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Same-sex couples in Oklahoma, Virginia agree that Supreme Court should review marriage cases

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The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
Same-sex couples in Oklahoma and Virginia have filed briefs in the Supreme Court asking the Justices to hear challenges to their states’ marriage bans. In Utah, the couples who won in the Tenth Circuit Court of Appeals have also said that they will support Supreme Court review.

The Washington Post has the news:

The winning plaintiffs who successfully challenged bans on same-sex marriage in Virginia, Oklahoma and Utah all are asking the Supreme Court to take up the issue this term, saying their victories are incomplete unless same-sex couples everywhere are treated the same.

It is somewhat unusual for the winning side to ask the Supreme Court to review a decision. But the justices have prevented marriages from taking place while they contemplate taking up the issue, and the challengers say the uncertainty needs to end.

And, not surprisingly, each would like to be the case that the court accepts in order to decide a landmark constitutional issue.

In Virginia, the state’s attorney general filed a petition for review in the Supreme Court, although he agrees that the state’s marriage ban is unconstitutional. Norfolk Circuit Court Clerk George Schaefer filed his own petition, while Prince William County Circuit Court Clerk Michele McQuigg has promised to file hers before the 90-day time period has passed.

Lambda Legal and the ACLU, representing the plaintiffs in the class-action challenge to Virginia’s ban, Harris v. Rainey, responded to Attorney General Herring’s petition yesterday, agreeing that all nine Justices should hear the case. Today the Bostic plaintiffs, via AFER and its attorneys David Boies and Ted Olson, filed their response, also agreeing that the case should be taken up.

On August 6, Tulsa County Court Clerk Sally Howe Smith filed a petition in the Supreme Court asking the Justices to hear the challenge to Oklahoma’s same-sex marriage ban. As we noted earlier today, Stanford’s Supreme Court Litigation Clinic is joining the plaintiffs’ team. Today, they responded to Smith’s petition, agreeing that the Justices should hear the case.

The Utah response is expected soon, and as we’ve previously reported, they’ve said they will support review. SCOTUSBlog has suggested that the late-filed petition in the Virginia case “may complicate” the Supreme Court’s chances of quickly deciding whether to hear a marriage case. The Court’s first conference is September 29 and at least some of the cases will now be ready for those conferences, meaning the Court could look at them to decide whether they should be taken up for full review in the October ’14 term. But if they want to wait on all the petitions to be ready, they may delay the process and hear them all at once weeks later.

Thanks to Equality Case Files for these filings


  • 1. Eric  |  August 27, 2014 at 5:28 pm

    With Indiana and Wisconsin arguing for tradition yesterday, I found it most amusing when I came across this quote in a bit of unrelated reading. I had to ask myself, where would Wisconsin and Indiana be if Chris had followed tradition and gone East?

    "Your Highness, as Catholic Christians and princes who love and promote the holy Christian faith, and are enemies of the doctrine of Muhammad, and of all idolatry and heresy, determined to send me, Christopher Columbus, to the above-mentioned countries of India, to see the said princes, people, and territories, and to learn their disposition and the proper method of converting them to our holy faith; and furthermore directed that I should not process by the land to the east, as is customary, but by a Westerly route, in which direction we have hitherto no certain evidence that anyone has gone." – Christopher Columbus, 1492

  • 2. robbyinflorida  |  August 28, 2014 at 1:41 am

    What is the last day for Mc Quigg to file?

  • 3. ebohlman  |  August 28, 2014 at 4:45 am

    October 26 or thereabouts.

  • 4. Jen_in_MI  |  August 28, 2014 at 2:13 pm

    I fully expect her to run out the clock – delay tactics are all these haters have left!

  • 5. DoctorHeimlich  |  August 28, 2014 at 9:32 am

    The Oklahoma reply brief is an interesting one. It devotes a good chunk to arguing that SCOTUS should grant multiple marriage equality cases (as was done with Brown v. Board of Education, and other cases they cite).

    This may be a partially self-serving request. I think you could have reasonable debate at this point about whether Utah or Virginia is the more likely to be granted SCOTUS review, but I think most people would agree that in a horse race against those two, Oklahoma would be coming in third.

    But even if that's the case, the Oklahoma reply brief makes a really quite compelling argument for multiple cases. First, it points out that the differences in facts between the cases present many approaches to the issue. Virginia has officials joining with plaintiffs against the ban. Utah has always opposed the ban, but had a short period in which marriages were performed. Oklahoma has a more prominent animus component (one specifically questioned in Judge Holmes' concurrence). This variety of situations illuminates the issue more fully.

    Secondly, the brief argues that this issue needs to be resolved, as soon as possible, and that we simply shouldn't risk any possibility of procedural snafus short circuiting a ruling on the underlying issue — issues like the Virginia AG's refusal to defend the ban, or the question of who is the proper state official to be sued.

    I for one find this recommendation to grant multiple cases very convincing. I hope SCOTUS will think so to.

  • 6. davepCA  |  August 28, 2014 at 10:02 am

    That is interesting. Anybody know if SCOTUS has done this with previous issues, and how often?

  • 7. Ragavendran  |  August 28, 2014 at 10:28 am

    Brown v. Board of Education is an excellent example. Five appeals (KS, SC, VA, DE, DC) were consolidated in that instance, and ultimately, the Court ended up reversing four out of the five appeals (which were appealed directly from federal district courts) in favor of nondiscrimination, and affirmed the one appeal out of the DE Supreme Court. This is also an example where the Supreme Court went against a "string of lower court rulings on the subject", if one could call four negative rulings at that time "a string". But more recently, even though multiple appeals were presented to the court in the DOMA issue, the court only picked one to deal with.

    As an aside, Brown is also my favorite example of a Supreme Court soap opera due to an associate justice using rehearing as a stall tactic to convince everyone for a unanimous opinion, for the release of which a justice who had just suffered a heart attack managed to be present on the bench anyway. (The primary dissenter was the chief justice at that time, who died between the rehearings. The new chief was a big supporter and quickly convinced everyone else to join a single, unanimous opinion.) To read the exciting drama the unfolded at that time, see this section of the Wikipedia article.

  • 8. DoctorHeimlich  |  August 28, 2014 at 10:42 am

    There are others cited in the Oklahoma reply brief. The famous Miranda case was also a consolidation (of three cases). And in the Supreme Court term just completed a few months ago, there were two different examples of similar/consolidated cases: Hobby Lobby (which included another case with another much-less known plaintiff: Conestoga), and the Riley and Wurie cases which both had to do with the limits of search and seizure when it comes to cell phones. (One was a "flip phone" case, the other a smart phone case.)

  • 9. Japrisot  |  August 28, 2014 at 11:17 am

    Also the dog-sniff Fourth Am search & seizure cases that came out last term or the term before were paired..

  • 10. JayJonson  |  August 28, 2014 at 10:34 am

    I agree that multiple cases would be helpful if only as a hedge against allowing standing issues to serve as an excuse to dodge the question.

    I also like this paragraph from the response: "Oklahoma, for its part, has remained unambiguously and steadfastly opposed to same-sex marriage, and no such marriages have ever been performed in the State. Pet. App. 55a, 187a. Furthermore, Oklahoma’s condemnation of same-sex couples is even more sweeping than Virginia’s. Oklahoma is the only one of the three states before this Court that specifically makes it a crime – and a crime at the constitutional level at that – to issue a same-sex marriage license. See Okla. Const. art. 2, § 35(C). The Oklahoma Governor feels so strongly on the subject that she recently refused, even after the Windsor decision, to allow the Oklahoma National Guard to process benefits for Guard members’ same-sex spouses on state property – an action that forced some individuals to travel considerable distances to federal military installations to obtain their federally guaranteed dispensations."

  • 11. LK2013  |  August 28, 2014 at 11:37 am

    Yeah, I forgot about that National Guard fiasco. Horrible.

    OK, get real, hatred and discrimination are definitely not OK.

  • 12. Elihu_Bystander  |  August 29, 2014 at 4:28 am

    "Oklahoma, for its part, has remained unambiguously and steadfastly opposed to same-sex marriage, and no such marriages have ever been performed in the State."

    The exception being Native American Tribal ones.

  • 13. Equality On TrialEquality&hellip  |  August 28, 2014 at 3:25 pm

    […] As we covered yesterday, same-sex couples in Oklahoma and Virginia want the Supreme Court to take up challenge to their states’ marriage […]

  • 14. F_Young  |  August 28, 2014 at 5:36 pm

    Here's some well argued speculatation on which case SCOTUS will select:

  • 15. Waxr  |  August 28, 2014 at 5:57 pm

    Try the last alternative: NONE OF THE ABOVE. If SCOTUS denies cert. the bans will be lifted, and the other states will know where the Court stands, and fall in line before the year is out..

  • 16. Ragavendran  |  August 28, 2014 at 6:25 pm

    I recall that Ginsburg said in a recent interview that she thinks (paraphrasing) the Court will take up a case if it is properly before it and decide by 2016, if not earlier. But I agree that no cert for this upcoming term is a possibility. However, if they do that, then that would mean, in this important, hard-to-reverse issue of marriage, that the Court agrees that state bans are unconstitutional. (Because how can the Court then take up a ME case later on when there is a circuit split and reverse ME in several states? Imagine the mess that that would create!) So I think it is more likely than not that they will take up a case this upcoming term.

  • 17. Waxr  |  August 28, 2014 at 11:07 pm

    As you say, if the Court takes up a case, it may not be decided until 2016. However, as long as there is no circuit split, the Court can deny cert, and the Circuit Court's decision will stand. It takes six votes to deny cert., therefore the denyal of cert. will be interpreted by other courts as a clear indication of how SCOTUS leans. Getting those six votes is the hard part, but it appears that ME already have 5.

  • 18. Ragavendran  |  August 28, 2014 at 11:38 pm

    To clarify, I agree with you that denying cert waiting for a circuit split is a possibility, and it would clearly signal that the Supreme Court is okay with striking down state bans on same-sex marriage and perhaps is the quicker way to attain ME without Supreme Court intervention.

    My comment is that it is unlikely especially based on Ginsburg's comment, that at least she is going to vote to grant cert in a case and she thinks there are at least three more votes in there to grant cert to a case. As a Justice herself, she is one of the best court-observers and I'm deferring to her a lot here 🙂

  • 19. Waxr  |  August 29, 2014 at 8:24 am

    Why would Ginsburg vote to grant cert if she is in agreement with the lower court's decision? There is a chance that one of the conservative justices may look at the overwhelming court decisions in favor of ME and realize that resistance is futile. In which case, there would be 6 votes against cert. and the lower court decisions stands.

  • 20. TDGrove  |  August 29, 2014 at 9:04 am

    Because she realizes that at some point the Court has to address it and at the moment she believes the side she favors has the votes. At their age, any of the Justices could drop at any moment. As entertaining as it has been following the whole thing, it has reached the point of being a huge waste of resources. The SCOTUS just needs to finish the job, instead of having ME become the Lawyer Full Employment Act of writing brief after brief.

    If the lower court decision stands, that only solves it for that Circuit. Having two versions of marriage law in the states, roughly divided in half by population, is a silly state of affairs and only spawns even more lawsuits for recognition of marriages from other states.

  • 21. Ragavendran  |  August 29, 2014 at 10:02 am

    First, because she herself hinted so in her interview (but she didn't give any reasons why). Also, for many persuasive reasons put forth by the Plaintiffs in their responses to Utah, Oklahoma, and Virginia's cert petitions asking the Court to take up the case, even though they've won below (some of which have been articulated nicely by TDGrove above).

  • 22. Ragavendran  |  August 28, 2014 at 7:32 pm

    Like the article notes, it is not uncommon for the Court to grant cert in more than one case when the underlying issue is of great importance. Few could argue that this issue is not so. I want the Court to grant cert to all three cases and consolidate them for briefing and/or argument. Utah and Virginia are more likely because the Court directly stepped in with stays. Oklahoma is admittedly less likely because it is out of the same circuit as Utah, but they make excellent points in their cert petitions and response why the Court should take them too. In addition, unlike the author of the article, I expect some sympathy for the plaintiffs in that case who have been battling it out in courts for 10 years. (The indignation of the years-old Sevcik parties when the Ninth Circuit set oral argument in just months-old Latta and left them in the lurch comes to mind. Not an exact comparison – I know, but similar.)

  • 23. RnL2008  |  August 30, 2014 at 10:57 am

    I've been reading all of your comments and feel that SCOTUS will take the best case presented to them and give us a ruling sometime in June of 2015.

    So much money, time and resources have been wasted in some degree to fighting an issue that WILL happen and the delay tactics by the anti-gay folks just shows that they truly have NOTHING…….here's an article that I found interesting:

    This woman wins a new trial and had her conviction tossed just because the Prosecutor made an issue of her POSSIBLY being a Lesbian……when will they EVER learn!!!

  • 24. FredDorner  |  August 30, 2014 at 2:55 pm

    Truly shameful that a prosecutor would use a vile and defamatory slur that was debunked almost 60 years ago in California courts.

  • 25. RnL2008  |  August 31, 2014 at 3:02 am

    I would agree with ya……it's just as pathetic as these AG's using the procreation argument against Gays and Lesbians gaining their right to marry!!!

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