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

LGBT Legal Cases Marriage equality Marriage Equality Trials

Fifth Circuit Court of AppealsThe final brief has been filed in the Texas same-sex marriage case in the Fifth Circuit Court of Appeals. As we’ve previously reported, the Fifth Circuit has assigned the Texas and Louisiana cases to the same three-judge panel. The cases will be heard at the same time, though arguments haven’t yet been scheduled.

The opening brief is here. The response brief is here.

Read the reply brief here thanks to Equality Case Files:

14-50196 Appellants' Reply by Equality Case Files

124 Comments

  • 1. sfbob  |  October 13, 2014 at 12:26 pm

    The table of contents tells you all you really need to know about the depth of their arguments.

  • 2. guitaristbl  |  October 13, 2014 at 12:39 pm

    Same old nonsense, at cases even less convincing than the arguments other states have provided.

  • 3. RnL2008  |  October 13, 2014 at 12:53 pm

    The brief from the State just shows more double talking and less comments directly on point and to contend that both the 4th, 7th and 10th Appeal panels got their rulings wrong and the 5th will get it right is simply denying that which is real…..the right to marry is FUNDAMENTAL regardless of how one wants to see it and to say that the State DOESN'T have to provide the evidence to back their claims is seriously a flaw in their argument!!!

    This brief from the State of Texas does NOTHING more than repeat what the other States have already argued and lost……and if the 5th rules against us……..it ONLY means that SCOTUS will probably step in and FINALLY do what their silence did……..ME will still come to those States who DON'T agree with the right to marry for Same-Sex couples…….and with new technology……two women can conceive between themselves by using Stem Cells changed into sperm…….might be harder for men, but if Procreation is NOT a qualifier for marriage as the State contends……then the whole argument on procreation is a moot point.

    Maybe by the time this argument is heard by the 5th, they will be forced to rule in our favor just because of the beat down they will get by SCOTUS…..we will have to wait and see…….maybe the 6th will show them how it should be handled!!!

  • 4. josejoram  |  October 14, 2014 at 4:45 am

    I think from my ignorance that the assertion where they state that "the state has not show any evidence" relies upon the "rational basis" analysis.

  • 5. wkrick  |  October 13, 2014 at 1:50 pm

    The Idaho stay has been dissolved as of 9am Monday the 13th. http://cdn.ca9.uscourts.gov/datastore/general/201

    So we're up to 30 states now.

  • 6. franklinsewell  |  October 13, 2014 at 1:51 pm

    As of 9 a.m. Wednesday, the 15th: https://www.scribd.com/doc/242857305/14-35420-196

  • 7. wkrick  |  October 13, 2014 at 1:58 pm

    My mistake. The court order to dissolve it was filed on Oct 13th, but doesn't go into effect until 9am on October 15th. Thanks for the correction.

  • 8. RnL2008  |  October 13, 2014 at 2:03 pm

    Need to go update my stars on my flag:-)

  • 9. Mike_Baltimore  |  October 13, 2014 at 7:09 pm

    And since there is no waiting period in Idaho, that means applications for licenses, receipt of license, and actual marriage, can occur as soon as the county recorder offices open Wednesday, or soon after.

  • 10. KahuBill  |  October 13, 2014 at 2:16 pm

    Joe.my.god is reporting that Monte has filed a "demand" (?) that Latta be heard by the 9th Circuit en banc. Any info on that? I say good luck to him – but could O'Scannlain use this to delay things?

  • 11. franklinsewell  |  October 13, 2014 at 2:20 pm

    Kahu – We're talking about that over on the other thread. Universally, no one believes the Petition for Rehearing En Banc will succeed. CPM no longer has standing.

  • 12. KahuBill  |  October 13, 2014 at 2:41 pm

    I read that the Governor and AG have secided to appeal now and "defend" Idaho's Constitution.

  • 13. franklinsewell  |  October 13, 2014 at 3:10 pm

    Yup. Here's ScotusBlog's report on that: http://www.scotusblog.com/2014/10/once-more-same-

  • 14. guitaristbl  |  October 13, 2014 at 2:20 pm

    As long as there is no stay O'Scannlain can do whatever he wants. Start shouting at every judge in the 9th to grant en banc, hold his breath till he turns blue, spin his head etc. It doesn't matter. By the time SmithKleine was not reviewed en banc, there is not a chance this will be, no matter how much O'Scannlain delays that denial.

  • 15. StraightDave  |  October 13, 2014 at 3:09 pm

    The petition https://www.scribd.com/doc/242856856/12-17668-274

    His main complaint seems to be that they (the lack-of-standing CPM) had the misfortune to draw unfriendly judges. Actually, he's as much as saying it wasn't simply back luck. First, he disses the court, then he's gonna ask them to be fair in judging his case….. well, it's not even *his* case.

    "overwhelming improbability" that such a panel could have been picked randomly.

    "not the result of a random or otherwise neutral selection process"

    "Troubling questions arise"

    I wonder what he'll say when the 6th Circuit rules the same way.

  • 16. Zack12  |  October 13, 2014 at 3:36 pm

    Someone should mention Jerome Holmes of the 10th circuit to him.
    If you look at his history, there is no way you would ever thought he would have ruled in our favor.

  • 17. guitaristbl  |  October 13, 2014 at 3:38 pm

    So it's a direct attack to Reinhardt and Berzon. I doubt the 9th will appreciate that to be honest. Do these people have any proof on their claims that the selection was not random ? Cause if not, I would guess their allegations would in themselves be a reason for legal action or discipline of some kind from the court.

  • 18. StraightDave  |  October 13, 2014 at 4:17 pm

    The Python did some sort of Regnerus-esqe statistical analysis of previous LGBT cases and panels, concluding that there's no way we could be that lucky unless the dice were loaded.

  • 19. ebohlman  |  October 13, 2014 at 11:48 pm

    Actually, the analysis reminds me more of a recently-published (and even more recently retracted) paper claiming the CDC covered up a finding that measles vaccination causes autism in African-American boys. The anti-vaxxers still regard it as gospel, as I'm sure the Professional Homophobes will regard Stewart's claim.

  • 20. davepCA  |  October 13, 2014 at 4:56 pm

    Wow, this guy is REALLY grasping at straws… and shooting himself in the foot in the process. If nothing else, he's certainly very limber : )

  • 21. TonyMinasTirith  |  October 13, 2014 at 11:15 pm

    He's desperate, and desperate men do desperate and dispicible things. He's also doing this, besides to keep billing the state(s), to generate fodder for the talking air heads at Fox News, Mike Huckabee and maybe Ted Cruz. He's hoping the general media will pick up this suggestion of impropriety by the unelected San Francisco judges and run with it. Fox will, but doubfly the real news networks. They'd like to rally mobs in the streets in the 10s or 100s of thousands as was seen in France last year. Good luck with that. America heard about the SCOTUs news last week and either yawned or said to themselves, oh kool, now Tom and Jim down the street, or from work can get married!

  • 22. ebohlman  |  October 13, 2014 at 11:41 pm

    He's grasping at the straws he's drinking the Koolade with..

  • 23. sfbob  |  October 13, 2014 at 4:56 pm

    They are really and truly grasping at straws. This argument consists of little more than whining that they didn't win.

  • 24. RQO  |  October 13, 2014 at 6:35 pm

    How old is Monte? Is he a regular appellate counsel? Talk about burning bridges.

  • 25. ebohlman  |  October 13, 2014 at 11:39 pm

    He's 65. He ought to consider retirement.

  • 26. tornado163  |  October 13, 2014 at 6:49 pm

    His petition makes no sense to me. Bruning is in the main text, but the 4th, 7th, and 10th Circuit decisions are hidden in a footnote. Maybe it's a bit unlikely that Reinhardt, Berzon, and Gould had all been on gay rights cases in the past, but given the sheer number of cases the 9th Circuit hears, you could mine plenty of data to find other unusual circumstances. The odds of me seeing a car with license plate 4DF29S is pretty unlikely, but if I saw it earlier today that doesn't make it a miracle car. And can someone explain why Monte Stewart attached his resume at the end of his petition? Is he applying for a job with the 9th Circuit.

    Oh, and apparently Judge Posner has disgraced the federal courts. Go figure.

  • 27. ebohlman  |  October 13, 2014 at 11:38 pm

    And can someone explain why Monte Stewart attached his resume at the end of his petition? Is he applying for a job with the 9th Circuit.

    More like he's trying to claim himself as an expert witness, which of course makes absolutely no sense in appellate proceedings.

  • 28. Dr. Z  |  October 13, 2014 at 11:18 pm

    Of course, if random chance had instead been operating in their favor, they'd have been quick to claim it was all God's doing and that he meant to signal some kind of divine displeasure by cooking the die roll. Since they lost this roll of the dice, it's got to be attributable to human agency since God would never side against them.

  • 29. guitaristbl  |  October 14, 2014 at 4:03 am

    The 6th has democratic appointees and we got a panel with a GOP SCOTUS hopeful, a senior justice appointed from a democratic president and well, Sutton.
    It's a set up against equality ! I call conspiracy before I see the decision lol !
    I want Monte to answer this : What does he believe we're his chances to prevail in front of any panel in the 9th ; I can think of only 2 or 3 compositions out of thousands that this could happen.

  • 30. hopalongcassidy  |  October 13, 2014 at 4:43 pm

    Hahaha…I see Monte managed to cite our own Scottie in his "demand"! Woohoo
    ( # 12 in the list)

  • 31. davepCA  |  October 13, 2014 at 8:30 pm

    Whoa! Cool! Hey Scottie, your fifteen minutes of fame starts NOW! : )

  • 32. Dr. Z  |  October 13, 2014 at 2:16 pm

    SCOTUSBlog says the legality of SSM is unresolved in the Fifth, Sixth, and Eleventh. But what about the Eighth? The Bruning precedent is looking pretty shaky by now.
    http://www.scotusblog.com/2014/10/no-delay-on-ida

  • 33. guitaristbl  |  October 13, 2014 at 2:22 pm

    That's a peculiar thing for SCOTUSblog to claim, when SCOTUS itself did not consider Brunning as a circuit split when it denied cert a week ago (I doubt that it would think it's a circuit split and still deny cert).

  • 34. ebohlman  |  October 13, 2014 at 2:53 pm

    I think SCOTUSBlog was just referring to the Circuits with pending or decided post-Windsor cases; nothing's been appealed to the Eighth (or First or Third) so far.

  • 35. SteveThomas1  |  October 13, 2014 at 3:02 pm

    Two points:

    1. We don't know what SCOTUS considered when it denied cert., since they didn't tell us. From Justice Ginsburg's comments, or general principles, one might infer that they didn't think Brunning represented a "real" circuit split, and I'd be inclined to think that inference was probably correct. But until the decades from now we are unlikely to know what the substance of their discussion was.

    2. Brunning is from nearly a decade ago, and pre-Windsor. While not as obviously irrelevant as Baker v. Nelson (which is still trotted out in every opponent's papers), it's a fair bet that when the issue comes to the 8th Circuit the panel will consider that it has a more or less blank slate upon which to write. (Of course, that doesn't mean they won't rewrite Brunning on that blank slate.) Brunning presents a more difficult challenge to district court judges in the 8th Circuit, because it is still technically controlling, and because whatever signals SCOTUS may be now sending it has not yet expressly spoken on that issue.

  • 36. Mike_Baltimore  |  October 13, 2014 at 3:36 pm

    It's interesting that 'Baker' was not an impediment to the SCOTUS ruling on October 6, 2014, but wasn't the 'Baker' decision a SCOTUS decision?

    After all, isn't the precedence of the ruling drug out to try to keep any court from touching ME cases? And isn't Minnesota in the 8CA?

    Maybe SCOTUS doesn't consider 'Baker' (or other cases in the 8CA) to be precedent.

  • 37. SteveThomas1  |  October 13, 2014 at 3:58 pm

    Baker v. Nelson was a summary affirmance, and is 42 years old. At the time Baker was decided the statute governing appeals as of right to the US Supreme Court were different than they are now (where almost all appeals heard by SCOTUS are discretionary). As a result, there were a fair number of cases which were technically before SCOTUS on appeal, but which they didn't want to spend resources on deciding. (Today, such cases would simply have cert. denied.) Baker was one of those cases.

    This is all from dim memory, but I believe (under the regime in place at the time of Baker v. Nelson) that the losing party in a state supreme court case who was claiming violation of his or her or its federal constitutional rights had an appeal to SCOTUS as of right; thus when the Minnesota Supreme Court held that refusing to marry two people of the same gender did not violate their federal constitutional rights, they had an appeal as of right to SCOTUS, which apparently they exercised.

    The problem was that, while SCOTUS no doubt would have turned down the appeal if it could have, when faced with a case actually before them, SCOTUS could only affirm or reverse. Thus the summary affirmance, which affirmed without analysis. Everyone knew (and still knows) that a summary affirmance does not involve the same attention from the Court as a case fully briefed and argued, with a full decision. But at the same time it's not quite the same as a denial of cert. (which doesn't create any actual precedent from the Supreme Court, whatever signal it's otherwise sending). Thus, there developed the polite fiction that SCOTUS has thought through the case (they almost certainly hadn't) and it was binding precedent, but that such summary affirmances could be simply ignored where "subsequent doctrinal developments" cast doubt on the continuing validity of the precedent.

    At the oral argument of one of the SCOTUS same-sex marriage cases, one of the anti-marriage equality advocates began to mention Baker v. Nelson, and one of the Justices shut him promptly down. I think it's safe to say that none of the Justices gave even a nanosecond of thought to Baker v. Nelson. But due to the odd procedural history, a small of forest of trees sacrificed their lives to provide the paper wasted on it.

    Minnesota is indeed in the 8th Circuit, but I believe that it became a marriage equality state following the defeat of an anti-marriage equality referendum in 2012 and subsequent action by the legislature and governor. (Iowa is also an 8th Circuit jurisdiction, but it got marriage equality due to a ruling from its Supreme Court based on Iowa constitutional law rather than federal constitutional law.)

  • 38. Mike_Baltimore  |  October 13, 2014 at 4:24 pm

    Yes, at the time of 'Baker', SCOTUS accepted or rejected requests for review from the highest courts of the states.

    That is still the same situation – if a party to a case wants an additional court to review a case, they can go from the state's highest court to SCOTUS. No other Federal court is involved. That is how SCOTUS got the 'Loving' case – it started in state court in Virginia, and eventually was appealed from the VA SC to the US SC. Several other cases took the same or similar route, both before and after 'Baker', and it still is the path that can be taken today.

  • 39. SteveThomas1  |  October 13, 2014 at 4:41 pm

    I must not have been clear. Let me try again:

    Today, if you are dissatisfied with the decision of the highest state court to which you have a right of appeal, you may *ask* the US Supreme Court to hear a further appeal. This is almost always done with a petition for certiorari (abbreviated as "cert."). SCOTUS can agree to take the appeal or decline to take the appeal: these are known as granting or denying cert., respectively. When the US Supreme Court denies cert. it's telling the losing party: sorry pal, but we won't hear your case. And when the US Supreme Court denies cert. it doesn't created precedent. It simply declines to weigh in.

    The situation with Baker v. Nelson was entirely different. The appellants (the losing parties in the state court case) did not have to ask the Supreme Court to please hear their appeal — they had the *right* to appeal, and the Supreme Court could not turn the appeal down. The Supreme Court had to at least pretend to listen to them. (This is what is meant by "appeal as of right".) In the case of Baker v. Nelson they no doubt wished they could have turned it down, but the jurisdictional statutes in force at that time did not allow them to do so. They were required to decide the case, which meant they either had to affirm the decision of the Minnesota Supreme Court (if that's what they call it) or reverse it. Because they didn't want to spend time thinking about it, they issued a "summary affirmance", with the meaning I tried to explain.

    Not long after the Baker v. Nelson case, the jurisdictional statutes were revised to make almost all appeals to the Supreme Court discretionary, which is the state of the law today. Thus, in virtually no cases does the US Supreme Court have to make a decision on a case when they don't want to. Part of the reason for the revision in the jurisdictional statutes was because of the detritus of summary affirmances which were clogging up the federal court system.

    I hope I've made this clear this time.

  • 40. jm64tx  |  October 13, 2014 at 4:58 pm

    Baker v Nelson was NOT a summary *affirmance*.

    Baker v Nelson was a DISMISSAL … the reason for the dismissal? Want of a substantial federal question, i.e. there was no federal constitutional question in the denial of a same-sex marriage license.

  • 41. hopalongcassidy  |  October 13, 2014 at 5:00 pm

    Which was their opinion then. This is now.

  • 42. SteveThomas1  |  October 13, 2014 at 5:19 pm

    Dismissing the appeal amounted to an affirmance of the lower court's holding, at least as regards the federal constitutional question.

  • 43. Mike_Baltimore  |  October 13, 2014 at 6:03 pm

    You were very clear the first time in demonstrating not knowing what the case was about, and how it was handled by SCOTUS.

  • 44. SteveThomas1  |  October 13, 2014 at 6:13 pm

    Very well, Mr. Baltimore. I won't engage with you further.

  • 45. Mike_Baltimore  |  October 13, 2014 at 6:24 pm

    My last name is NOT Baltimore. I live in Baltimore City, and several descendants of my ancestors have lived in Baltimore City (prior to it separating from Baltimore County), but my last name is NOT Baltimore.

    You would know why I post under that name if you had read EoT for more than a day or two – I told the people then reading EoT that because registration was required, I would no longer be posting under the name I formerly did, and would use 'Mike_Baltimore' for reasons I gave when I made the change.

    By the way – have you ever heard of a 'request for certiorari'? That is the long name for 'cert', not the gobble-de-gook you said it was called.

  • 46. wes228  |  October 13, 2014 at 6:33 pm

    Baker v. Nelson was not decided from a petition for certiorari. Baker did not have to petition the Supreme Court to hear his case. Due to the laws in place at the time, the Supreme Court was obligated to take the appeal so therefore it was an appeal as of right.

  • 47. ragefirewolf  |  October 14, 2014 at 6:07 am

    Mike, as an aside – I would personally like to call you Mr. Baltimore because I think it's cute 😉

    Otherwise, do go on. 🙂

  • 48. wes228  |  October 13, 2014 at 6:23 pm

    SteveThomas' understanding is correct.

  • 49. wes228  |  October 13, 2014 at 5:34 pm

    It is also unresolved in the 1st and 3rd Circuit, which may have to hear a challenge to Puerto Rico or the Virgin Island's anti-gay marriage laws.

  • 50. SteveThomas1  |  October 13, 2014 at 8:07 pm

    True. There is litigation in the District Court in Puerto Rico, but I don't know where that stands. (PR is covered by the 1st Circuit.)

    Am I correctly recalling that while all of the states in the 1st Circuit have marriage equality, they all came to marriage equality by some means other than a federal court decision? If that's the case, there may be no controlling 1st Circuit precedent on the state (or in this case territorial) same-sex marriage bans.

    There is a 1st Circuit case ruling DOMA unconstitutional, but as I recall it was the 2nd Circuit DOMA ruling that held some form of heightened scrutiny was applicable.

  • 51. Mike_Baltimore  |  October 13, 2014 at 9:41 pm

    From Wikipedia ( http://en.wikipedia.org/wiki/Gill_v._Office_of_Pe… ):

    "Gill et al. v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challenging the constitutionality of section 3 of the Defense of Marriage Act (DOMA), the section that defines the term "marriage" as "a legal union between one man and one woman as husband and wife" and "spouse" as "a person of the opposite sex who is a husband or a wife." "

    So yes, there are at least two Federal court decisions on ME in the First Circuit, including at least one decision at the Circuit Court level. In fact, the 'Gill' case was one of the cases SCOTUS held in 2013 until dismissing the appeal following the decision in the 'Windsor' case.

  • 52. SeattleRobin  |  October 13, 2014 at 11:36 pm

    That's a ruling on DOMA, not a ruling on ME.

  • 53. JayJonson  |  October 14, 2014 at 6:07 am

    Uh, the challenges to DOMA were certainly a part of the quest for marriage equality. Not only is the Windsor ruling striking down DOMA crucial to the string of victories we have had in federal court recently, but those victories come in challenges to state versions of DOMA. So I would say that Gill was a central case in the quest for marriage equality.

  • 54. SeattleRobin  |  October 14, 2014 at 9:47 pm

    I agree that the DOMA cases were instrumental in getting us to where we are today. However, ruling that the federal government cannot discriminate between already existing legal marriages is not at all the same thing as ruling that a state cannot prevent gay people from marrying.

  • 55. SteveThomas1  |  October 13, 2014 at 8:26 pm

    In the 3rd Circuit, similarly, there's no circuit court opinion on marriage equality: Delaware became a marriage equality state through legislation, New Jersey pursuant to state law as per the NJ Supreme Court, and Pennsylvania through a District Court opinion and order which was not appealed. (The US Virgin Islands are covered by the 3rd Circuit.)

  • 56. Mike_Baltimore  |  October 13, 2014 at 9:47 pm

    "The U.S. Court of Appeals for the Third Circuit on Monday denied a request by Theresa Santai-Gaffney, the Register of Wills and Orphans’ Court Clerk for Schuylkill County, Pa., seeking an “en banc” hearing in her bid to gain standing to defend the state’s ban on same-sex marriage."
    ( http://www.lgbtqnation.com/2014/08/third-circuit-… )

    So, yes, there is a ruling by the Third Circuit on ME cases.

  • 57. jpmassar  |  October 13, 2014 at 9:54 pm

    That's a ruling on standing, it seems.

  • 58. SteveThomas1  |  October 13, 2014 at 10:11 pm

    Yes, it was. The 3rd Circuit never issued an opinion on marriage equality because no one with standing ever lodged an appeal there.

    Perhaps I was not as clear as I should have been when I used the term "marriage equality": what I meant by that term was a court ruling or legislative enactment allowing LGBT folk to get married to the person of their choice under the applicable state (or territorial) law. I did not mean it to encompass cases involving DOMA, since a holding that section 3 of DOMA is unconstitutional did not give anyone a right to get married under state law. (The DOMA cases, Windsor and the ones in the 1st and 2nd Circuits, only ensured that if someone was married under state law the federal government would recognize that marriage.)

  • 59. JayJonson  |  October 14, 2014 at 6:11 am

    See above. You were right the first time. Challenges to DOMA are central to the right to marry. Most of the state laws we are challenging now are just state versions of DOMA. No wonder Windsor has been so crucial in our victories. When District and Appellate courts struck down DOMA, they were conscious of the implication that would have on the quest for marriage equality. Certainly, Scalia understood the effect that Windsor would have. He was right.

  • 60. SteveThomas1  |  October 14, 2014 at 7:12 am

    I think perhaps I confused things here.

    The question I was trying to answer was whether either the 1st or the 3rd Circuits had issued a ruling on the question of whether it was unconstitutional for a state to ban same-sex marriage. Perhaps too hastily I used "marriage equality" as a shorthand for that issue, rather than for the more general movement for marriage equality.

    No one doubts that the Windsor case, and the lower court cases invalidating section 3 of DOMA, were absolutely central to the movement for the right of LGBT folk to marry. In Justice Kennedy's majority Windsor opinion, and in Chief Justice Roberts' dissent, the point is made, however, that the actual holding in Windsor does *not* cover the question of whether it is unconstitutional for a state to ban same-sex marriage. Justice Scalia, in his Windsor dissent, was correct in pointing out that the *rationale* for the holding in Windsor was almost directly applicable to the latter question. And indeed a whole string of lower courts have found that to be precisely true. But it is important to distinguish the rationale of a decision from its actual holding.

    Let me try with a different shorthand: rather than calling cases which deal with a state's same-sex marriage ban a "marriage equality" case tout court, let's call a case in which a court holds that a state may not constitutionally ban same-sex marriage a "state marriage equality" case (or "SME").

    Using this shorthand, I reassert my contention thus: neither the 1st nor the 3rd Circuits have at the appellate level rendered a SME decision. The only circuits which have rendered a SME at the appellate level are the 4th, 7th, 9th and 10th. The *states* in the 1st, 2nd, 3rd and D.C. Circuits all have marriage equality (by which I mean same-sex marriages are permitted under state law) currently, which means that no SME case is really possible at those circuit courts (with the exception of SME cases from Puerto Rico and the US Virgin Islands). Any SME case brought there would be dismissed as moot.

    Although the rationale behind the invalidation of DOMA and the invalidation of state same-sex marriage bans are virtually identical, no DOMA case's *holding* will have the effect of making same-sex marriage available in a jurisdiction where it was not previously available. (DOMA is federal law, and I am unaware of any federal law which provides for the actual act of getting married.) If a DOMA case could have made same-sex marriage available in a jurisdiction where it was not previously available, Windsor would have instituted same-sex marriage nationwide. But it couldn't and didn't.

  • 61. JayJonson  |  October 14, 2014 at 7:43 am

    I understood the distinction you were making. But I think it is basically a distinction without a difference. If we are talking about the cases that lead to nation-wide marriage equality, we do a disservice to omit the DOMA cases, on which the SME cases hinge. Just as we would do an disservice in omitting the cases that had to do only with marriage recognition or death certificates, etc. They are all part of the (hopefully inexorable) movement toward equal marriage rights.

    In any case, I do not think we have to worry about the First or Third Circuit ruling against marriage equality. Their rulings striking down DOMA will be significant precedents (along with Windsor) should an sme case come before them.

  • 62. SteveThomas1  |  October 14, 2014 at 7:46 am

    We're talking past each other here. I've explained the question I was addressing. You don't care about that question. That's fine.

  • 63. JayJonson  |  October 14, 2014 at 8:01 am

    I do care about the question you are addressing. I am only suggesting that if we talk about marriage equality cases, we must include cases other than those that challenge state bans on same-sex marriage. These cases are intertwined. While they can be distinguished on the basis of federal and state, recognition or right to marry, etc., in the long run they are connected and need to be seen together.

    If we don't make the connections, we wind up giving credence to the arguments of the opponents of same-sex marriage, who say that Windsor had nothing to do with the right to marry–it was only about the federal government honoring state decisions. Over and over, our opponents have parroted Roberts' dissent to that effect. Except for Feldman in the Louisiana case, no district judge and no majority appellate panel has accepted that argument. Hence, I don't think it valuable for us to decouple the connection unless absolutely necessary.

    I do not disagree with your observations otherwise.

  • 64. SteveThomas1  |  October 14, 2014 at 8:18 am

    Sorry. I didn't mean to "give credence" to opponents of the right to marry. I don't understand how I did so. If making distinctions does that, then it should be my job to remain silent. But I did hope that somehow being clear about what was being done wasn't entering into a pact with the devil, as you seem to think.

  • 65. JayJonson  |  October 14, 2014 at 9:09 am

    Stop it with the petulance. This is a board on which people try to clarify and express their opinions. I was trying to support your general remarks by putting them in a fuller context. I am not suggesting that you are making a "pact with the devil" or that you should be silent.

    You are perfectly free to think that the DOMA cases, including Windsor, have nothing to do with the state marriage equality cases. Chief Justice Roberts agrees with you.

  • 66. SteveThomas1  |  October 14, 2014 at 9:25 am

    I'm sorry you're reading me as petulant; that was not my intent. But you seem to be completely misreading what I was trying to say.

    I was *not* trying to say that Windsor had "nothing to do with the state equality cases." In fact, I said precisely the opposite, in saying that the *rationale* for the holding in Windsor had been found by some 40 courts to be precisely applicable to state marriage equality cases. How that can be interpreted as "nothing to do with" simply baffles me.

    What I *was* saying was that the *holding* of Windsor by its terms did not apply to the issue of state marriage equality. Not a single state attained marriage equality as a direct result of the Supreme Court's decision. So far as I can see, this is almost undeniably true. Had the *holding* of Windsor by its terms applied to the issue of state marriage equality, the litigation we have seen since then would have been pointless, because marriage equality would be the law of the land throughout the country rather than being instituted state by state and circuit by circuit.

  • 67. JayJonson  |  October 14, 2014 at 10:57 am

    I am sorry if I have misread your reaction as petulant.

    I fundamentally disagree that "Not a single state attained marriage equality as a direct result of the Supreme Court's decision [in Windsor]."

    I would say that every ruling we have had post Windsor that struck down state marriage bans was a direct result of the Supreme Court's decision in Windsor.

  • 68. SteveThomas1  |  October 14, 2014 at 11:23 am

    I'm giving up now. It appears that you simply don't want to understand the difference between what a court *holds* and the *reasoning* behind it. Fine, I won't try again.

  • 69. wes228  |  October 14, 2014 at 7:46 am

    The 3rd Circuit has never ruled on DOMA, but thankfully we have Windsor which is nationwide precedent anyway.

    I'm curious as to why nobody is fighting to get same-sex marriage in the territories (other than Puerto Rico, which does have a suit by Lambda Legal). The 9th Circuit applies to our Pacific territories. And I'm dying to just close off the 1st and 3rd Circuits…which are not technically complete until this is done.

  • 70. Fledge01  |  October 14, 2014 at 8:22 am

    Even though they vote Democratic 95% to 5% Republican (or some percentage skewed like that), they are liberal in the sense of government entitlement spending and libertarian in others, but nearly all the population is very active in church and they can be very conservative religiously in some ways. You need plaintiffs to bring a case. But if you ever saw a Mardi Gras parade in the Caribbean, it would make participants in a Pride parade blush.

  • 71. SteveThomas1  |  October 14, 2014 at 8:29 am

    To wes228: I think there are two answers to your question:

    1. From a public relations point of view, folks think of the US as being comprised of the states, so when we discuss the number and proportion of states with marriage equality, and the proportion of the population, we are generally talking about the states (plus D.C.). Thus, when we went to 30 states, that was news. Going to 30 states, plus D.C., plus Guam wouldn't have been quite so much news. Indeed, if Mississippi goes into the marriage equality column, that would be big news. The Maldives, not so much.

    2. The legal situation is, I understand, pretty complex, and differs from territory to territory. I do know that the 14th Amendment is operative in Puerto Rico, but I'm not entirely sure about its status in other territories (and marriage equality comes to the states through the 14th Amendment). Some US laws are fully operative in PR (like the bankruptcy code) whereas others are not (such as the internal revenue code). And each territory has its own idiosyncrasies. I'm absolutely not expert in this area of law, so pretty much all I know about it is contained in what I've just written.

    (I'll also note that Native American tribes are sovereigns and have their own marriage laws. How those legal systems fit into the US system is a mystery to me; but I do know that it's highly complex. For similar public relations reasons, no one seems to mention Native American tribal law in this context.)

  • 72. wes228  |  October 14, 2014 at 9:16 am

    Congress has applied the 14th Amendment to all of our territories. Certainly there must be ONE gay couple who wants to get married in each territory. How religious the population is is entirely inconsequential.

    Native American tribes are not subject to state law, but Congress has applied the 14th Amendment to them as well through the Indian Civil Rights Act.

  • 73. SteveThomas1  |  October 14, 2014 at 9:28 am

    You almost certainly know more about territorial law and tribal law than I do. I dimly recalling having read some commentary somewhere that seemed to imply slightly more complexity in those issues, but I haven't time (or that much desire) to investigate those issues further.

  • 74. wes228  |  October 14, 2014 at 9:35 am

    The Indian Civil Rights act says that Indian tribes cannot "deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law."

    So technically it doesn't say flat-out "The 14th Amendment applies to the Indian Tribes" but it uses the same language. It would probably have to take a second court order (these court orders strike down state laws, not tribal laws), but if there is precedent saying that it violates equal protection and/or due process to ban gay couples from marrying, I don't see how a court could uphold that given the Indian Civil Rights Act.

    The same is true with the territories. The law doesn't say "14th Amendment applies!" It is a federal law that uses the same language as the EPC/DPC of the 14th Amendment.

  • 75. SteveThomas1  |  October 14, 2014 at 9:38 am

    Thanks for the info.

  • 76. SeattleRobin  |  October 14, 2014 at 10:37 pm

    I would think that members of a tribe would need to go to their court, and then federal if needed. In Washington we gained ME in 2012 through the legislature, confirmed by a referendum vote. At that time one tribe in Washington already had marriage equality from a vote in 2011. Since then a few other tribes have added it, but not all.

    In practical terms it probably doesn't matter that much since tribe members can still be married by the state. But I'd assume there is a profound emotional benefit to being married within the tribe.

  • 77. sfbob  |  October 14, 2014 at 9:33 am

    I'm assuming you meant to refer to the Marianas above (in #1) rather than to the Maldives. The Maldives are an independent nation which, as far as I know is quite conservative and doesn't have marriage equality. Were they to jump into the marriage equality column, perhaps as a way to promote tourism, I'd think that would be rather a big deal.

  • 78. SteveThomas1  |  October 14, 2014 at 9:36 am

    You are correct and I was wrong. This pretty much vividly demonstrates just how little I know about US territories.

  • 79. flyerguy77  |  October 13, 2014 at 3:21 pm

    Honesty, I feel as right now the 5th circuit Court of appeals will rule it unconstitutional based on other circuits decisions and the hints from SCOTUS. SCOTUS is not stopping these decisions going in affect. I can change my mind after the oral arguments. I know the SCOTUS is keeping an eye. "9 eyes" on these cases. I'm giving them benefit of doubt for now.

  • 80. sfbob  |  October 13, 2014 at 5:00 pm

    I would correct you and say SCOTUS is keeping 18 eyes on the cases rather than 9, but given Clarence Thomas's history of saying nothing during oral arguments he may have at least one eye shut. Meanwhile Scalia is keeping his ears covered. So there's that.

  • 81. RQO  |  October 13, 2014 at 6:38 pm

    Whose one eye saw the hair on the Coke can? I can't remember.

  • 82. ebohlman  |  October 13, 2014 at 11:54 pm

    Thomas.

  • 83. debater7474  |  October 13, 2014 at 3:25 pm

    I can't believe that in a filing before the 9th circuit, the CPM is actually accusing the court of rigging the panel. Talk about a wild accusation. I hope that Monte Stewart is planning on retiring next, because I can't imagine how he he will ever be able to practice before the 9th circuit again.

  • 84. guitaristbl  |  October 13, 2014 at 3:40 pm

    I believe both Reinhardt and Berzon (and the 9th as a federal agency for that matter) have a good legal case against Stewart and the coalition if they have no proof to support their accusations. You can't light heartedly make such accusations about a basic principle in federal appeals courts and walk away with it. They are getting desperate but they are getting clumsy as well.

  • 85. Dr. Z  |  October 13, 2014 at 5:55 pm

    I've been wondering how long the feds were going to permit these kinds of accusations to be made before engaging in disciplinary responses (e.g. accusing gay judges of bias without proof; accusing AGs of colluding with plaintiffs without proof; and now accusing the entire Ninth Circuit of gross misconduct.) Sooner or later they're going to have to put NOM in its place but it keeps not happening, I wonder what it would take at this point.

  • 86. guitaristbl  |  October 13, 2014 at 6:27 pm

    SCOTUSblog now has an article on the issue…I can't believe this is getting so much attention really..They have provided ZERO arguments in favour of their conspiracy theories. If they have evidence that the panel was not selected randomly, they should submit them or be disciplined immediately.
    They know they have no chance to achieve anything en banc anyway, so that makes their accusations moot.In SmithKleine only 3 of the judges sitting in the 9th voted to review this case en banc, with ANY panel of judges their chances to prevail were at best barely existant. Except if they got a panel with O' Scannlain and another 9th cir. bigot like Bybee or Bea (there aren't much more anyway..).
    This is ridiculous and they should be put in their place, it's about time you are right.

  • 87. ebohlman  |  October 14, 2014 at 12:00 am

    FRAP 38 allows the 9th to award the plaintiff-appellees up to twice their costs (to be paid by the CPM) if they deem the CPM's request frivolous.

  • 88. sfbob  |  October 14, 2014 at 9:42 am

    If CPM is anything like their masters at NOM, the plaintiffs will have go back to court several times just to collect the damages owed them. The entire anti-equality movement is nothing but an enormous scam operation. They have no interest in the law as such and have shown their contempt for the law and for judges over and over again.

  • 89. David_Midvale_UT  |  October 13, 2014 at 3:43 pm

    Meanwhile. . . Here in Utah, heads are still exploding like in “Mars Attacks!”. http://www.heraldextra.com/news/opinion/local-gue

  • 90. RnL2008  |  October 13, 2014 at 4:30 pm

    Sounds like this person is part of the Constitutional Party and feels that his way of living is being stripped away from him because the Justices DIDN'T rule his way………..he DOESN'T obviously understand EXACTLY what the purpose of SCOTUS is….and it's NOT there to make idiots like him feel better……and I have to admit that some rulings by SCOTUS leave me questioning their sanity, like making Corporations "A PERSON" and allowing the ruling in the Hobby Lobby case to Dictate how a religious belief can OVERRIDE an individual's right to make certain decisions regarding their own body……..and other such rulings…..but to make false accusations regarding the INTEGRITY of an Appeal's ruling is just a bit much……..frankly, either prove your allegations or go sit down in the corner and stuff a sock in it!!!

  • 91. hopalongcassidy  |  October 13, 2014 at 4:34 pm

    It's a woman. A truly ignorant vile one.

  • 92. RnL2008  |  October 13, 2014 at 4:41 pm

    Okay, my bad and that's just so wrong on so many levels!!!

  • 93. ragefirewolf  |  October 14, 2014 at 9:47 am

    Apparently us getting married will cause a civil war and/or Armageddon…I didn't realize my personal life was so powerful.

  • 94. hopalongcassidy  |  October 13, 2014 at 4:34 pm

    A BYU "graduate" who describes a state leaving the union as "succession". Sounds just about right.

  • 95. DavidAZ1  |  October 13, 2014 at 6:46 pm

    She did BYU via home schooling.

  • 96. BillinNO  |  October 13, 2014 at 10:08 pm

    I saw that. Freaking Moron.

  • 97. SeattleRobin  |  October 14, 2014 at 12:01 am

    Holy crap that was quite a screed! She talks as if all these ME decisions have come from lefty ideologues. Since this all basically started with Walker, appointed by Bush the First, I do wish she'd pay attention.

    Then she goes off on range fees, abortion protesters, and how narrowly construed the second ammendment is, making it almost impossible for citizens to buy guns. I'm rolling my eyes over the first and last. And on the abortion protesters, again I wish she'd pay attention, because SCOTUS recently gutted some state laws that protected women going to clinics in favor of the protesters.

  • 98. Waxr  |  October 13, 2014 at 3:53 pm

    II.
    B, Texas’s marriage laws do not expressly classify based on sexual orientation, and even if they did, sexual orientation is not a suspect classification. ……

    If the Texas marriage laws do not classify on the basis of sexual orientation, then what is the basis for the ban? Race? Age? Political Party? Religion? Coin flips?

    I'm reminded of the classic defense for drunk driving:
    "Your honor. I could not have been drunk. First, I do not drink. Second, I only had one beer."

  • 99. guitaristbl  |  October 13, 2014 at 4:00 pm

    It's the same argument Idaho made essentially : A gay man can marry a woman and a lesbian woman can marry a man, when you go to receive a marriage license you are not denied one based on sexual orientation but based on your sex in relevance with the sex of the person that comes to receive the license with you. It's offensive, demeaning, irrational but in their bigoted minds it makes sense…

  • 100. davepCA  |  October 13, 2014 at 4:29 pm

    Actually, it doesn't typically 'make sense' to the bigots, they simply view it as a 'technicality' or a word game that they WISH would work. It clearly does not. It is a specious argument.

  • 101. wes228  |  October 13, 2014 at 5:36 pm

    Not to mention it was thoroughly trashed by the Supreme Court in Christian Legal Society v. Martinez: for the purposes of the law, there is no difference between homosexuality as status and behavior. A law that bans same-sex marriage is therefore not just banning the *act* of marrying someone of the same sex; it bans gay *people* from ever getting married.

    "A tax on yarmulkes is a tax on Jews" (Bray v. Alexandria Women's Health Clinic).

  • 102. sfbob  |  October 13, 2014 at 9:00 pm

    I see that you have also noted the significance of Christian Legal Society vs Martinez. I am somewhat surprised it has not been given more attention since it implicitly yet quite clearly provides a rather solid basis for construing sexual orientation as a suspect class in a way that neither Romer nor Lawrence before it did, though they certainly paved the way, as did Windsor. Either the Supreme Court has been more than usually cowardly in declining to follow through or the ideal case–one in which sexual orientation is front and center as a point of contention–has not yet been brought in front of them.

  • 103. wes228  |  October 14, 2014 at 6:07 am

    I am also surprised that I don't see us citing Martinez more often, since it so easily refutes the above argument.

  • 104. JayJonson  |  October 14, 2014 at 6:19 am

    Yes, Martinez is important. I remember in oral arguments Justice Ginsburg quietly observing that the Court had already decided that status and behavior cannot be separated (as the CLS said it was doing). I am not sure exactly on what basis she made that comment. Romer? Lawrence? If I recall correctly, the result was our familiar 5-4 split with the usual suspects.

  • 105. LK2013  |  October 13, 2014 at 4:09 pm

    Okay, if anyone wants a humor break, head over to http://www.towleroad.com/ and scroll down to the section on #whenImarrymyself and take a look at the twitter responses to NOM's Brian Brown's latest hysterical tweet from 4 PM today, "When #marriage is redefined, what prevents a person from 'marrying' his/herself?" He really is the perfect "straight" man … doesn't have a clue how he set himself up for this!

  • 106. Retired_Lawyer  |  October 13, 2014 at 4:40 pm

    Thank you, LK2013; I would never have seen that. It's great!

  • 107. weaverbear  |  October 13, 2014 at 4:52 pm

    Good lord, the man is unbelievable. Someone needs to tell him that the phrase "Go [email protected] yourself!" is an epithet and not a suggestion.

    But then again, he might be flexible enough to achieve it, given the amount of time he has spent with his head up his butt!

  • 108. ebohlman  |  October 13, 2014 at 7:57 pm

    Ah, the old junior high limerick about the man from Nantucket…

  • 109. franklinsewell  |  October 13, 2014 at 4:36 pm

    I mean .. notice of appeal and emergency motion to district court judge for stay pending appeal. I grow weary of crazy.

  • 110. sfbob  |  October 13, 2014 at 5:06 pm

    I suspect at least some judges and justices are right there with you.

  • 111. Fortguy  |  October 13, 2014 at 7:35 pm

    Joe.My.God reports Pam Bondi reverses course, asks Florida Supremes to consider ME.

  • 112. Rick55845  |  October 13, 2014 at 7:42 pm

    That's cool. Got a link?

  • 113. Fortguy  |  October 13, 2014 at 7:52 pm

    Yes: FLORIDA: AG Pam Bondi Reverses, Asks State Supreme Court To Rule On Marriage

  • 114. BobxT  |  October 13, 2014 at 7:58 pm

    She is still opposing SSM. Just wants state supreme court to rule, since Supremes did not.

  • 115. Fortguy  |  October 13, 2014 at 8:03 pm

    True, but maybe Florida couples won't have to wait until January if their SC understands the urgency here.

  • 116. guitaristbl  |  October 13, 2014 at 8:15 pm

    So what happens to the federal case ? She will continue pursuing that one as well, right ?

  • 117. Fortguy  |  October 13, 2014 at 8:22 pm

    For the time being, certainly. However, if the state SC rules first in favor of ME, it would become hard to see just what exactly she would then be able to defend in the federal judiciary.

  • 118. montezuma58  |  October 14, 2014 at 12:09 am

    Her move is nothing more than to give the appearance of being fair. Her rationale is that the US Supreme Court has abdicated their responsibility to weigh in on the issue. As long as it was still an open issue for the federal courts she can justify stalling in the state courts under the premise that the high court is still mulling the issue.

    She see's the writing on the wall at least as the fed case goes. If the state cases go through the normal appeals process the fed case will be done before the state Supreme Court gets done with it. Her move is just a Hail Mary to get a ruling against marriage equality.

  • 119. sfbob  |  October 13, 2014 at 9:03 pm

    An extraordinarily bad-faith reading of "rational basis." The state also manages to cite Jackson vs Abercrombie, which has been declared moot and therefore has no precedential value whatsoever.

  • 120. davepCA  |  October 13, 2014 at 11:29 pm

    Indeed. "Rational basis" is not a free pass to allow a blatantly unconstitutional denial of equal protection to remain in effect based on nothing but entirely illogical and false justifications. Yes, it's a pretty big hoop for the state to jump through when defending a law, but it still includes that pesky word "rational", and there must be at least some plausible connection between some reason offered for the law and the actual effect of the law. You can't make a law denying property ownership rights to left handed people and defend it by saying 'it might cure cancer, and that's all we have to argue since only Rational Basis applies'.

  • 121. sfbob  |  October 14, 2014 at 9:45 am

    I'd view it as an indirect attack on the reasoning in Romer vs Evans. They will undoubtedly claim that any sentence with a noun, a verb and an object would serve as "rational basis." But they'd be wrong. And the standards for assessing rational basis do vary depending on the circumstances. When a constitutional right is in question, even rational basis requires a higher standard than it would in a strictly economic case.

  • 122. guitaristbl  |  October 14, 2014 at 6:48 am

    And the wait for today's decisions by the 6th has started..

  • 123. ebohlman  |  October 14, 2014 at 8:07 am

    And ended uneventfully.

  • 124. haydenarwen  |  October 15, 2014 at 4:11 am

    seems like the 6th will never rule!!!!!!!! UGH!!!

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