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READ IT HERE: Plaintiffs’ brief in Fifth Circuit marriage equality case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Texas state sealThe plaintiffs challenging Texas’ same-sex marriage ban have filed their response brief in the Fifth Circuit Court of Appeals.

The opening brief can be read here.

The Fifth Circuit, a conservative court of appeals, has not scheduled arguments in the case yet.

The Louisiana case has also been appealed to that court.

You can read the filing here, thanks to Equality Case Files:

14-50196 # 61733 Plaintiffs' Answer Brief by Equality Case Files

65 Comments

  • 1. debater7474  |  September 9, 2014 at 12:03 pm

    Yeah good luck with that. Texas's attorneys could file a picture of a potato as a brief and the fifth circuit would still rule in their favor.

  • 2. ragefirewolf  |  September 9, 2014 at 12:47 pm

    Is the Fifth Circuit really that bad? That's pretty bad.

  • 3. DACiowan  |  September 9, 2014 at 12:53 pm

    Unfortunately Judge Feldman in Louisiana is a typical judge for the Good Ole Boy Circuit, not an exception. We lucked out with the pro-marriage Texas ruling, but will probably need the SCOTUS ruling to see it upheld and honored.

  • 4. sfbob  |  September 9, 2014 at 1:00 pm

    With any luck we will not require an appeal to SCOTUS of an unfavorable ruling by the Fifth Circuit. It's entirely probable that they will grant cert to one or more of the cased from the 4th, 7th or 10th Circuits and all the others will be held pending the resolution of whichever case (or cases) the Court actually hears.

  • 5. Ragavendran  |  September 9, 2014 at 1:13 pm

    I think the Louisiana plaintiffs are poised to petition for cert before judgment (to bypass the Fifth Circuit) if and as soon as SCOTUS grants cert in one or more marriage cases that are currently before them. If they do so, that would present SCOTUS with even more choices, indeed, the unique choice of an appeal from an adverse ruling instead of a favorable ruling.

  • 6. DACiowan  |  September 9, 2014 at 2:05 pm

    Sorry, I wasn't quite clear enough; I was referring to a national SCOTUS ruling from the currently ready for cert cases overriding whatever stage the 5th Circuit is at by that point.

  • 7. Fortguy  |  September 9, 2014 at 1:57 pm

    How bad is the Fifth Circuit? Meet Judge Edith Jones.

  • 8. Mike_Baltimore  |  September 9, 2014 at 3:37 pm

    I was in a jury pool for a case a couple of decades ago. The judge told us the trial and jury deliberations would take NO MORE than 2 weeks.

    The reason? She had plane tickets for a trip to China. The tickets were non-refundable, and she let everyone know she was going on that trip.

    A couple of years later, she had been the subject of so many complaints, the Maryland Judicial Council (I think that is what it is called) kicked her out of the judgeship. My only comment was "What took them so long?"

  • 9. SeattleRobin  |  September 9, 2014 at 5:51 pm

    Thanks for the link Fortguy. It made me sick to read her comments. It's appalling that a judge harbors such racial prejudice. I did a search, but couldn't find any links to the results of the official review, but since she's still on the court I guess I have my general answer.

  • 10. Fortguy  |  September 9, 2014 at 7:55 pm

    Yes, she is still on the court. Her review is ongoing, however Charles Kuffner, the Houston-based politics blogger I linked above, has follow-up on her review here and here. In the last post, Kuffner expresses his well founded low expectations for the review.

  • 11. Zack12  |  September 9, 2014 at 8:55 pm

    The most disguisting part is how long she has been on the bench.
    Sad to say but the Republicans are smarter about getting their guys and gals on the bench at young ages so they can influence the courts and policy for decades to come.
    In Judge Jone's case she was only 35 when she was appointed to the 5th circuit in 1985.
    By contrast, until this year, many of Obama's nominees were between 47-60 years of age and in fact many of them can take senior status before he even leaves office, leaving their seats open for less desirable judges to get on there.

  • 12. ragefirewolf  |  September 9, 2014 at 6:30 pm

    Oh…lovely >.<

  • 13. RnL2008  |  September 9, 2014 at 1:27 pm

    Unless there is some miracle in the air, I think we are all expecting a ruling AGAINST us in the 5th and possibly the 6th…….SCOTUS will have to take one of these cases in my opinion, but I wouldn't expect a ruling from them until at least June of 2015 or possibly 2016…….ugh, the waiting is just hard, but harder for the couples involved in these lawsuits!

  • 14. MichaelGrabow  |  September 9, 2014 at 2:05 pm

    Call me foolish if you wish, but I do not expect that.

  • 15. RnL2008  |  September 9, 2014 at 2:17 pm

    You're certainly NOT foolish, I just don't see those two circuits ruling in our favor….especially with the 6th after listening to the audio, but hell…..I've been wrong before and could be now.

  • 16. DACiowan  |  September 9, 2014 at 2:12 pm

    My gut feeling is that the 6th will hem and haw based on Judge Sutton's indecision and wait for SCOTUS to take a case and freeze the current appeals process, meaning we don't get to see a 6th Circuit decision.

    I'm pretty pessimistic on the 5th though and there the best case imo is that the 5th simply does not schedule arguments in time for a ruling to be issued before SCOTUS steps in. I'm assuming, of course, that SCOTUS grants cert to a case by late October.

  • 17. SeattleRobin  |  September 9, 2014 at 5:59 pm

    Yeah, since we're already into September and the fifth hasn't even scheduled oral arguments yet, I don't think they're going to be a player in the final game.

    Really hard to guess with Sutton and the sixth. If he was persuaded by Posner and decides to go our way, he might want to get an opinion out there before SCOTUS starts deciding which case(s) to take. If he's still dead set on his state's right stance, he's only got Feldman to look to. That would be enough to make anyone just want to sit on the whole thing and take the opportunity to not weigh in at all.

  • 18. JayJonson  |  September 9, 2014 at 1:40 pm

    At this point, I don't really expect a ruling against us in the Fifth Circuit. I believe the circuit will stall and hope that SCOTUS grants cert to a case (any case). They will then put the brakes on and wait for SCOTUS to rule. I think they would prefer to wait than to be overruled. If, however, they do rule, they will certainly rule against us.

    Once SCOTUS grants cert to a ME case, and that will likely happen by early December, every federal case will come to a halt.

  • 19. RnL2008  |  September 9, 2014 at 2:15 pm

    I see your point……and you may be right…….I wonder what really scares these Justices from doing the right thing?

  • 20. Rick55845  |  September 9, 2014 at 3:44 pm

    That's what I want to know Rose. I was born in Texas, raised in Louisiana, and I've lived all of my adult life in Texas. Most people I have ever met in either state, whether they approve of homosexuality or marriage equality or not, are still generally respectful of people who are different from themselves (even if they think they're sinners), and believe they should be treated equally under the law. One would think that judges from this area would be no different.

  • 21. RnL2008  |  September 9, 2014 at 3:58 pm

    I don't have an answer for ya Rick, but most folks that we come in contact with RARELY have anything negative to say to our faces……some even seem surprised when we mention it…….or like at the beginning, use to say, "Oh, you got married in that window of time" like it made it appeared like we did something wrong or illegal……but over the last 6 years, most just acknowledge it and move on.

    It's like we tell our parents who want to sign their girls up for Girl Scouts……we tell them up front who we are as Leaders and if they have an issue with it, then we are NOT the troop for them…….some tell us we don't need to do that, but at least if we put it out there….then we are usually NOT surprised when they move on to another troop…..and we are okay with that…..we have a great troop of girls and parents……and we have a great time:-)

  • 22. Zack12  |  September 9, 2014 at 2:32 pm

    Let's put it this way about the 5th, some of the judges on there would write a ruling that would make Feldman sound like a pride supporter by comparsion, the 5th truly is that bad.

  • 23. RnL2008  |  September 9, 2014 at 3:59 pm

    I've heard that about the 5th Circuit, though I find it hard to believe that they could make Feldman seem like a pride supporter……..ugh:(

  • 24. Margo Schulter  |  September 9, 2014 at 3:00 pm

    With the Sixth Circuit, there’s the question of how much influence Judge Sutton might give to the Seventh Circuit opinion by his mentor, Judge Posner.

  • 25. RQO  |  September 9, 2014 at 4:06 pm

    Zack12 always gets the politics right. I have this image stuck in my head that the 5th has jockey hitching post statuettes out front, still painted black. But at this point what group of federal judges – other than maybe Edith Jones – really wants to get in front of the public shouting state's rights, remember the Alamo, segregation forever, etc.? I take a wild guess and predict just plain old stalling by the 6th and the 5th, and probably the 8th and the 11th when we get there. Stalling seems to work for the 17 conservative state AG's led by CO's John Suthers."We know we're going to have to change, but don't make us say we like it".

    Rose, sadly I don't think these people are scared of doing the right thing. They don't know – and more damningly don't WANT to know, what the right thing is. They don't like us, and they just want us to be polite, shut up and go back in the closet, like it used to be.It is a problem of closed minds.

  • 26. Zack12  |  September 9, 2014 at 4:44 pm

    The judges of the far right Federalist Society certainly would.
    And Bush Jr made it a point to get as many of them on the bench as possible.
    As to your second point, you are dead on. If a judge doesn't like same sex couples, they will rule against us, simple as that.

  • 27. SeattleRobin  |  September 9, 2014 at 6:12 pm

    I don't agree with your last point. You're basically saying that there are no impartial judges. I think it's entirely possible for a judge who has personal issues regarding gay people to still come to the conclusion that we are being impermissibly discriminated against. For all we know it has already happened. It's no different than the many religious people out there who hold strong personal convictions on what is morally right, but who also wholeheartedly embrace the constitutional notion of the separation of church and state.

    It is possible for people to recognize unfairness even when they dislike the person or group who is being treated unfairly.

  • 28. RemC_in_Chicago  |  September 9, 2014 at 7:02 pm

    For the sake of argument, I wonder…I've read all the rulings. The judges who have ruled in our favor have spoken with compassion and empathy. Is it possible to have compassion and feel empathy for a group you dislike? Enough to take a stand for them? That's why the ruling from Louisiana stood out so markedly. From the specifics of his ruling, it was clear that this was someone who did very much dislike us. No amount of logic, reasoning, fairness or common sense was going to allow him to rule any way but how he did. I'm not arguing, I'm just musing…

  • 29. seannynj  |  September 9, 2014 at 8:09 pm

    I seem to recall the federal district judge in OK showing lots of bias against us in his opinion but then still ruling in our favor because it was the right thing to do constitutionally.

  • 30. Zack12  |  September 9, 2014 at 8:50 pm

    He's the exception and not the rule IMO.
    I look at the dissents of the judges who have ruled against us since 08 and none of them really bother to hide their animus towards us.

  • 31. JayJonson  |  September 10, 2014 at 5:11 pm

    I agree with Zack. While some of the district judges have done the right thing because they understand how they should interpret Windsor rather than out of any special empathy they have for us, the judges who have ruled against us, especially those in the minority on the appellate rulings, certainly do lack empathy for us. They find it quite logical and reasonable that a state would discriminate against us in the name of "family values" or "protecting marriage." Feldman simply cribbed Niemeyer et al.

    As a corollary, Scalia, Thomas, Alito, and Roberts will never rule in our favor. Never. For them, this is not a matter of equal rights and fairness. It is pure ideology and paying political debts. They know who put them on the Court and why.

  • 32. Zack12  |  September 10, 2014 at 7:58 pm

    Not to mention plain bigotry.

  • 33. RnL2008  |  September 9, 2014 at 5:38 pm

    I'm still confused over what this supposed "CLOSET" thing is…….I have NEVER been in the closet, just DIDN'T want to admit to myself who I was because of some family issue I had……once I got past it, I was and have been pretty A Okay with who I am and who I am married to….in fact, I feel pretty lucky to have found my soul mate and exercised my right to marry her:-)

    Everyone should have that SAME right!!!

  • 34. Mike_Baltimore  |  September 9, 2014 at 4:23 pm

    Something to ponder:
    What If the Supreme Court Doesn't Take a Marriage Case? Let's face it, all (or almost all) of the current cases have warts or problems of one sort or another, or have too many points (or not enough) for SCOTUS to select only one case. Either SCOTUS selects two or more cases to cover all the bases, or it selects none.

    The Advocate tries to answer that question: http://www.advocate.com/politics/marriage-equalit

    It doesn't answer the question of travel to another state (such as South Florida to Maryland or DC, or probably eventually to Virginia or either of the Carolinas) to get married, but it does answer some questions.

    (Baltimore to Atlanta is at least 9 hours by vehicle, and that takes you only about 1/2 of the way to South Florida. DC is somewhat closer, and parts of MD are closer but not as easily accessible.)

  • 35. RnL2008  |  September 9, 2014 at 5:41 pm

    I see your point, and maybe SCOTUS won't take a case, but I don't see how they can ignore one especially after Justice Ginsburg's comments………and secondly, why should Gays and Lesbians have to go to another state to marry just to have their marriage NOT be valid when they return home? That's again another discriminatory action….why doesn't SCOTUS simply say that the Full Faith and Credit clause is in place to make sure that denial of recognition is NOT possible!!!

  • 36. Mike_Baltimore  |  September 9, 2014 at 7:03 pm

    "That's again another discriminatory action. . . ."

    And there is a Federal judge in Louisiana, and a state judge in Tennessee, who would agree with you, except their opinion would be that forcing ME on people who don't want ME would be discriminatory.

    SCOTUS does not work by fiat until a case is brought before them. To date, no case has been properly been before SCOTUS with the question of whether states MUST recognize legal marriage performed in another state. There are multiple cases asking this question now requesting SCOTUS that the court grant cert, thus bringing the case before SCOTUS. Until then, the Constitution prevents SCOTUS from making such a determination.

  • 37. FredDorner  |  September 10, 2014 at 9:10 am

    "To date, no case has been properly been before SCOTUS with the question of whether states MUST recognize legal marriage performed in another state."

    I'm not sure that's how the question would be phrased but rather whether a state can refuse recognition on a certain basis. After all, Loving v Virginia was about an out of state marriage.

  • 38. Eric  |  September 9, 2014 at 6:34 pm

    Honestly, I would welcome SCOTUS denying cert on all these anti-gay appeals.

    All they need to say is, "we've already ruled fifteen times over the past 150-years that marriage is a fundamental right. It still is, go figure."

  • 39. DACiowan  |  September 9, 2014 at 8:02 pm

    Especially since denying cert would institute marriage equality right away for a state like Virginia, rather than potentially nine long months from now for a June decision.

  • 40. JayJonson  |  September 10, 2014 at 7:21 am

    Yes, but it would leave people in states like Louisiana, Mississippi, Texas, et al. at the mercy of a deeply biased judicial system. It is the responsibility of SCOTUS to grant cert to a marriage equality case and issue an unambiguous opinion extending the right to marriage to all otherwise qualified gay and lesbian couples in the country.

  • 41. Eric  |  September 10, 2014 at 8:18 am

    Those states' marriage laws are not currently before the court. A denial of cert would send just as loud a signal to the undecided circuits in much less time. If the circuits get it wrong, then SCOTUS can act.

    Your use of extending a right implies that the court is granting something. Rights are inherent they aren't extended by anyone. The court may recognize a right, but the right existed before the recognition.

  • 42. JayJonson  |  September 10, 2014 at 8:32 am

    A denial of cert would not send a signal to a judge or circuit that does not want to hear it.

    You are technically correct that rights are inherent, but that is cold comfort to people who want to marry in Mississippi sooner rather than later and to people who married in Massachusetts but live in Texas. Rights are meaningless until people are allowed to exercise them. I am sure that the black people who died waiting to have equal rights as citizens in this country will be glad to know that they actually had equal rights all along.

  • 43. RobW303  |  September 10, 2014 at 4:53 pm

    Only until cases in those circuits reached the Supreme Court. Should justice be denied to the people who have won their suits while waiting for a bad ruling from elsewhere??

  • 44. DaveM_OH  |  September 10, 2014 at 7:13 am

    Disagree with your premise, Mike –
    Kitchen has no procedural "warts" and covers both in-state solemnization and out-of-state recognition.

    SCOTUS will take Kitchen. Whether they choose to take another case at the same time, dunno – but I'd lay 3:2 for only Kitchen and the rest held pending their opinion.

    See, e.g.: http://www.usatoday.com/story/news/nation/2014/08

  • 45. JayJonson  |  September 10, 2014 at 7:33 am

    According to Lyle Denniston at Scotus Blog, SCOTUS could make a decision quite soon as to whether they will consider one of the marriage equality cases at the first session on September 29. See http://www.scotusblog.com/2014/09/new-marriage-ap

  • 46. DaveM_OH  |  September 10, 2014 at 7:48 am

    That is correct – as the Docket for the cases will read "DISTRIBUTED for Conference of (XXDATEXX)" if they are considering them at that Conference.

    Docket links:
    Kitchen
    Bishop
    Bostic (McQuigg)
    Bostic (Schaefer)
    Bostic (Rainey)
    Bogan
    Wolf

  • 47. ebohlman  |  September 10, 2014 at 8:27 am

    Nitpick: the IN case should be listed as "Baskin" if you're going by respondent rather than petitioner (as you are in all the other cases)..

  • 48. DaveM_OH  |  September 10, 2014 at 8:30 am

    If you're going to pick that nit, then you should pick the rest! 🙂
    Kitchen is Herbert, Bishop is Smith…

    For consistency, I'm using the district-court level plaintiffs to refer to the cases.

    ETA: Never mind, I failed at consistency! Replace Bogan with Baskin please.

  • 49. Mike_Baltimore  |  September 10, 2014 at 10:29 am

    It was NOT, I repeat NOT, my premise, but the premise of 'The Advocate'. If fact, the title of the article in 'The Advocate' was exactly what I wrote for people to ponder. (And ponder means to consider; it is not a command for people to think that SCOTUS (in this instance) will not take any cases.)

    And does the Kitchen case directly include the question of adoption? IIRC, it does not. The cases out of Wisconsin and Indiana concern adoption (Indiana allows two party adoption, Wisconsin only allows two party adoption when the parties are married), along with ME legally performed in and out of state (but unless SCOTUS combines them [IMO, not likely, and until that happens, they are still separate cases]; that is two cases). Many people are interested in what SCOTUS says about adoption. If Kitchen does not address adoption, then the question of adoption probably will not be considered, or at least will not be included in the decision. If the Kitchen case does not address adoption, then that is an indication that SCOTUS will have to pick another case along with Kitchen to get to the question of adoption, and an indication that the Kitchen case contains too few areas of concern, thus another case must be chosen to get to the 'missing' area(s) of concern.

    SCOTUS may well choose Kitchen, but that would be a strong indication (IMO) that it will pick at least one more case to address areas not in the Kitchen case.

  • 50. MichaelGrabow  |  September 10, 2014 at 5:54 am

    Judge Cohen vacated his ruling in Broward County.
    http://joemygod.blogspot.com/2014/09/florida-brow
    http://www.miamiherald.com/2014/09/09/4338279/bro

  • 51. ragefirewolf  |  September 10, 2014 at 6:08 am

    He did so rightfully, albeit it is unfortunate. State law concerning case procedure wasn't followed by the plaintiff's attorney and the ruling could have been overturned on technical grounds. It's better he caught it himself than having it caught by the appellate court instead. At least there's a chance at a rehearing for this case.

  • 52. MichaelGrabow  |  September 10, 2014 at 6:19 am

    I wonder if that is why Pam Bondi did not appeal the ruling.

  • 53. brandall  |  September 10, 2014 at 7:32 am

    I agree he needs to insure his ruling is not overturned. The original case was supposed to be limited to a divorce from an out-of-state marriage, but the judge went further by striking down the ban.

    So, last week, the Broward County Clerk issued a statement saying he was reviewing the ruling to determine if he could issue SSM licenses today or Thursday. We don't know if Bondi saw this chess move coming, but she has now. The AG has the right to intervene in any cases linked to state law as she has done in some of the other FL cases. She would be very late to the party trying to intervene now, but I would not be surprised if she tries.

    Bondi is taking a lot of heat for the tone of her filings. FL Equality is not letting her off the hot seat. ME must be showing up in her polling for re-election. Last week, she announced to the press:

    1) "I have lots of gay friends"…./rolling eyes
    2) "I will now read everything produced by my office"…./PalmToForehead

  • 54. RQO  |  September 10, 2014 at 9:33 am

    Brandall's got me laughing for the first time since watching Monte Stewart at the 9th. Naw, come on, really!??, – she actually said "I have lots of gay friends"? If there is a video clip I want it. Will file with "I am not a crook" and "There are no Russian troops in Ukraine".

  • 55. RobW303  |  September 10, 2014 at 4:58 pm

    But, but, but her office claimed they were following the marriage cases closely, and even I, a mere bumpkin thousands of miles away, knew what was happening in Broward. (Okay, it was a procedural flub, and the decision was rightly vacated. Just jabbing with the two ends of a stick.)

  • 56. JayJonson  |  September 10, 2014 at 7:29 am

    Off-topic, but Maura Healey who argued on behalf of Massachusetts in challenging DOMA won the Democratic nomination for Attorney General last night. If elected, she will become the first out state Attorney General in the US. http://www.bostonglobe.com/metro/2014/09/09/maura

  • 57. hopalongcassidy  |  September 10, 2014 at 8:35 am

    Yikes. That truckload of Amici for the defendants looks like a list of hate groups. Sheesh.

  • 58. FredDorner  |  September 10, 2014 at 9:21 am

    No surprise that one of those hate groups is the LDS church. They seem to want to go down with the boat they steered into the iceberg.

  • 59. hopalongcassidy  |  September 10, 2014 at 10:36 am

    I was curious about one in particular that seemed a little 'odd', just a name, David Robinson. Some checking reveals he's a "christian" lawyer who specializes in showing corporations how to get away with discrimination … of various flavors. Seems this guy is an equal opportunity bigot.

  • 60. sfbob  |  September 10, 2014 at 11:10 am

    Does anyone else find it ironic, I wonder, that members of the LDS church are "warning" us that marriage equality will lead to polygamy?

  • 61. FredDorner  |  September 10, 2014 at 12:43 pm

    I wonder if the LDS church was so vehemently opposed to mixed-race marriage because they (correctly) understood it to be a slippery-slope to same-sex marriage?

    Probably more likely they were just effing white supremacists.

  • 62. DACiowan  |  September 10, 2014 at 10:37 am

    One of the more bewildering ones is the Comparative Legal Scholars one, where the argument is literally "Most countries don't recognize equal marriage, and are firmly opposed, so we should follow suit."

    The Colage one is uplifting though; it's a coalition of LGBT rights groups. You can read the briefs via the SCOTUSBlog page at http://www.scotusblog.com/case-files/cases/herber

  • 63. StraightDave  |  September 10, 2014 at 12:15 pm

    That same Comparative Legal Scholars brief also included this gem of a quote from The European Court of Human Rights:

    holding that “differences based on sexual orientation require particularly serious reasons by way of justification… "

    Sounds like heightened scrutiny to me. So why isn't SCOTUS being encouraged to follow that suit?

  • 64. FredDorner  |  September 10, 2014 at 12:46 pm

    Funny that the Comparative Legal Scholars brief unwittingly proves judge Posner's point that "homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world". Apparently those "legal scholars" don't realize the implication of that in regards to heightened scrutiny for sexual orientation here in the US.

    Another brief that's interesting is the Calabresi / Scharffs brief as it reveals how frightened the bigots are of the animus scrutiny standard. They should be frightened.

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