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Equality news round-up: More reactions to the Seventh Circuit arguments in two marriage equality cases, and other news

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– More reactions to this weeks arguments at the Seventh Circuit Court of Appeals in marriage cases from Indiana and Wisconsin: Professor Dale Carpenter weighs in with his thoughts.

– Two more challenges to North Carolina’s same-sex marriage ban have been put on hold pending Supreme Court action on the petitions for review in the Virginia marriage case.

USA Today looks at the marriage cases, discussing which ones the Supreme Court may review.

BusinessWeek looks at federal agencies that are not yet recognizing same-sex marriages, and some challenges to their policies.

– Lyle Denniston at SCOTUSBlog writes about yesterday’s news that the same-sex couples challenging Utah’s marriage ban have filed a brief agreeing that the Supreme Court should review the case.

Thanks to Equality Case Files for these filings


  • 1. F_Young  |  August 29, 2014 at 8:30 am

    Colombia grants gay couples adoption rights. Court grants limited adoption rights to gay and lesbian couples, setting a precedent for similar cases in the country

  • 2. F_Young  |  August 29, 2014 at 8:45 am

    Some Federal Agencies Still Don't Recognize Same-Sex Marriages

  • 3. sfbob  |  August 29, 2014 at 9:28 am

    I strongly suspect that the reason some statutes relating to the provision of benefits to surviving spouses are based on place of residence is that they were crafted at a time when there were still anti-miscegenation laws and Congress didn't want to step on the toes of the regressive states.

  • 4. JayJonson  |  August 29, 2014 at 10:06 am

    Carpenter's analysis referenced above is very good. He concludes, "Gay-marriage opponents have been backed into a vanishingly small empirical, logical, and legal corner in which they have no room to challenge the basic premises of gay equality, no ability to distinguish morally between homosexuality and heterosexuality and, in order to justify continuing to fence out gay couples, they must defend an understanding of the purpose of marriage that is so “artificially narrow” (Judge Hamilton’s phrase) and anemic it would be unrecognizable to the vast majority of Americans living in this or any other century."

    I agree with him that Posner is likely to emphasize animus in striking down the bans on equal protection grounds. His line of questioning was remarkably similar to Kennedy's decision in Windsor that said DOMA was enacted only to disadvantage gay couples.

  • 5. Ragavendran  |  August 29, 2014 at 10:11 am

    Yes, this passage from his analysis struck me as significant: "Although he didn’t mention it by name, Posner hinted at an animus holding. Why had the state of Indiana re-enacted its ban, he wondered, and then added mischievously: had the previous definition expired? The state banned same-sex marriage even though it couldn’t come up with a single plausible reason for the ban. “What’s that about?” Posner asked. There is a long history of “savage” discrimination against gay people, he observed. The ban on gay marriage, Posner concluded, is “based on hate, isn’t it?” Indeed, Posner has previously written that animus is the only explanation left when the state can offer no other real defense."

  • 6. Jen_in_MI  |  August 29, 2014 at 11:02 am

    I believe that Posner will write this opinion and it will be a thing of beauty that will be a joy to read and quote forever.

  • 7. Zack12  |  August 29, 2014 at 11:44 am

    I love how some people are still trying to spin Posner as a possible no vote.
    Yes sometimes questions are NOT an indication of how someone will vote but let's be real here.
    In the two previous circuits, while Judges Carlos Lucero of the 10th and Roger Gregory of the 4th didn't bring down the hammer like Posner did, there was no doubt from the questions and responses they gave to the bigots that they were going to vote to uphold the rulings striking down the bans.
    Likewise, Paul Kelly Jr of the 10th and Paul Niemeyer of the 4th left no doubt where they stood on the bans from the questions and responses they gave.
    Bottom line, the bigots have to put the questions asked mean nothing reply because they have to but for the rest of us, let's be honest.
    Posner tore the state apart and those are NOT the actions of someone who is going to uphold the bans.

  • 8. SeattleRobin  |  August 29, 2014 at 12:10 pm

    Agreed. Going by oral argument only, someone can rightfully say Sutton didn't tip his hand with his questions. He had probing questions for both sides. He seemed dismissive of and sympathetic to positions taken by both parties. But Posner clearly wasn't buying any of the post-hoc rationales, and his only probing of plaintiffs was in regards to the fundamental right argument, not anything to do with equal protection.

  • 9. Ragavendran  |  August 29, 2014 at 12:17 pm

    With regard to Sutton, I'm working on rehearing the audio again with full focus only on his statements and sparring, and I'll post my own analysis of some finer points that other reports may have missed. For starters, Carole Stanyar (Michigan Plaintiffs' attorney) excellently countered Sutton tooth and nail during their sparring and it was telling to me when I reheard that segment that there was not a single time Sutton could respond when Stanyar threw at him direct quotes from Supreme Court precedent concerning constitutional law. Instead he repeatedly kept dragging her back to the democratic process. In response when she threw the infamous Barnette quote at him, he balked and clarified that his questions about the democratic process were "assuming you win here or at the Supreme Court." Listening again to his tone when he balked there, I think it is significant. I will work on it more this weekend and post it here next week.

  • 10. Zack12  |  August 29, 2014 at 12:25 pm

    Sutton could surprise us like Jerome Holmes did but I'm not holding my breath.
    There is a lot of history with him and none of it good.
    He is a member of the Federalist Society that thinks states have the right to do what they wish and if a minority group wants to right a wrong, they need to go through the legislature or the ballot box to do it.
    Cook is further to the right then he is and if not for age, would likely have been considered a Supreme Court nominee in the future like Sutton will be.

  • 11. SeattleRobin  |  August 29, 2014 at 7:29 pm

    I was just using Sutton as an example of what a judge sounds like when they are seriously probing both sides, and how you can't accurately guess how he's going to decide based on his choice of questions. (Most predictions about Sutton going against us are based on what is known about him in general, just like how you did here, not on oral arguments alone.)

    To then jump to Posner and act like his questioning was anything close to similar is absurd. Posner's questions left no doubt where he stands, both in terms of the plaintiff arguments and in terms of the defense lack of defense.

  • 12. Ragavendran  |  August 29, 2014 at 12:10 pm

    I thought I'd check in with the docket in the Arkansas Supreme Court case and here are a couple of updates.

    (1) I think it was reported that the Plaintiffs are asking some of the Justices of the Supreme Court to recuse themselves because they are up for reelection, and that the recent threats of impeaching the lower court judge Piazza would cause an unfair discomfort in being unbiased in deciding the case. That motion is here. Not surprisingly, both the State Defendants and the Separate White et al. County Clerk Defendants oppose this motion. Their responses are here and here, respectively. (The second response merely states that it adopts the first word for word.)

    (2) I guess this news was also reported recently. The State Defendants filed a motion to stay the case pending final disposition of the cert petition in Kitchen by the US Supreme Court. The Plaintiffs' response in opposition is here.

    (3) The opening brief by the State Defendant-Appellants, which was originally due September 8, is now due September 15. A seven-day extension was granted yesterday.

    I guess we can expect orders in the coming weeks on the motion to recuse and the motion to stay.

  • 13. Jen_in_MI  |  August 29, 2014 at 6:50 pm

    Here's where I show my ignorance: is the right to a speedy trial limited only to criminal cases? These delay tactics (wait for cert!) seem like desperate ploys to undermine pro-ME momentum.

  • 14. SeattleRobin  |  August 29, 2014 at 7:39 pm

    At this point, with at least three cases already going to SCOTUS on appeal, I think it's reasonable for other states to say let's just sit on it and see how things turn out. By doing so they're saving tax dollars that could be better spent elsewhere. I think it's fiscally responsible. Note that I'm only saying that because of where we are now, with the cert petitions and stays. A few months ago I would have said it's irresponsible to attempt delays.

    And yeah, I think right to a speedy trial only applies to a citizen who has been arraigned on a charge against them. With the exception of Michigan, these cases don't even have trials.

  • 15. Beauty2Fashion&hellip  |  August 31, 2014 at 3:01 pm

    […] Equality news round-up: More reactions to the Seventh Circuit arguments in two … More reactions to this weeks arguments at the Seventh Circuit Court of Appeals in marriage cases from Indiana and Wisconsin: Professor Dale Carpenter weighs in with his thoughts. – Two more challenges to North Carolina's same-sex marriage ban have … Read more on Equality on Trial (registration) […]

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