In other words, under Glucksberg, an asserted “right to assisted suicide” is new; but “the fundamental right of marriage” is not, with the issue in Bostic its availability to same-sex couples (as also to interracial couples, people who owe child support, and prisoners). ADF could ask SCOTUS to revisit Glucksberg, but it’s curious that it is criticizing the Fourth Circuit for correctly following the majority in that case.

  • 135. Japrisot  |  August 15, 2014 at 3:21 pm

    Since some folks above have been discussing Prop 8 (seems like forever ago), I thought I'd bring this delightful bit of reading back to the fore. It is a filing submitted during the trial phase written by somebody named Michael J. McDermott, a California lawyer who went to McGeorge.

    This individual is, well, crazy. But that certainly makes for some entertaining quasi-legal reading. Enjoy!

  • 136. Waxr  |  August 16, 2014 at 4:48 pm

    At least I learned a new word: "Misandry", which he defines as, "Hatred of Men, Masculinity and Normal Heterosexuality."

    He states that at the McGeorge School of Law he "was the founder and president of the campus Men’s Caucus." I can see he also has a problem with women' rights.

    Thank you for submitting the link, I got a good laugh from it.

  • 137. Sagesse  |  August 15, 2014 at 4:27 pm

    Welcome to the 21st century.

    Man sues doctor for listing homosexuality as ‘chronic condition’ in his medical records [Washington Post]

    "The first time Matthew Moore, 46, saw Elaine Jones, it was for a routine checkup in April 2013. Tests revealed that he was vitamin B-12 deficient, had high blood pressure and high cholesterol.

    "Apparently he also suffered from “homosexual behavior.” It was listed as a “chronic condition” on his medical records.

    "Now Moore, of Los Angeles, is suing his doctor and health-care network for intentional infliction of emotional distress and libel."

  • 138. brandall  |  August 15, 2014 at 5:05 pm

    Thank you for posting this. Since I was/will be (on a break right now) buried in Electronic HealthCare Record Systems (EHRS aka EMR) for years, everything in this article is technically possible. While not Mr. Moore's fault, you cannot and are not permitted to permanently delete the historical chain of records in an EHRS system. You never want to allow anyone to "cleanse the records," especially in a wrongful death lawsuit.

    The ICD-9 codes were developed to categorize patient symptoms for both billing and treatment plan workflows. They are very broad, out of date and there is a tremendous fight going on right now to introduce the next updated set of code known as ICD-10. The transition is painful and was just delayed again.

    Mr. Moore has a good case. And, if I may, everyone should always obtain a copy of all of their EHRS data. In the future, exchanges will be established where you can get access to them electronically and on demand.

  • 139. Lynn_E  |  August 16, 2014 at 3:05 pm

    Chronic conditions are coded when they are under treatment or their condition may have an effect on the patient's treatment for other issues. At least, that is the direction given by the CDC. Are all of this doctor's patients coded as chronically heterosexual, or chronically alive?

  • 140. hopalongcassidy  |  August 16, 2014 at 11:55 am

    I'm a little ambivalent about this…how is it -not- a chronic condition? Aren't we constantly claiming our status as gay a permanent trait? That is after all the definition of chronic. I don't think it necessarily denotes a 'disease' (although that may have been the -intent- at the time but that is not clear from what little information I'm seeing)…I personally don't consider it offensive any more than my chronic right-handedness or my green eyes. I'm pretty sure my mother is chronically heterosexual, that doesn't mean I think it's anything bad, just different from me. Shrug.

  • 141. Bruno71  |  August 16, 2014 at 2:42 pm

    Primarily it's offensive for categorizing homosexuality as a "condition," chronic or not. For most people, in this context, "condition" is almost synonymous with "disease" or "affliction." Even if it's chronic, it connotes something unnatural and in need of medical attention. What this doctor did was absolutely unethical and offensive.

  • 142. brandall  |  August 16, 2014 at 3:23 pm

    Well put Bruno. And if I may add….chronic right-handedness is fine. But, when I was in elementary school, I had chronic left-handedness. It was viewed as bad. My parent's had to go to the principal and tell them to stop forcing me to write right-handed.

    I have zero problems with my medical record saying I am gay. I believe that is important since I could be subject to a disease more prevalent in our community. All my Dr's know I am married to a man and we've been together over 20 years. Again, important for them to know my family situation for mental health reasons or long term care.

    I pulled the ICD-9 (est. 1979) 302.0 coding for that Mr. Moore had in his medical record. I would also be suing if I found this in my not-so-private-as-we-think medical record:

    302 Sexual deviations and disorders

    Abnormal sexual inclinations or behavior which are part of a referral problem. The limits and features of normal sexual inclination and behavior have not been stated absolutely in different societies and cultures but are broadly such as serve approved social and biological purposes. The sexual activity of affected persons is directed primarily either towards people not of the opposite sex, or towards sexual acts not associated with coitus normally, or towards coitus performed under abnormal circumstances. If the anomalous behavior becomes manifest only during psychosis or other mental illness the condition should be classified under the major illness. It is
    common for more than one anomaly to occur together in the same individual; in that case the predominant deviation is classified. It is preferable not to include in this category individuals who perform deviant sexual acts when normal sexual outlets are not available to them.

    302.0 Homosexuality

    Exclusive or predominant sexual attraction for persons of the same sex with or without physical relationship. Code homosexuality here whether or not it is considered as a mental disorder.
    Excludes: homosexual paedophilia (302.2)

    Here are the newer ICD10 codes that are being delayed across the U.S. EHRS systems:
    Block F60-F69 contains a number of new disorders of adult behaviour such as pathological gambling, fire-setting, and stealing, as well as the more traditional disorders of personality. Disorders of sexual preference are clearly differentiated from disorders of gender identity, and homosexuality in itself is no longer included as a category.

  • 143. hopalongcassidy  |  August 16, 2014 at 3:35 pm

    Okay, you can look at it that way. I personally have zero problem being labeled a chronic homosexual person (using the word properly as an adjective) because that is what I am and have been for 64 years. When the doctor made that evaluation was it out of line with the then current standards? If it was not, then he should be censured but I'm not comfortable with prosecuting (or persecuting) people for actions taken far in the past that were in accord with contemporary mores which they easily might have not realized were prejudicial at the time.
    I'm not a big fan of delving into the past to find fault with someone who might not have had a way to know better but that's just me.

  • 144. brandall  |  August 16, 2014 at 3:50 pm

    We are in agreement. Mistakes happen in ICD coding all the time. But, this guy was coded in 2013, asked why and asked for a correction to a supervisor. It was not done and left on his record for some unstated amount of time. So, his circumstances are current.

  • 145. brandall  |  August 16, 2014 at 3:54 pm

    Side bar (or should I say side-saddle) with hopalongcassidy: I believe you did not see the comment to you a few weeks back that I made on one of those days we had collapsed threads. I am quite curious how you came to pick your login name. I grew up in Hollywood in a showbiz family and am very familiar with the HC franchise and William Boyd's brilliant moves that made him very rich. I hope you'll share this…thanks.

  • 146. hopalongcassidy  |  August 16, 2014 at 4:10 pm

    Ah, I didn't realize it was recent. Sorry to have missed that. No, I missed your comment…I had been channel surfing about the time I signed up and happened on one that was showing those old Hopalong shows, which I watched as a kid in the 1950s. Boyd was kind of a hero to me as was Clayton Moore…I was a very urban kid who spent many summers in rural Wyoming living with actual cowboys. I learned to saddle and ride horses and had my own guns from age 8 which probably is why I continue to fervently support the right to keep and bear arms. I also encountered a lot of real cowboys who were (although I did not know at the time) very gay. I eventually figured it out and now I can look back and realize there was a lot more realism in "Brokeback Mountain" than anyone in those days would admit to. 🙂

  • 147. brandall  |  August 16, 2014 at 4:21 pm

    And I remember Clayton Moore also along with Sky King! Thank you for telling us about Wyoming. As you know, there is somewhat of a core of EoT'ers to which you also belong to. It is neat to know a bit of the backgrounds about each other! It really helps to understand different positions (right to bear arms) that we have and be more respectful knowing life is an accumulation of different experiences. Have a great weekend!

  • 148. Sagesse  |  August 15, 2014 at 4:36 pm

    58 LGBT And Civil Rights Organizations Join Together In Support Of Michael Brown's Family [New Civil Rights Movement]

    The community takes everyone's civil rights seriously.

  • 149. brandall  |  August 15, 2014 at 5:36 pm

    Gov Rick Perry was just Indicted for "Obstruction of Justice and Abuse of Power"..besides really not liking the guy…why would we care? Because I'm betting the AG will again go to the 5AC and ask for yet another ME stay because his caseload just increased again.….

  • 150. brandall  |  August 15, 2014 at 6:09 pm

    AZ – "Gay couple asks federal judge to order Arizona to recognize their marriage before 1 dies"

    One of the Plaintiff's is terminally ill. There are 2 cases in play in AZ and I can't tell which one these Plaintiff's are part of. I hope the Judge rules quickly for this couple. Very sad.….

  • 151. Margo Schulter  |  August 15, 2014 at 10:48 pm

    In California, any attempt to go “back to Prop. 8” would be complicated also by the enacted this year of Senate Bill 1306, which defines marriage in gender-neutral terms, and has already been signed by Governor Brown, going into effect at the beginning of 2015.

  • 152. ragefirewolf  |  August 16, 2014 at 8:01 am

    Gods. Towleroad is becoming more and more useless for ME news. I almost posted an update on the stay request being referred to the whole Court by Roberts, but he didn't actually request that – it was just a terribly written post by Kyler Geoffrey that made it seem like Roberts was doing that when he actually meant that Roberts was just looking for a response to the request, which you all knew already.

    >.< I am not amused

  • 153. Zack12  |  August 16, 2014 at 9:19 am

    I quit going to Towleroad a long time ago.
    The one troll that we had to deal with here has free reign there, along with so many other rude and cruel bigots.

  • 154. ragefirewolf  |  August 16, 2014 at 9:23 am

    I sincerely check it out of sheer boredom now.

  • 155. brandall  |  August 16, 2014 at 2:21 pm

    Ditto. I saw that incorrect Roberts post. And they updated their mobile version with an ad strip at the bottom. Now, on my iPhone, I can't get to the <> and other needed functions, it opens to the ad.

    If I may suggest, have you tried Once a day, they post "This Just In" (left side of page) which is a really good summary of LGBT issues including anything on ME. I've noticed they find articles that few other sites pick up.

  • 156. Bruno71  |  August 16, 2014 at 2:36 pm

    The comments section is 100% useless now. But for the most part the blog posts are as reliable as other sites. JMG and even EOT make mistakes once in awhile. I'd also say that after JMG and maybe Bilerico, it's one of the quickest to post fresh news, especially on weekends.

  • 157. brandall  |  August 17, 2014 at 6:53 pm

    All non-breeding pairs at risk under anti-gay reasoning

    A 62 year-old straight married woman who is a former editor of the Philadelphia Inquirer rips Judge Niemeyer's dissent decision…plus she highlights the differences between marriages of older men versus older women

  • 158. bayareajohn  |  August 17, 2014 at 7:37 pm

    How transparent it is when they say it's not about ICK, it's about biology… then when confronted with biology, their answer is essentially, "yeah, but old or sterile straight folks aren't ICKY."

  • 159. Equality On TrialSupreme &hellip  |  August 18, 2014 at 1:53 pm

    […] will decide this week whether to halt same-sex marriage in Virginia. Couples will be able to marry on Thursday unless the Court stays the mandate, or formal judgment, in the Fourth Circuit case, Bostic v. […]

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