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Ninth Circuit en banc updates

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Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
In several marriage cases in the Ninth Circuit Court of Appeals, states are asking for an en banc hearing or an initial en banc hearing (as in, instead of a three-judge panel, in the Ninth Circuit it would be 11 judges, in some cases, reviewing Ninth Circuit decisions they have already released, and in others, getting an 11-judge panel initially.)

Here are updates:

– Alaska is asking for an initial en banc hearing.

– In Nevada, the parties were asked to respond to the request for an en banc rehearing in 21 days.

– In Idaho, the same request was made for responses in 21 days.

The request for responses here are common so nothing should be read into them. The Ninth Circuit has repeatedly denied en banc requests in these types of cases, so it doesn’t seem likely that they would grant any here.

Thanks to Equality Case Files for these filings


  • 1. ragefirewolf  |  October 24, 2014 at 8:01 am

    Yay, updates!

  • 2. jcmeiners  |  October 24, 2014 at 8:26 am

    I wish we had an update from the 6th instead…

  • 3. Silvershrimp0  |  October 24, 2014 at 8:33 am

    They are a bit late publishing opinions today. Could it mean…?

  • 4. wes228  |  October 24, 2014 at 8:34 am

    I think it might…

  • 5. A_Jayne  |  October 24, 2014 at 8:41 am

    Fingers crossed.

  • 6. guitaristbl  |  October 24, 2014 at 8:44 am

    They have been late at least 2 other days this week. We will see though.

  • 7. wes228  |  October 24, 2014 at 8:49 am

    Isn't this much later now than even their late days?

  • 8. guitaristbl  |  October 24, 2014 at 8:52 am

    It is I have to admit…It was Monday or Wednesday I think when they issued them at about 11:15 AM EST. Now it's almost 12:00 PM EST…

  • 9. RemC_Chicago  |  October 24, 2014 at 8:58 am

    Is it typical for a day to pass without any opinion?

  • 10. wes228  |  October 24, 2014 at 8:59 am

    Every day this week has had an opinion (at least a couple).

  • 11. wes228  |  October 24, 2014 at 9:05 am

    Nothing from the 6th today!! 🙁

  • 12. guitaristbl  |  October 24, 2014 at 9:05 am

    Productive day today at the 6th, a big number of opinions published, but nothing for ME yet again. They are waiting the elections I think.

  • 13. Silvershrimp0  |  October 24, 2014 at 9:07 am

    I wouldn't be surprised to see the opinion released on November 5.

  • 14. wes228  |  October 24, 2014 at 9:09 am

    Sutton wrote an opinion released today for a case argued on October 8!! And another argued October 10! No fair Sutton!! We were in line before them!

  • 15. Ragavendran  |  October 24, 2014 at 9:27 am

    Maybe his part is already done, and we're waiting on Daughtrey/Cook for a dissent.

  • 16. DeadHead  |  October 24, 2014 at 9:44 am

    Or maybe they are having to write opinions for each of cases they heard.

  • 17. F_Young  |  October 24, 2014 at 10:35 am

    Indeed, I hope there are four separate decisions in the 6th, so as to avoid the fiasco in the ninth circuit where the fact that the cases were joined at the last minute meant that one state that wanted to appeal to SCOTUS or en banc could prevent the mandate from issuing for the other state that did not want to appeal.

  • 18. wes228  |  October 24, 2014 at 11:17 am

    If the 6th rules in our favor, they will not make the mistake of the 9th. They will wait the full 21 days or until en banc is denied before issuing the mandate.

  • 19. guitaristbl  |  October 24, 2014 at 9:33 am

    True but maybe he get to write those kind of petty opinions (ok the immigrantion one is interesting and reminds us he is a typical republican of course…) to get his mind off the equality opinions for a sec. Just trying to find ways out of doing something on them, like the student who does any irrelevant thing in order not to do what he has to do.

  • 20. StraightDave  |  October 24, 2014 at 9:13 am

    Just like SCOTUS, saving the big one for the last. Once that comes out nobody will bother reading any of the others. but yeah, I agree with Nov 5th

  • 21. debater7474  |  October 24, 2014 at 9:12 am

    What's ironic about the whole thing is that Sutton specifically said, at the end of the hearing, "wahtever we do, we're going to do it quickly." This suggests that subsequent developments have led to some significant changes during the opinion writing process.

  • 22. Ragavendran  |  October 24, 2014 at 9:32 am

    Yeah, he said something like "nobody is under the illusion that this is the end of the road – we'll do the best with it and try to do it quickly."

    Well, now, it actually might be the end of the road if only he affirms.

  • 23. ragefirewolf  |  October 24, 2014 at 9:41 am

    Yes, because they have been so swift thus far.

    I'm not bitter AT ALL. At all.

    Okay, I'm a little bitter.

    FINE, I'm terribly bitter and impatient. >,<

    Sorry y'all have to hear me ranting about the 6th all the time, but goddamn.

  • 24. Jen_in_MI  |  October 24, 2014 at 11:15 am

    Hear hear! I am sick to death of waiting on them!! It would be so spineless of them to wait to issue until after the election.

  • 25. RnL2008  |  October 24, 2014 at 11:39 am

    Here's a hug for ya……{{{{{hug}}}}}

  • 26. ragefirewolf  |  October 24, 2014 at 11:49 am

    Thank you, Rose love <3

  • 27. RnL2008  |  October 24, 2014 at 11:54 am

    You are most welcome………I know how frustrating the wait can be……..I remember just after Prop 8 passed and all of these anti-gay marriage folks kept telling my my marriage license wasn't worth anything…..and I kept telling them that Prop 8 had no affect on my marriage and it didn't…….but to know other couples couldn't get married like my wife and I did….just was disturbing……a lot like this waiting that's happening now!!!

    Hugs to you and yours:-)

  • 28. nfernan130  |  October 24, 2014 at 9:19 am

    The only changes that occurred were in favor of same sex marriage, so could the delay mean that Judge Sutton changed his opinion to favor same sex marriage? And also, wouldn't a 6th circuit split actually be a very good thing because if not, the issue of same sex marriage will not reach the Supreme Court until the next term.

  • 29. guitaristbl  |  October 24, 2014 at 9:39 am

    The peculiar truth now is, if we assume, as the majority does here, that SCOTUS wll rulei n favour of ME, that an opinion against ME from the 6th actually helps the movement for ME nationwide more than an opinion in favour of ME, which will drag the process into next year for sure as the 5th, the next circuit likely to rule against ME, won't rule till 2015 most certainly.

    Sutton may know that, and Cook also knows it. If they oppose ME their best shot is to rule IN FAVOUR of ME, drag the issue longer and hope for a change in the composition of SCOTUS. Again that's a long shot because, even with a republican controlled senate, by 2016 Obama will still be president thus he will suggest for SCOTUS a liberal or moderate judge most likely.

  • 30. DeadHead  |  October 24, 2014 at 9:51 am

    That too is a possibility, these "red" judges are shrewd enough to do something like that or delay proceedings thinking that SCOTUS will shift to a more extreme right with newer justices. Republicans and their core base have worked hard over the past decade or so to take control of power on both the state and federal levels.

    "The peculiar truth now is, if we assume, as the majority does here, that SCOTUS wll rulei n favour of ME, that an opinion against ME from the 6th actually helps the movement for ME nationwide more than an opinion in favour of ME, which will drag the process into next year for sure as the 5th, the next circuit likely to rule against ME, won't rule till 2015 most certainly. Sutton may know that, and Cook also knows it. If they oppose ME their best shot is to rule IN FAVOUR of ME, drag the issue longer and hope for a change in the composition of SCOTUS. "

  • 31. nfernan130  |  October 24, 2014 at 10:02 am

    I'm not sure that a 6th circuit win is the best shot at hoping same sex marriage will loose at the Supreme Court because a win from the 6th circuit will put a lot of pressure on the 5th to rule in favor, especially because Judge Sutton (from the 6th) is very conservative and loves Justice Scalia. Also, the Supreme Court will loose credibility if it goes against 5 court of appeals, well 6th because the 1st circuit will also rule in favor of same sex marriage if SCOTUS does not step in. Also, Obama would never appoint a Supreme Court justice that would rule against same sex marriage and he will still be president during the next term of SCOTUS. Therefore I think if the 6th rules in favor, it's because it honestly feels that way, and if it rules against it's great because SCOTUS will take the case this term.

  • 32. StraightDave  |  October 24, 2014 at 10:28 am

    The best way to stop a raging fire is certainly not to throw more wood on it. A positive ruling from the 6th seals the deal, in my view. With SC,KS,MT and AR, that makes 40 states. There is simply no way back from that. The end game may be messy, but it's still in sight. We're only arguing 2015 vs 2016. That's the only question left on the board.

  • 33. Fortguy  |  October 24, 2014 at 11:29 am

    You're forgetting FL. Today is the deadline for Pam Bondi to respond in federal court to plaintiff's motion to waive the 91-day wait and allow marriages to proceed.

  • 34. brandall  |  October 24, 2014 at 1:49 pm

    It is now 4:48 PM in Florida. Ragavendran and I have not been able to locate Judge Hinkle's order for the Defendant's filing date in the Motion to Lift the Stay. I assumed the deadline was 5:00 pm, but this article says it is 11:59 pm tonight.

    Is Bondi waiting for the local early evening news shows to be finished before she files…maybe she forgot…that would be so rich.

  • 35. Elihu_Bystander  |  October 24, 2014 at 9:41 am

    "And also, wouldn't a 6th circuit split actually be a very good…"

    IMHO a favorable ruling is to be preferred. It would immediately add four more states to ME. It might even nudge following CA rulings in favor of ME by example.

  • 36. nfernan130  |  October 24, 2014 at 10:06 am

    I think a loss will be better because that will force SCOTUS to take up the issue and I think everyone is confident that SCOTUS will rule in favor.

  • 37. hopalongcassidy  |  October 24, 2014 at 11:00 am

    Well, I for one was confident Hobby Lobby would lose…

  • 38. nfernan130  |  October 24, 2014 at 11:14 am

    Well the oral arguments of Hobby Lobby were inclined towards a win a for them. And I think this issue is different because Hobby Lobby had not lost while opponents of same sex marriage have lost over 50 times. And Kennedy has been voting against reproductive health since Casey but he has not only voted for gay rights 3 out of 3 times, but he wrote the opinions. I think when Windsor says that DOMA humiliates and demeans, and when 50 judges agree a victory is clear.

  • 39. RnL2008  |  October 24, 2014 at 11:47 am

    SCOTUS has ALREADY showed their hand on this issue in my opinion……they are NOT about to go back an un-ring that bell now or in the future on this issue….and I think the 6th knows that, but is waiting because of what might happen after the election…….and I just want to say that I hope you who have stated that the Senate will be controlled by the Republicans are wrong, because if the Republicans do win control…..all it will do is show me that folks are idiots because it has been the Republicans who have held this Country hostage and it will make the President basically a dead duck!!!

  • 40. nfernan130  |  October 24, 2014 at 1:50 pm

    How do you know that maybe the court did not take any case because both the liberals and the conservatives on the court are unsure of Kennedy. I would be cautious to think that SCOTUS has already shown it's cards. Although Ginsburg does seem confident.

  • 41. guitaristbl  |  October 24, 2014 at 10:07 am

    I am actually with you here, I want a favourable ruling even if it delays things a year. It will severely tip the balance with only 10 states (if the AK Supreme Court rules in favour of ME as well) remaining, a balance SCOTUS may find extremely hard to disturb, much harder than the 16 states banning interracial marriage when Loving was decided.

  • 42. brooklyn11217  |  October 24, 2014 at 11:37 am

    "even if it delays things a year." – It all comes down to big picture vs. small. Imagine you are a gay couple in Alabama or Texas needing marriage equality to obtain various benefits. What is the fastest way for that to be achieved? Right now, if the 6th votes against ME, then SCOTUS can still take the case and decide by June 2015. If there are no circuit splits until after the 5th rules, that delays things until late 2015 or June 2016.

  • 43. RnL2008  |  October 24, 2014 at 1:58 pm

    To nfernan 130…….I believe that SCOTUS would have taken a case if their had been a split, but because there wasn't one, there was NO need for them to get involved and when and IF a split should occur, it will intervene ONLY to overturn the rest of the remaining bans.

    SCOTUS in my opinion has a rhyme and reason for EVERYTHING they do and I believe that by doing what they did, they slowed this Equality Train down a bit…..but in the end, whether it be this year or next year, they will rule in the only way they can…in our favor….otherwise, as has been pointed out….there would be this HUGE mess and SCOTUS wants NONE of that!!!

  • 44. Fledge01  |  October 24, 2014 at 10:35 am

    I don't think SCOTUS will ever take a case because I don't see a split coming. Also, the more states that have issued same sex marriage licenses with no stay in place, the more the law favors marriage equality. Looking for harm is an important legal issue and the undoing of marriages is something any court would be reluctant to do, especially since tax filings snf tax returns will have to be undone, all sorts of money will have to exchange hands, and probate issues re-examined in order to undo these marriages. Now, the legal concepts of property ownership comes into play where the law prefers to maintain ownership in the hands of someone that had a legitimate expectation that they were the true owners of property/money etc. (this is even a stronger legal issue when there is no dispute of ownership at the original transfer of property). Now, to undo these, the courts will have to decide whether these couples need to return the social security death benefits of a spouse, need to re-open probate etc. This creates a situation where the courts, if they rule against us, will have lots of extra work to do to sort out all the property lawsuits that will ensue. Also, a court can't say they were legitimate for a while but starting today they are no longer legitimate. Courts don't have that power. They can only say the marriages happening right now where courts overturned bans were either always legal or always not legal. This is why we do not want to see a split. If there is a split, we want it to come as late as possible to allow more and more of these property rights to develop to help add legal strength to our side.

  • 45. StraightDave  |  October 24, 2014 at 11:13 am

    You really think the 5th is going to make a fair ruling based on the law that "advances homosexuality"? I would fall over. We would have to hand-pick a panel of Obama's 3 appointees.

  • 46. guitaristbl  |  October 24, 2014 at 11:15 am

    And it would still not be certain that it would be unanimous or even a pro equality majority…

  • 47. TonyMinasTirith  |  October 24, 2014 at 11:50 am

    I agree. Also when ME comes over time in smaller doses, it'll be less of an event and less noticed than a one time single decision imposed in late June by 5 or 6 justices in their ivory tower on high. I have the feeling 5 on SCOTUS would prefer to have ME come to the rest of the U.S. via more circuit courts, more circuit and trial judges, more state supreme courts (like IA, NM, NJ and hopefully FL). And in these lower courts there are several republican judges like Posner making very valid arguments for ME or destroying the idiotic anti ME arguments. The more states to gain ME via state supreme courts and trial and circuit courts, more cover the judiciary has including SCOTUS. ScOTUS may have to come on and bring the last 10 or 11 states in line, and I think Kennedy would have no trouble at all with that. Then, a Supreme decision for ME, will be more in line with Loving v. Virginia, or Lawrence v. Texas, setting the last stragglers right. Unfortunately, there are some states, and governors that are going to have to be dragged over to the right side of history kicking and screaming and biting. Let's see if Texas doesn't start holding it's nreath and threaten to secede. But, by the 2016 election of Hillary/Castro or Hillary/Malley, I'm confident we'll have Marriage a Equality from sea to shining sea, over purple Mountains Majesty, over Amber Waves of grain.

  • 48. DACiowan  |  October 24, 2014 at 11:59 am

    I like how you closed with lines written by a woman who was likely in a life long same-sex romantic relationship. Boston marriages then are today, finally simply marriages.

  • 49. Mike_Baltimore  |  October 24, 2014 at 12:50 pm


    His name is O'Malley. He's Irish, and quite proud of his Irish ancestry.

    Personally, though, I think O'Malley will try for Senator Mikulski's Senate seat in 2016, and go for the Presidency at a later date (he's currently 51, so he has a lot of time yet). Mikulski will be 80 in 2016, and although she's been elected to the Senate 5 times, she is not the power-hungry, spotlight demanding, usual Senator (ala cruz of Texas). An indication of how much she spurns the spotlight is that it was only recently (mid-December 2012) that she became Chairman of any Senate Committee (Appropriations), and that only because Senator Inouye died.

    I don't think Mikulski will run again in 2016, but gracefully retire, making the retirement announcement sometime in 2015 (the 2016 primary is scheduled for April 5, unless changed by legislation [unlikely] ). The Democrats in Maryland have a very deep bench, so I expect the primary (if Mikulski retires) to be a very 'spirited' event. (If Cummings and/or Van Hollen and/or Hoyer run, I might have a very difficult time deciding who to vote for. And those possible candidates are not the only possible candidates who might try for the Senate seat in Maryland.).

  • 50. TonyMinasTirith  |  October 24, 2014 at 9:12 pm

    I know. Blame Siri auto correct.

  • 51. Mike_Baltimore  |  October 24, 2014 at 11:48 pm

    One (of several) reasons I do not rely on auto correct. Incorrect spellings, yes, but let me make the corrections after I have checked out the possible incorrect spellings. I might have meant what I wrote, and the spelling might not be in the dictionary Siri (or whatever) is using.

  • 52. Mike_Baltimore  |  October 24, 2014 at 6:07 pm

    The mention of 'property rights' reminds me that very few titles for property East of the Appalachians have been created since the Civil War, or before.

    A few years ago, the City of Alexandria in Virginia discovered it had to create one, as the title to a house in the City of Alexandria had been in the same family for more than 300 years, since well before the Revolutionary War and titles to property in Virginia were rare, and written in a strange manner. I have seen the title for some land of one of my ancestors – paraphrasing 'from the high tide mark on the shore of the Bay to the oak tree to the large rock … ' (descriptive, but not very useful 100, 200, 300 or more years later).

    I don't think Alexandria and the state of Virginia want to go through the whole procedure again.

  • 53. Waxr  |  October 24, 2014 at 11:03 am

    ME has already gone too far in both the states and internationally for the Supreme Court to rule in favor of state bans. Marriage is intertwined with other laws, such as taxes, inheritance, health care, and pensions. To have a couple's marital status change from one state to another would create legal chaos.

    This involves not merely the "full faith and credit" clause in the Constitution, but the international concept of "comity" by which we recognize the judicial actions of other countries, including marriage. They recognize ours marriages, and we recognize theirs.

    Even the most conservative members of the Supreme Court will recognize the importance of keeping some uniformity in our marriage laws.

  • 54. Mike_Baltimore  |  October 24, 2014 at 12:10 pm

    The fly in the ointment, as I see it, is with unanimous Circuit Court of Appeals decisions, and thus the question does not get to SCOTUS, is that yes, there are unanimous rulings from the Courts of Appeals, but for it to be enforced, a case must be presented to the Court of Appeals for a ruling to be enforced. Otherwise, we have situations like the USVI and PR, where all states (one way or another) have ME, but the territories (or whatever you want to call them) in that Circuit don't until a case is brought to the Circuit Court. Or the states argue the ruling doesn't apply to them (ala KS, SC, ID, etc.)

    But I agree with you that a favorable ruling is to be preferred in the 6th (especially), since there is not the complicating factor of non-states involved (and I don't see any of the states fighting tooth and nail [ala KS, SC, ID, etc.] to not be included).

    The advantage with a SCOTUS ruling would be immediate for all states and territories (with maybe PR not included). However, if there is a SCOTUS ruling, then it almost guarantees that ALL actions (Federal and state) would quickly grind to a halt until SCOTUS rules (in June 2015 or 2016).

  • 55. TonyMinasTirith  |  October 24, 2014 at 9:22 pm

    I'd like to see the sixth affirm the four courts/states below, then have the
    5th's eroneous ruling appealed, cert granted this December and have SCoTUS overturn the 5th ushering in Nationwide ME by May/June next year. Maybe by then the FL Supremes will have approved ME and the 11th circuit as well. That way we have both the breadth of 4 or 5 circuit rulings, and the depth of a SCOTUS ruling of 5-4 or even 6-3.

  • 56. scream4ever  |  October 24, 2014 at 10:50 pm

    Agreed. There is also a good chance of the AR state supreme court ruling in our favor in addition to a favorable ruling out of Missouri going un-appealed.

  • 57. Mike_Baltimore  |  October 24, 2014 at 11:35 pm

    I too would like the 6CA to rule for ME, but as soon as the 5CA holds a hearing (and maybe weeks before), let alone makes a ruling, I think ALL cases (whether in Federal or state court) will be stayed until SCOTUS rules.

    Why would any state court take a chance that anything they decide might be overruled by SCOTUS in a matter of a few months (not that I'm predicting what will happen in a state court [especially AR or MO, etc.] )? And why would they willingly use court time and other resources if their decision will be decided by SCOTUS in the same manner the state courts will decide?

  • 58. jdw_karasu  |  October 24, 2014 at 11:23 am

    "And also, wouldn't a 6th circuit split actually be a very good thing because if not, the issue of same sex marriage will not reach the Supreme Court until the next term."


    A 2-1 "win" with Sutton on our side is a positive thing. The more judges like Sutton and Posner that we have on our side, the more the 5th and 8th get squeezed and isolated. The would make the score this prior to the 5th & 8th taking their bite:

    5 CA Wins (4th, 6th, 7th, 9th & 10th)
    1 CA Future Lock (11th)
    2 SCOTUS Wins (Windsor + Cert Denials)

    The 5th and 8th could blow that off, and not care that they'll be overturned up at SCOTUS. But it's possible that if the 6th sides with us, we might shake out one of those two with either a lucky draw on a panel to get 2-1 Dems, or the combo of Posner+Sutton+Kennedy swing a few GOP over the fence in an en banc.

    Running the table are good results.

  • 59. nfernan130  |  October 24, 2014 at 1:48 pm

    I doubt that no circuit will rule against same sex marriage therefore I think the 6th circuit ruling for same sex marriage will just delay nationwide same sex marriage by almost two years. Since the court won't decide a case until the end of the next term.

  • 60. haydenarwen  |  October 26, 2014 at 3:58 am

    In MI we still have hope that a New Governor and/or atty general will bring ME sooner than a 6CA ruling

  • 61. Margo Schulter  |  October 24, 2014 at 10:04 am

    My intuition, as been argued before by others here, is that a favorable Sixth Circuit opinion adding Michigan, Ohio, Kentucky, and Tennessee to the roll call for marriage equality, and bringing us to 39 States plus D.C., would give SCOTUS a basis for subsequently granting certiorari in response to a circuit split (e.g. the Fifth Circuit) and “ratifying a fait accompli.”

    That might be to Justice Ginsburg’s taste, as well as Justice Kennedy’s. Having the Sixth Circuit’s domain already within the marriage equality orbit if/when the circuit split occurs — and maybe the Eleventh Circuit domain also — would make possible a yet softer and more “gradualist” judicial landing for SCOTUS.

    And it’s possible that Chief Justice Roberts, for the sake of his legacy and also out of thought for the well-being of SCOTUS as an institution, might make it a 6-3 decision, maybe in the process exerting his influence to keep the decision narrow (e.g. “rational basis with a bite” or a ruling like those of the Tenth and Fourth Circuits focusing on the fundamental right of marriage under the Due Process Clause but avoiding larger issues relating to sexual orientation as a possible suspect or quasi-suspect class requiring intermediate equal protection scrutiny).

  • 62. guitaristbl  |  October 24, 2014 at 10:11 am

    What ?

    “Because this case seeks to decide the core question of two people’s marital status, it belongs in state court, rather than in federal court."

    Same-sex marriage cases have proceeded through federal courts in other states at “an unprecedented pace,” Wilson wrote. “But the legal proceedings are not over. The United States Supreme Court has not weighed in.”

    So let me get this right. Federal courts have no right to decide the case because marriage is a state issue (I suppose Loving is not enforced in South Carolina..) but federal courts have decided the issue on a huge number of cases and the ultimate court of the country on federal issues has not weighed in but it will, despite what he said before that SCOTUS has no authority to weigh in supposedly ?

    *sigh* (no strength to comment further on stupidity..)

    Childs needs to grant summary judgement in favour of plaintiffs soon, this is ridiculous.

  • 63. StraightDave  |  October 24, 2014 at 10:35 am

    They apparently don't understand that legal proceedings in the 4th circuit are indeed over. And SCOTUS has indeed weighed in by saying the 4th's ruling is final.

    And that is why SC will lose. Incoherent morons. Kansas has some stiff competition here.

  • 64. jm64tx  |  October 24, 2014 at 6:44 pm

    Correct … but the 4th circuit ruling is not binding precedent in SC state court. As was explained in a SCOTUS opinion just last year (Johnson v. Williams):

    "But the views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law."

    So SCOTUS itself has said that state supreme court rulings can differ from federal appellate court rulings, and the federal appellate courts do not bind state courts at all. The only court that can overrule a state supreme court is SCOTUS.

  • 65. Zack12  |  October 24, 2014 at 8:07 pm

    You are right about that. I'm thinking that SC is hoping their State Supreme Court will weigh in first and rule that their ban is still valid.
    If that happens, the only option will be SCOTUS.

  • 66. guitaristbl  |  October 25, 2014 at 5:54 am

    Why ? South Carolina Supreme Court can do whatever it want, the federal district court will strike down the ban.

  • 67. sfbob  |  October 25, 2014 at 9:14 am

    Let's assume that the SC Supreme Court rules against us. Meanwhile the Fourth Circuit has ruled in our favor. There is then a clear an obvious conflict since the federal courts have in effect ordered the state to issue us marriage licenses while the state court has ordered the state NOT to issue us licenses. This is the sort of conflict that SCOTUS would not be able to duck.

  • 68. FredDorner  |  October 25, 2014 at 9:22 am

    Federal supremacy would mean that the federal district court ruling trumps the state supreme court. There'd be no reason for SCOTUS to hear any appeal.

  • 69. sfbob  |  October 25, 2014 at 10:02 am

    It's reasonable that the plaintiffs would return to the Fourth Circuit and that the Fourth Circuit would rule in their favor on the basis of the Supremacy Clause. But I can't see the state giving up so easily; in fact I can well imagine them to refusing to issue licenses to gay or lesbian couples even in the face of the Fourth Circuit ruling against them and enjoining them from enforcing the state ban.

  • 70. wes228  |  October 25, 2014 at 10:25 am

    If they were to ignore a federal court order against them, they would be in contempt of court. Plain and simple.

  • 71. sfbob  |  October 25, 2014 at 12:02 pm

    Based on the reasoning in their current filing I wouldn't put it past them to claim otherwise.

  • 72. brandall  |  October 25, 2014 at 12:25 pm

    And then we would have to call in the National Guard to escort same-sex couples past the local police barricade and protestors to go up the steps of the local courthouse to get their marriage certificates. It won't be the first time.

  • 73. BenG1980  |  October 25, 2014 at 3:05 pm

    Of course, calling in the National Guard would require the president to federalize them under Title 10, so the first step might be to dispatch U.S. Marshals.

  • 74. sfbob  |  October 25, 2014 at 12:22 pm

    A poster at Daily Kos has noted that the state may well have made a very foolish move:

    "While it is unlikely to be the deciding factor, it is interesting to note that they are falling afoul of the principal of estoppal by pleading, which says that you cannot take one position in one legal action and a conflicting one elsewhere."

    He's saying that South Carolina has taken to opposing position in arguments in the two pending federal cases. Which they may not do.

  • 75. hopalongcassidy  |  October 25, 2014 at 12:42 pm

    He may have a useful point…which would have flown better had he spelled "estoppel" correctly and used "principle" instead of "principal"…

  • 76. guitaristbl  |  October 25, 2014 at 1:58 pm

    I think we are getting off the point here. South Caroline Supreme Court said that under the CURRENT SC consititution, clerks cannot issue licenses thus issued a stay. They did not say that they will rulen on the merits at any point. As soon as the federal district judge rules the ban unconstitutional, they will lift the stay as well under the new state law. I never heard of SCOTUS solving conficts between federal court and state court because as Fred said below, the federal ruling trumps the state one (which btw does not exist – the South Carolina SC does not have a ME case before it right now, there isn't even a case in state court).
    So I do not see any conflict here. State SC simply said that under CURRENT law no licenses can be issued. As soon as the ban is struck down, they have to lift that stay.

  • 77. jm64tx  |  October 25, 2014 at 12:53 pm

    No thats incorrect. If the SC Supreme Court rules the ban constitutional under the FEDERAL constitution, then the district court cannot strike the ban down, as to those parties who were involved in the state court litigation.

    The federal courts are not courts of appeal for the state courts.

  • 78. guitaristbl  |  October 25, 2014 at 2:01 pm

    Yes but as I said the SC Supreme Court has NO ME case before it. it just issued a stay to the issuance of licenses till the pending federal case is resolved. It has nothing to rule on. Plus even if it did, federal court trumps state court I think. I know that federal courts are not courts of appeal for state courts, but currently cases are pending only in federal courts, not state courts, which could not trump law as settled by a federal court based on the federal constitution anyway.

  • 79. Mike_Baltimore  |  October 25, 2014 at 11:24 am

    Yes, the only court that can overrule a state's highest court is SCOTUS, but violation of the Federal US Constitution trumps the state constitution IN EVERY CASE, and thus every decision made by a state court using the state constitution as the 'reason' for its ruling.

    Or did someone forget to read Article VI of the US Constitution?

    SC tried secession, and that didn't work. Secession cannot be used as a valid reason any more, because of an 1869 SCOTUS ruling: 'Texas v White'. In the majority decision, Chief Justice Salmon P. Chase wrote 'the court rejected the notion that Texas had merely created a compact with the other states; rather, he said it had in fact incorporated itself into an already existing indissoluble political body.' I believe that 1869 decision still holds as SCOTUS precedent, and applies as much to SC as to TX.

  • 80. jm64tx  |  October 25, 2014 at 1:01 pm

    Right, but when a state court rules that the ban does not violate the federal constitution, a party cant go into federal court and obtain a ruling that it does.

  • 81. MJ4  |  October 25, 2014 at 1:24 pm

    At that point, the U.S. Supreme Court would have to step in to resolve the issue, assuming the state court and federal court are split. You can appeal a state Supreme Court to the U.S. Supreme Court, though they don't accept many for review.

  • 82. guitaristbl  |  October 25, 2014 at 2:03 pm

    I don't know that, who said that ? What interpretation of the federal constitution a state SC chooses, does not work as binding for a federal district court. A federal district court is only bound by the federal court of appeals for that circuit.

    Anyway we are discussing nonsense right now, there is no ME case in state court in South Carolina, let alone one at the state Supreme Court.

  • 83. BenG1980  |  October 25, 2014 at 3:10 pm

    jm64tx is correct, and the legal principle to which he refers is "collateral estoppel." It's important to note that it only applies to the specific parties of the first case.

  • 84. dorothyrothchild  |  October 24, 2014 at 11:21 am

    How would it even work if SCOTUS later ruled against SSM, especially in the states where it has been around the longest? Would MA couples have to go back and re-file 10 years of joint tax returns? Would SSM states be required to reissue adoption papers to remove one parent? Aside from the abject cruelty of such a ruling, I'm just trying to wrap my head around the massive amounts of paperwork and confusion it would create. I don't see how the Supreme Court could justify forcing such a logistical nightmare on the 30+ states that have already implemented marriage equality.

  • 85. guitaristbl  |  October 24, 2014 at 12:04 pm

    I don't think a decision against ME will affect any state that adopted ME either through legislation, referendum or state court decision. Thus 17 states are safe. One could argue that Oregon and Pennsylvania are safe as well but a future AG or governor may decide to try to bring the ban back based on a possible SCOTUS decision. But anyone up to New Mexico and Illinois (in chronological order) is safe.

  • 86. Fledge01  |  October 24, 2014 at 12:07 pm

    If SCOTUS ruled against SSM, it would only impact those states that have had their bans overturned by a court in which those rulings were based on a premise that SCOTUS specifically said was a false premise. (ie: ban overturned because it violates the U.S. constitution's equal protection clause.)

    States that have had their bans overturned because it violated their state constitutions would not be affected because SCOTUS would not have head a that specific case determining the meaning of that states individual constitution. States where voters in a ballet or through their state representatives changed their state law to allow SSM would also not be affected by a SCOTUS ruling.

  • 87. wes228  |  October 24, 2014 at 1:19 pm

    This isn't true at all. If SCOTUS rules a ban on same-sex marriage is unconstitutional, then that applies to the whole country because it is binding on every court in the country. So while nothing would change in the states that had already legalized it (through state court ruling, legislative enactment, or popular vote), it means that they couldn't undo it.

  • 88. Fledge01  |  October 24, 2014 at 1:44 pm

    If SCOTUS rules against SSM that would be saying that a ban is constitutional… which is what my response addresses. I was pointing out that just because SCOTUS might say a ban is constitutional, it wouldn't necessarily require or allow states to re-enact their bans. Your scenario discusses a potential ruling by SCOTUS that says a ban is unconstitutional, in which it would apply to all states.

  • 89. robbyinflorida  |  October 24, 2014 at 12:24 pm

    Right. "The train has left the station."

  • 90. Ragavendran  |  October 24, 2014 at 12:32 pm

    This is why it is important to continue efforts to repeal state bans (statutory and constitutional) even though they have ME right now. If a future Supreme Court overturns the lower courts, it would be permissible for the bans that are still on the books to be enforced again (if they were struck down by any court (state or federal) based on the US Constitution using a rationale that the Supreme Court rejects). I don't think the marriages already performed would be nullified (and that could be a separate issue to reach the Supreme Court), but new marriages could be barred.

  • 91. Eric  |  October 24, 2014 at 1:09 pm

    A SCOTUS ruling against SSM would not be retroactive. A state that sought to invalidate existing marriages, would have some serious takings issues, especially in community property states.

  • 92. hopalongcassidy  |  October 24, 2014 at 1:47 pm

    Yes, which issues would have roughly zero chance of being nullified by the high court.

  • 93. Rik_SD  |  October 24, 2014 at 3:08 pm

    I've wondered this myself. If they rule the bans are consitutional what would happen in those states? The denial of cert in the 4th and 10th means that those cases are definitely over, right? So somebody would have to sue to start a new case at that point right? And who would even have standing to do so? I feel like even that ruling would not change the states that have it not and leave only new challenges vulnerable (creating quite a messy patchwork of laws). I can't imagine how that could work

  • 94. bdlucey  |  October 25, 2014 at 9:50 am

    The Supreme Court of Massachusetts ruled that under the Constitution of the Commonwealth of Massachusetts, the couples rights were being denied. It had nothing to do with the Federal Constitution, so even if SCOTUS overturned every federal court for every reason given so far, it would not effect any of the states that passed Marriage Equality legislatively or through their own state court system.

  • 95. DACiowan  |  October 24, 2014 at 12:48 pm

    The Kansas couples have until Monday the 27th to file their additional brief: ECF So we might still get Kansas early next week.

  • 96. samg68  |  October 24, 2014 at 1:15 pm

    Yes, based on the developments in the Kansas case it looks like Crabtree might be looking to rule based on briefs alone.

  • 97. MGinPA  |  October 25, 2014 at 6:01 pm

    I'm gonna guess that he"ll wait till after the elections, the same with South Carolina and the 6th Circuit.

  • 98. brandall  |  October 24, 2014 at 1:51 pm

    Florida: Bondi's Opposition to Lifting the Stay

    "This Court found that Florida’s laws violate the plaintiffs’ constitutional rights— the central issue on appeal. It is true that any denial of a constitutional right is a real injury, but that also was true when the Court decided, on balance in this unique case, to stay the injunction. There is no need for immediate relief now that alters that balance of equities away from entering the stay and toward lifting the stay. In fact, there is no more urgency for any of the plaintiffs now than existed when the Court entered the stay in August, or than when the plaintiffs filed suit earlier this year."

    Said another way, please don't do anything until after Tuesday, November 2nd.

  • 99. brandall  |  October 24, 2014 at 2:01 pm

    More begging, especially not to do anything in the next 7 days:

    "The Grimsley plaintiffs have suggested that they would not oppose a seven-day period for this further review, (DE 87 at 4), and the Brenner plaintiffs adopt that view, (DE 88 at 4 n.1); but the Enjoined Officials respectfully believe a longer period is appropriate. There is no need to burden the Eleventh Circuit by presenting it with an emergency filing demanding resolution within seven days. The Enjoined Officials respectfully request that if this Court lifts the stay, it provide not less than 45 days for further review."

    Burden the 11th Circuit? Just after you've stated this is a case about violating constitutional rights. OK, does that mean if the stay is lifted, you will also not "burden" the 11th and will ask for 45 days to file an appeal with the AC?

    I know she is not the only AG currently playing this stall "at any cost" game, but with 2 divorces and living in sin in a 3rd relationship, she is quite the hypocrite.

  • 100. RemC_Chicago  |  October 24, 2014 at 6:44 pm

    Oh, didn't you know. In Webster's, under "hypocrite," there's a picture of Bondi. Would love to start a campaign like Savage did on Santorum, so that anytime you google the definition, that's what comes up. Bondi. But I don't know how.

  • 101. RLsfba  |  October 24, 2014 at 2:02 pm

    I'm a noodge – election is Tuesday Nov. 4th. Get everyone out to vote.

  • 102. brandall  |  October 24, 2014 at 2:05 pm

    Argle-Bargle….thanks for catching.

  • 103. brandall  |  October 24, 2014 at 2:16 pm

    The core part of Bondi's reasoning for the stay to remain in place:

    "The plaintiffs point out that several circuits have agreed with their arguments. True, but two circuits issued divided opinions, whose lengthy dissents showed, at the least, a serious legal question. And the Fifth and Sixth Circuits are still considering the issue"

    And SCOTUS refused cert on those cases which implies it did not find anything useful in the dissenting opinions…so what if the 5th and 6th are still considering their cases? You said you wanted SCOTUS to rule on this…they didn't. Do you now want to wait for all of the AC's to issue a ruling?

    Stall, stall, stall.

  • 104. Jen_in_MI  |  October 24, 2014 at 5:41 pm

    Who expects anything different from Multiple Marriage Bondi? Her rallying cry is "limitless marriage rights for me, but none for thee!" She's just a braying ass, honking in the wind.

  • 105. RemC_Chicago  |  October 25, 2014 at 7:35 am

    A braying ass whose honking hurts others b

  • 106. Ryan K (a.k.a. KELL)  |  October 25, 2014 at 8:01 am

    And sadly for the state I live in (even though I'll be early voting against her), she is likely headed for reelection. Wonder what happens if Crist is governor and Bondi is AG… Things could get tense! Although the governor is no longer a named defendant, so I guess the decision remains all hers unfortunately.

  • 107. Ragavendran  |  October 24, 2014 at 2:55 pm

    The Florida Third District Court of Appeal appears to have finally awoken from its deep slumber like Smaug in Erebor. They are acknowledging Bondi's change of tune that now supports the Plaintiffs' suggestion to "pass-through" the appeal to the Florida Supreme Court. In a miscellaneous order issued today, they declare, "upon consideration of the State of Florida's supplemental response, the suggestion will continue to be carried with the case."

    In other words: "hold your horses. be patient. we haven't forgotten about this. we're still working on it. and so on. and so forth."

  • 108. brandall  |  October 24, 2014 at 3:15 pm

    They are stalling. They've had this case since 7/28/14. They actively process and decide on a whole bunch of motions except the main thing being asked for….pass it through.

    Pareto, 3rd Circuit:

  • 109. brandall  |  October 26, 2014 at 3:35 pm

    I did some follow-up on Shaw v. Shaw about the couple that married in MA, but the spouse disappeared, cannot be located, and the other spouse is trying to obtain a divorce in FL. The Notice of Appeal was filed 5/16/14. Like Paretto, this case is trudging along at a snails pace. Docket: Case ID: 2D-14-2384

    The Plaintiff filed for the same "pass-through" provision in the Florida Second District Court of Appeal that you noted above in Paretto. In Shaw, there was an en banc review with a split 10-3 decision (8/27/14) in favor of the passing the case through to the Florida Supreme Court. The three-judge dissenting opinion closed with:

    "I am confident that this court can ably consider this appeal and reach a proper resolution. Our decision will resolve the issue for all trial courts in Florida unless another district court disagrees with us. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). This issue [out of state marriage recognition], unlike the constitutionality of the ban on same sex marriage, may never require the attention of the supreme court. If we believe the case has some immediacy, we should not grant extensions in this case but should expedite the process. Indeed, we could convert the case to a petition for writ of mandamus, which would allow rapid determination of whether the circuit court was legally required to give credit to the out-of-state marriage in this dissolution proceeding.'

    The Florida Supreme Court declined (9/5/14) to take the case citing the 2nd District AC's dissenting opinion.

    According to the docket, oral arguments were requested 9/24/14, but have not been scheduled.

    Stall, stall, stall.

  • 110. brandall  |  October 26, 2014 at 4:22 pm

    AP started reporting this morning the 3rd FL DC will not pass through the case. I'm not sure where they are getting this from. This is no docket update other than your quote above about "consideration…suggestion" from the Miscellaneous Order. AP has been wrong before, but here is what they are saying:

  • 111. Ragavendran  |  October 26, 2014 at 5:25 pm

    Their reporter is incompetent, clearly misinterpreting the phrase "will continue to be carried with the case" as an indication that the court intends to continue handling the proceedings in this case instead of passing through to the Supreme Court.

    My take on the delay on their decision about passing through, setting aside the strategic possibility concerning the upcoming elections, is that a vote has been taken, but the losing side (like in the Second Court) is penning a dissent before the decision is released.

  • 112. Rick55845  |  October 26, 2014 at 6:08 pm

    "upon consideration of the State of Florida's supplemental response, the suggestion will continue to be carried with the case."

    Perhaps I'm missing some illuminating context, but that statement is unintelligible.

    “Take some more tea," the March Hare said to Alice, very earnestly.
    "I've had nothing yet," Alice replied in an offended tone, "so I can't take more."
    "You mean you can't take less," said the Hatter: "it's very easy to take more than nothing."
    "Nobody asked your opinion," said Alice.”
    ― Lewis Carroll, Alice in Wonderland

  • 113. Ragavendran  |  October 26, 2014 at 7:04 pm

    Ha ha… I laughed out loud at your Alice in Wonderland quote! However, the Third District Court of Appeal has previously mentioned the suggestion to pass-through the case. On 7/28, the suggestion was filed. The court requested a response from Bondi by 8/7, which she filed (opposing the pass-through certification) on 8/7. The court then requested an optional reply by 8/23, which was filed on 8/21. The court then proclaimed, on 8/28:

    "The suggestions for Rule 9.125 certification of appeal to the Florida Supreme Court are carried with the case."

    Bondi then changed tune, filing a supplemental response on 10/13 asking the court to certify the appeal to pass-through to the Florida Supreme Court. The court acknowledged this explicitly on 10/24 when it said:

    "Upon consideration of the State of Florida's supplemental response, the suggestion will continue to be carried with the case."

  • 114. ragefirewolf  |  October 26, 2014 at 7:48 pm

    So what does that mean?!

  • 115. franklinsewell  |  October 24, 2014 at 3:12 pm

    NEVADA: One "Real-Party" defendant, Washoe County Clerk Alan Glover, has filed his brief responding to Defendant-Intervenor's Motion for Rehearing En Banc.

    Oh man… it is: "I take no position on this matter."

  • 116. Ragavendran  |  October 24, 2014 at 3:49 pm

    My heart almost stopped when I got an automated email (the second one today) at around 5:30pm ET from the Sixth Circuit that could only mean that one or more additional opinions had been released. I always receive only one of these per day, in the morning, so this second email threw me off completely. I gulped and read the email. Turned out to be no biggie – one more last-minute opinion was released today, and it wasn't an ME opinion. Sheesh. Way to give me a near-heart attack for nothing!

  • 117. Ragavendran  |  October 24, 2014 at 4:05 pm

    So, I wonder why the Arkansas State Defendants (AG's Office) haven't objected to having both the federal and state hearings on the same day (Nov. 20). Is that not a logistical issue for them? Or will different attorneys from the AG's office be representing the State in these two cases?

  • 118. Fortguy  |  October 24, 2014 at 4:24 pm

    Don't give them any ideas.

  • 119. StraightDave  |  October 24, 2014 at 5:08 pm

    I think it shows they are not paying *serious* attention to them. You send a junior atty when you either don't care what happens or you consider it a lost cause. Most states would send their top dog to both.

  • 120. Ragavendran  |  October 24, 2014 at 5:40 pm

    Technically, they can. It could be a squeeze. Both courts are in Little Rock, just a mile apart, and one hearing is in the morning (9am) and the other in the afternoon (1:30pm). Depending on whether the Arkansas Supreme Court grants the motion to expand the time for oral argument, they could just grab a Subway sandwich for lunch. If their top dog is anything like Monte (stick and balls) Stewart, we can surely expect them to mix up the Plaintiffs in the two cases.

  • 121. RemC_Chicago  |  October 24, 2014 at 6:42 pm

    Stick-And-Balls Stewart! Love it.

  • 122. Christian0811  |  October 24, 2014 at 5:30 pm

    I've been hearing nasty tidings about the future of congress I this year, is it true that the Dems may lose congress entirely? Is there any chance for a victory over the Republicans?

  • 123. DACiowan  |  October 24, 2014 at 5:42 pm

    Right now Real Clear Politics has a 51-48 Republican Senate with one independent (Kansas) who will caucus with the winning party (so 52-48 R lead). If Braley in Iowa can pull out the win though that puts it at 50-49 and Biden would be the tiebreaker for the Democrats with Kansas joining the Dems (so 51-49 D).

    So right now, the Democrats need to catch up in one race somewhere to hold the Senate.

  • 124. Zack12  |  October 24, 2014 at 5:49 pm

    Braley has hurt himself by putting his foot in his mouth again and again.
    Sad to say but Nov 4th is going to be an ugly night for us, let's hope 52-48 is the count for the night.
    That way we can easily take the Senate back in 2016.

  • 125. DACiowan  |  October 24, 2014 at 5:52 pm

    I'm putting in my vote for Braley; note in my second scenario I meant a 51-50 Dem lead counting Biden's vote. Basically because of Kansas you'll see a swing from a 52-49 Rep vote to a 51-50 Dem lead if one race flips Democratic.

  • 126. Christian0811  |  October 24, 2014 at 10:16 pm

    Won't matter who controls the senate until one side gets 60 votes, although maintaining control would help keep moral up.

    My guess? We're going to be in political gridlock for the foreseeable future.

  • 127. Ryan K (a.k.a. KELL)  |  October 25, 2014 at 8:05 am

    I don't necessarily agree with that statement. The Majority leader controls the agenda, and chairpersons of committees are controlled by the majority, along with the bill writing. Furthermore getting many nominations and non SCOTUS judicial appointments now without filibuster is huge when you control the chamber. It will be a big blow to Obama and Democrats to lose the Senate and have a GOP controlled Congress in both houses. (Disclaimer – Laws wise, shit still won't get done either way.).

  • 128. BenG1980  |  October 25, 2014 at 3:19 pm

    Ryan, I can tell you from first-hand experience, you're exactly right!

  • 129. bdlucey  |  October 25, 2014 at 10:00 am

    It will be a lot more difficult for Obama to get judicial appointments through if the Democrats are the minority party until the end of his term. If Ruth Bader Ginsburg were to step down, I don't see a replacement Justice as liberal as her getting through a Republican senate.

  • 130. Christian0811  |  October 24, 2014 at 10:07 pm

    Is there any explanation as to why the senate will be so closely tied? I mean, I know this isn't a smart country and all (Bush…twice….), but seriously if the House is so unpopular why would more republicans get elected to the senate? I understand how the House might remain controlled, with republicans in state legislatures gerrymandering the hell out of their states (which will likely never, ever be fixed), but the senate is directly elected. Why wouldn't it become bluer? Or at least stay the same?

  • 131. Zack12  |  October 25, 2014 at 4:55 am

    Because Obama is also unpopular and many Democrats who were swept in on his coattails in 08 are now up for reelection in states they propbably wouldn't have won otherwise like Alaska and South Dakota.

  • 132. Ryan K (a.k.a. KELL)  |  October 25, 2014 at 8:11 am

    Just look at the 2012 presidential election – I think Obama got 26 states (DC counts for jack in the Senate) to Romney's 24. The Senate is anything is disproportional because each state gets equal status. All of those Democrats in Cali get 2, whereas the same least populous state of Wyoming (or Montana I can't remember) gets 2. If anything, the House if. It gerrymandered should give us a better reflection of the country, however the GOP state legislatures after the 2010 midterms and census stuffed all the liberals into as few districts as possible and got more GOP seats. 2020 as a presidential election year needs to GOTV for Democrats and use the census to get the House back. Meanwhile in the 2014 races and the Senate, we are likely to be the minority party by a seat or two, but the GOP fortunes change in 2016 given the map they have to defend and a presidential election year.

  • 133. Dr. Z  |  October 25, 2014 at 7:22 pm

    Well obviously it wouldn't be so good for us if the Democrats lost the Senate, but it wouldn't be the end of the world. If our community could survive the Republicans controlling the House, Senate, AND White House under Reagan (during the AIDS epidemic to boot) as well as the Reign of Dubya, we can survive this.

  • 134. Dr. Z  |  October 24, 2014 at 8:52 pm

    Great editorial about the Unruhs of Kansas, who are enjoying their 15 minutes of fame.

  • 135. Dr. Z  |  October 24, 2014 at 8:55 pm

    Whoopsie, time's up.

  • 136. davepCA  |  October 25, 2014 at 12:38 am


  • 137. Steve84  |  October 25, 2014 at 8:08 am

    Allowing them to appear in court would have been great comedy though.

  • 138. sfbob  |  October 25, 2014 at 9:07 am

    They've been offered a chance to file an amicus brief. I'm guessing the state is hoping they won't do that since it will bring out the hate and insanity of their own more cautiously worded arguments.

  • 139. RnL2008  |  October 25, 2014 at 9:29 am

    Their 15 minutes of fame is gone…..Judge Crabtree denied them their request……….frankly, I'm surprised that they even tried this stunt!!!

    To say that if a Same-Sex couple was granted their fundamental right to marry, that their marriage would somehow seem less and that's just a really poor argument to even attempt in my opinion!!!

  • 140. Jaesun100  |  October 25, 2014 at 7:42 am

  • 141. Jaesun100  |  October 25, 2014 at 7:51 am…. They had one no vote !!!!! Disappointed in this! as this is the County in NC I grew up in…..! I don't know what this means but my guess is not much?

  • 142. RQO  |  October 25, 2014 at 9:32 am

    Wrong post, maybe, but about those Famous Potatoes. Do not underestimate the ACLU's non reaction to "the Hitching Post". I saw A PHOTO). The "Hitching Post" – seriously??? Enter your SSN's into the clown face and proceed to the first window for credit card and the 2nd window for pronounced married? I spent 20 years in WA and learned you just ignore the Hitler youth Northern Idaho [email protected]@ as much as Southern Idaho Mormon "revelations".
    The point is – this is what the ADF is down to in the way of clients. Sure this case "might" make it to SCOTUS, but with lot's of sniggers. When does ADF realize they have "progressed" from serious clients, to dubious, to pathetic?

  • 143. Dr. Z  |  October 25, 2014 at 7:26 pm

    Well Coeur d'Alene is the heart of Aryan Nations country. The city itself however is charming and (by Idaho standards) pretty gay friendly.

  • 144. Ragavendran  |  October 25, 2014 at 10:28 am

    Why is this announcement necessary, again? As if the US has a choice? Once a state legalizes it, doesn't the federal government required to recognize it, according to Windsor?

  • 145. hopalongcassidy  |  October 25, 2014 at 12:55 pm

    It's useful as a gloating point. 😀

  • 146. davepCA  |  October 25, 2014 at 1:36 pm

    Yeah, it's not really any kind of new 'news' but it was nice to see it splashed across the front page Yahoo.

  • 147. jpmassar  |  October 25, 2014 at 10:29 am

    (Reuters) – U.S. Attorney General Eric Holder said on Saturday the U.S. government will recognize same-sex marriages in six more states, bringing to 32 the number of states where couples in gay unions qualify for federal benefits.

    Alaska, Arizona, Idaho, North Carolina, West Virginia and Wyoming were added to the list on Saturday, a week after Holder made a similar announcement concerning seven other states.

  • 148. Ragavendran  |  October 25, 2014 at 10:49 am

    Again, I ask, why is this announcement necessary? Does the US have a choice? Once a state legalizes it, doesn't the federal government required to recognize marriages performed there instantly per Windsor? Don't take me wrong – I do appreciate the gesture, but this should go without saying. (The exception is the part of the announcement that says that marriages performed in the interim post-trial-court-decision, pre-stay period are recognized, because the validity of those marriages under state law could still be murky.)

  • 149. FredDorner  |  October 25, 2014 at 11:19 am

    Given the issue of state of residence vs state of celebration of a marriage and how that impacts certain federal laws, Holder is simply alerting the public to the fact that the feds now recognize those states as marriage equality states for Social Security and other programs.

    Note that the federal government itself already recognized those marriages as valid regardless of where the couple lived, but certain laws were unfortunately written based on the recognition in the state of residence (due to the history of the anti-miscegenation laws in the confederate states). Once all 50 states have marriage equality in a few months that distinction will be moot.

  • 150. Ragavendran  |  October 25, 2014 at 11:48 am

    I still don't understand why the announcement was necessary. If it's just an alert/clarification, that's okay and I understand and appreciate that it is for the public benefit, but the US should have started recognizing a marriage performed in WY as soon as it was performed and not starting today when the announcement was made. That's all I'm cribbing about.

  • 151. FredDorner  |  October 25, 2014 at 12:10 pm

    I imagine it's just to delineate at what point the feds recognize those states of residence from the standpoint of certain federal benefits. It's as much an administrative order as it is a legal determination. And remember the status quo before the announcement is that the feds weren't granting those benefits due to how those laws were written.

    A case in point is Utah vs SS benefits, where the local SS office was refusing to grant those benefits and the ACLU was getting ready to file another lawsuit until recently when those SS benefits were formally made available.

  • 152. Sagesse  |  October 26, 2014 at 8:15 am

    I also read it as directed at any state that might be tempted to follow Utah's example.

    Plus, it's a political statement. The Obama administration and the Justice Department support the constitutional right to marriage equality. The announcement reinforces the message to state officials, legislators and courts in states where the legal deliberations continue. No harm in repeating it, or getting the numbers into a headline or 12.

  • 153. StraightDave  |  October 26, 2014 at 8:24 am

    Routine announcements like this help create an aura of inevitability. We're just marching thru the states and here's another bunch down.
    The lack of public reaction, sometimes not even by the right fringe, adds to the aura of acceptability for those still on the fence.
    If nothing else, it's good publicity and keeps the momentum going and helps us skip over the occasional bump in the road like LA.That was such a little nit it had no effect on anything, except perhaps that PR judge.

  • 154. ebohlman  |  October 25, 2014 at 11:28 pm

    Strictly speaking, the announcement wasn't necessary since the DOJ had no choice in the matter, but I can think of at least two reasons, only one of which is cynical:

    1) Most of the general public isn't as familiar with how the law works as we are.

    2) It creates the (false) impression that there was some sort of accomplishment on the part of the Obama administration.

    The non-cynical explanation is fairly easy to prove…

  • 155. RQO  |  October 26, 2014 at 6:03 am

    Most of the public AND government workers, some of whom will be obstructionist without clear orders. This is mostly new in many states. Clarifying things in advance of individuals having bureaucratic problems is an excellent idea. EG: Though I know darn well my out of state marriage is now valid in Colorado, I have yet to get an affirmative statement of that out of the AG's or Governor's office

  • 156. JayJonson  |  October 27, 2014 at 6:36 am

    It is not a false impression that this is an accomplishment of the Obama administration. Crucial to Windsor was the fact that the DOJ at Obama's order quit defending the Defense of Marriage Act. Moreover, the Solicitor General participated in the oral arguments at both the Hollingsworth and Windsor considerations at SCOTUS. So I would say that these developments are certainly accomplishments of the Obama administration.

    I also invite you to consider how a Romney administration would have reacted to Windsor. It would not have been pretty. They would have fought tooth and nail to limit the effect of Windsor and certainly would not have implemented it so quickly.

  • 157. Eric  |  October 27, 2014 at 7:40 am

    Complying with the Constitution is not an accomplishment, it is an expectation.

  • 158. JayJonson  |  October 27, 2014 at 9:46 am

    I don't know whether to laugh at the naivete of such a statement or weep at it. In case you are very young, I need to remind you that for gay people our Constitution has been more honored in the breach than in the observance.

    If you think that Obama's observance of the Constitution is not an accomplishment, then feel free to vote for Republicans in the future, but I would not recommend it.

  • 159. MGinPA  |  October 25, 2014 at 6:02 pm

    How about Missouri? Perhaps the Feds are waiting for the appeal deadline to officially pass first.

  • 160. DACiowan  |  October 25, 2014 at 6:20 pm

    Since Missouri is only recognizing out of state marriages, wouldn't those marriages be already recognized by the Feds based on state of ceremony?

    (As an aside, I'm watching the World Series, and with Missouri recognizing this is the first time that a gay couple could attend every game and have both states recognize their marriage.)

  • 161. DACiowan  |  October 25, 2014 at 11:18 am

    Here's an Arizona Republic story on the number of same-sex licenses in Arizona:

  • 162. FredDorner  |  October 25, 2014 at 11:29 am

    Regarding the lack of absolute numbers in the article, an interesting quirk is that once a state no longer discriminates on the basis of gender it usually lacks the ability to easily track the number of same-sex marriages. Of course that's only a problem for demographers.

  • 163. brandall  |  October 25, 2014 at 12:01 pm

    As many of you know, I have a particular affection for seeing ME in Florida, if only to see Anita Bryant "lose it" in the state she started her hateful campaign in 1977. As I have said before, I would pay Anita’s appearance fees to have her read Judge Hinkle’s FL ruling aloud in front of a large crowd of GBLT’s holding hands together on the beach in Fort Lauderdale.

    As we narrow in on our ME win in Florida, I have put together some data on the possible different scenarios and timelines involved in getting over the finish line.

    Scenario #1
    The state cases are stalled at the 3rd District pending a Motion to Bypass which takes the cases directly to the Florida Supreme Court. That is an unpredictable timeline at the moment until the case reaches FSC and a schedule is issued. FSC is 4-3 Republican-Democratic so there is little to no chance they won't take up the consolidated cases. An FSC decision won’t happen in 2014. Assuming there was no decision by the 11th AC, the FSC case will be appealed to the 11th by the losing side. Based on Bondi's past lies, I don’t expect her to back off when she loses. So, ultimately it is the 11th’s decision that will bring ME to Florida unless somehow the FSC beats the 11th in the timeline and Bondi does not appeal. This could be as late as June, 2015 in this timeline.

    Scenario #2
    So, let’s focus on what is happening at the 11th AC. There are 3 states in the 11th Circuit: Alabama, Florida and Georgia. Here are are all the Federal cases:

    This case is so far out on the schedule, I will not include it in the timeline:
    09/2015 AL Aaron-Brush v. Bentley – Ready for Trial (out of state recognition only). And, yes, September, 2015 is not a typo.

    These Federal District cases should see decisions issued in November or December. AL and GA are two of the only 7 states where there has not been a ME ruling issued. They would be appealed to the 11th regardless of which way the decisions land:
    10/22/14 GA Inniss v. Aderhold – Defendant’s Reply in Support on the Motion to Dismiss
    10/29/14 AL Hard v. Bentley – Defendant’s Reply to Motion for Summary Judgment
    11/14/14 AL Searcy v. Bentley – Defendant’s Reply to Motion for Summary Judgment
    Federal District Judge Hinkle’s decision is already on appeal to the 11th:
    11/14/14 FL Grimsley v. Armstrong – Appellants' Briefs in Notice of Appeal.
    If the 11th denies the appeal (the 11th reversed Bowers v. Hardwick) which is highly unlikely, Bondi appeals to SCOTUS. SCOTUS denies cert and we could see ME in November, 2014.

    Scenario #3
    More likely is what we witnessed in the 6th, 9th and 10th…the 11th AC takes up the AL and GA case appeals, adds FL, schedules a day of oral arguments for all of the cases and then issues a ruling. That would mean oral arguments are in late December or January with a decision 30-90 days later. The only way the 11th could issue a decision sooner is if AL and GA (home of Bowers v. Hardwick) don’t defend their bans and FL is the only state with an appeal. I just don’t see that happening. We could be waiting until March, 2015 in this timeline.

    Scenario #4
    10/24/14 FL Grimsley v. Armstrong – Defendant’s Reply in Motion to Lift the Stay.
    I believe Judge Hinkle will grant this motion effective immediately or with a 7-day temporary stay. Bondi then appeals Hinkle’s stay decision to the 11th. This is where it gets really interesting since the SCOTUS cert denials earlier this month. We are now in unchartered territory since we are now dealing with a stay request with no Circuit decision that is post the SCOTUS cert denials. Does the 11th get the hint from the SCOTUS cert denials and not issue a stay? Or does it take the safe path citing Kitchen and issues a stay. In either outcome, it will be back up to SCOTUS for a decision on the stay. If Hinkle rules Monday, we could be back at SCOTUS by next Friday. It could be a Happy Halloween for ME in Florida.

  • 164. hopalongcassidy  |  October 25, 2014 at 12:53 pm

    Interesting set of possibilities. There might actually be other combinations of the variables in those 4 which could lead to a few additional scenarios…it's all rather mind boggling. By the way, it's "uncharted" as in territory that has not yet any charts/maps. 😉

  • 165. franklinsewell  |  October 25, 2014 at 2:10 pm

    Also, I want to point out that if the Florida Supreme Court was to rule against ME, I think (but IANAL) our side could decide to take the case directly to the Supreme Court.

  • 166. Mike_Baltimore  |  October 25, 2014 at 3:30 pm

    Our side (those for ME) can ONLY take the case from the Florida state Supreme Court if we lose the case at FSC, or Bondi can appeal the case to SCOTUS if the FSC ruling means she loses.

    Any case that goes through state court systems can ONLY be appealed to SCOTUS, and not through the Appeals Court for that circuit.

    And whether or not a Federal court has ruled (except SCOTUS for most cases), a state court can issue a ruling, whether it agrees with the Federal court decision or not (if a Federal court has issued a ruling).

  • 167. franklinsewell  |  October 25, 2014 at 3:59 pm

    Ahh.. thanks, Mike_Baltimore!

  • 168. Ryan K (a.k.a. KELL)  |  October 26, 2014 at 3:50 pm

    Precisely how Baker v. Nelson was done from the Minnesota Supreme Court back in the days when It was mandatory for the SCOTUS to take appeals from state supreme courts. There is no requirement now, and appeals are filed as writs of certiorari just like it is done from federal circuit courts.

    Another clarification from the original post: a federal circuit court cannot deny an appeal from a district court. The 11CA is required to hear the appeal from the district court in Florida. They can then uphold or reverse the decision, but not deny the appeal. After that of course, the appeal is completely at the discretion of SCOTUS. There are very few types of cases that are mandatory for SCOTUS to have to hear.

  • 169. brandall  |  October 26, 2014 at 4:01 pm

    Thank you for the Baker example and, yes, "deny" was the wrong word to use. I love learning and I love learning from the great folks on EoT. Thank you to Mike also.

  • 170. Ryan K (a.k.a. KELL)  |  October 26, 2014 at 4:08 pm

    If the FSC upheld the ban on marriage equality, it would be tough for the SCTOUS to utter that infamous one-liner. "The appeal is dismissed for want of a substantial federal question."

  • 171. sfbob  |  October 26, 2014 at 4:24 pm

    It's been tough for a long, long time. The passage of DOMA in 1996 ensured that marriage equality would generate a substantial federal question. Those few remaining judges and attorneys who continue to insist that Baker controls anything are not in touch with reality.

  • 172. brandall  |  October 26, 2014 at 4:38 pm

    IMHO, all of the anti-ME attorneys who exalt for pages and pages about Baker know exactly what are they doing…..making lots of money from their emotional, desperate clients and falsely persuading them Baker will save the day.

  • 173. Mike_Baltimore  |  October 26, 2014 at 9:17 pm

    The only one I can think of right now where it is mandatory for SCOTUS to take a case would be state v state.

    About a decade ago, SCOTUS ruled [7-2) in a case where the state of Maryland challenged the commonwealth of Virginia over the right to build structures that extend into the Potomac River, and to draw water from the river (the MD/VA state line is the low-water mark on the Southern [Virginia} shore line of the Potomac – the Potomac is in Maryland [and the District], but not in Virginia). Virginia won that case, but it was almost entirely based on the high court's interpretation of a 1786 compact between the two states.

    There may be other times SCOTUS MUST accept the appeal and/or is the court of origin for a case, but I can't think of what those other times might be. Possibly when treaties are involved, but I'm not sure SCOTUS origin of such a case would be mandatory.

  • 174. Rick55845  |  October 26, 2014 at 6:25 pm

    argle bargle

  • 175. RemC_Chicago  |  October 25, 2014 at 12:34 pm

    As a former Floridian who was living in Miami during the Anita years, and who left FL because of its lack of compassion for us, I too am watching this closely. Thanks for your work on this.

  • 176. brandall  |  October 25, 2014 at 1:45 pm

    You cannot help but love this Australian Party Leader for being succint when speaking to the Australian Christian Lobby, which fights against same-sex marriage, gay adoption rights, and anti-discrimination laws:

    "I believe in God and I believe in marriage equality."

    “When I hear people invoking scriptures to attack blended families, I cannot stay silent. I do not agree."

    “When I see people hiding behind the bible to insult and demonise people based on their sexuality I cannot stay silent, I do not agree."

    “When I hear people allege that ‘God tells them’ that marriage equality is the first step on the road to polygamy and bigamy and bestiality, I cannot stay silent. I do not agree.”

    “These prejudices do not reflect the Christian values I believe in.”

    These statements occur at about 8:20 of his 26 minute speech.

  • 177. ragefirewolf  |  October 26, 2014 at 7:57 pm

    Ugh, I'm getting that jonesing feeling again…

    Be dears and bring me some Marriage Equality News, aka MEN.
    I really need some MEN right now. Lots and lots of MEN. Preferably fresh, pleasing MEN. MEN that I will want to look at and talk endlessly about…

    K, thanks.

  • 178. Steve27516  |  October 26, 2014 at 9:24 pm

    LOL – ragefirewolf, I'll see what I can do.
    (Cue the music: "It's Raining Marriage Equality News")

  • 179. ragefirewolf  |  October 26, 2014 at 9:25 pm

    Hehehe! Thanks, Steve.

  • 180. DACiowan  |  October 26, 2014 at 9:31 pm

    From the perspective of the map I really want Montana so that everything west of Texas is a uniform blue.

  • 181. ragefirewolf  |  October 26, 2014 at 9:33 pm

    Oh, I would love some MEN from Montana!
    Brilliant, DAC.

  • 182. DACiowan  |  October 26, 2014 at 9:38 pm

    After Wyoming, I think there's still room for another round of cowboy country MEN.

  • 183. ragefirewolf  |  October 26, 2014 at 9:41 pm


  • 184. davepCA  |  October 26, 2014 at 9:43 pm

    One good cowboy would be enough for me, thanks. Don't be greedy, you guys : )

  • 185. ragefirewolf  |  October 26, 2014 at 9:46 pm

    What?! Cowboys?! I was talking about news, obviously…pshhh. 😉

  • 186. RnL2008  |  October 26, 2014 at 9:35 pm

    This is just so ridiculous but some idiot has to say it:

  • 187. Lynn_E  |  October 27, 2014 at 12:16 am

    Apparently when they recite the Pledge of Allegiance, their brain stops at "under god," and they don't understand the word "indivisible."

  • 188. jpmassar  |  October 26, 2014 at 9:37 pm

    A Florida appeals court has refused to let Attorney General Pam Bondi take the state's gay marriage ban directly to the Florida Supreme Court.

    The 3rd District Court of Appeal on Friday indicated it will likely rule itself on previous decisions striking down the Miami-Dade and Monroe counties bans.

  • 189. Ragavendran  |  October 27, 2014 at 8:02 am

    This is false news. I don't know the originating article, but there was a discussion yesterday in this thread or another one about the same wrong article on AP. The only order issued on Friday was one that acknowledged Bondi's changed position that now supports pass-through certification to the Florida Supreme Court. The court simply said that the suggestion to pass-through "will continue to be carried with the case," which only means they are still considering the matter. In what way does this indicate what the article is claiming?

  • 190. RemC_Chicago  |  October 27, 2014 at 8:08 am

    Odd. I've seen at least two separate newspapers with the same news report, including the Miami Herald.

  • 191. Ragavendran  |  October 27, 2014 at 8:32 am

    Often, newspapers will just "pick up" articles verbatim from the source with or without attribution. In the past, before I knew of this phenomenon, I thought that each of those articles were original. For example, see the Miami Herald (which attributes it explicitly to AP) and the Ledger articles. They are exactly the same, word-for-word:

    And others:

    All of these articles report the same thing, and it seems to have originated from the Associated Press. So if the AP is wrong, then these are all wrong.

    I tried hard, searching for the original AP article, but couldn't find it. Could they have realized the error and taken it down?

  • 192. jpmassar  |  October 26, 2014 at 9:42 pm

    Westboro Baptist Church seeks to defend Kansas marriage ban

    The virulently anti-gay Westboro Baptist Church is seeking to intervene in a legal challenge against the ban on same-sex marriage in Kansas, citing fear of God’s wrath if the court rules in favor of the right of gay couples to marry.

    In a 22-page legal brief filed Sunday loaded with references to biblical Scripture and condemnation of homosexuality, the Church seeks to take part in a lawsuit pending before the U.S. District Court for the Kansas, saying same-sex marriage “is utterly contrary to Bible doctrine.”

    “Same-sex marriage will destroy Kansas,” the brief states. “If this Court requires Kansas officials to treat what God has called abominable as something to be respected, revered, and blessed with the seal-of-approval of the government, that will cross a final line with God. The harm that will befall this state, when the condign destructive wrath of God pours out on Kansans is the ultimate harm to the health, welfare and safety of the people.

  • 193. ragefirewolf  |  October 26, 2014 at 9:52 pm

    Uhh, not that I normally indulge sick vile rhetoric very often, but allow me to predict by induction for a moment.


    Fire and brimstone ain't happened yet, so it ain't gonna happen in Kansas, Dorothy. Calm your sepia tits.

  • 194. RnL2008  |  October 26, 2014 at 11:03 pm

    I've said it before and I'll say it again….STUPID should hurt!!

    By the way, how could their be a Flood in Genesis 7, but Sodom and Gomorrah was destroyed in Genesis 19? Anyone want to explain this?

  • 195. RnL2008  |  October 26, 2014 at 10:51 pm

    It is OBVIOUS that these folks are nuttier than a fruit cake……this Country was NEVER founded on Christianity, our laws are NOT based on the Bible nor is there ANY reference to the bible in our Constitution.

    I seriously doubt that a judge would allow the WBC to intervene in this case and ESPECIALLY with the grounds in which they are trying!!!

  • 196. RQO  |  October 27, 2014 at 5:26 am

    Once again the anti-ME folks treat each state battle as if it occurs in a one state vacuum, as if Massachusett's (and other states') 10 year history doesn't exist. This phenomenon was particularly evident during debates in state legislatures, where not even pro-ME forces would mention it. Why is this?

  • 197. sfbob  |  October 27, 2014 at 8:14 am

    Oh, probably just denial. Combined with a localized version of the well-known phenomenon of American exceptionalism. "Our state is different; what happened in those other states doesn't count."

  • 198. guitaristbl  |  October 27, 2014 at 7:24 am

    Please please please let them intervene ! I would love to see brownback (if he is still governor which seems increasingly unlikely) defending the ban side by side with WBC. I am sure a majority of Kansans would love it as well (not – they may be bigoted but WBC has achieved the impossible – everyone in the country from far right to far left hates them). Please let them intervene its been sometime since I had a good laugh.

  • 199. Eric  |  October 27, 2014 at 7:46 am

    YHWH's track record of inflicting his wrath broadly on innocent third-parties is evidence that the harm is not particularized to WBC and they therefore lack standing.

  • 200. Eric  |  October 27, 2014 at 7:46 am

    YHWH's track record of inflicting wrath broadly on innocent third-parties is evidence that the harm is not particularized to WBC and they therefore lack standing.

  • 201. StraightDave  |  October 27, 2014 at 8:38 am

    Some of us wish god would be a bit more selective is aiming his particularized harm. That way there would be no WBC to even ask for standing.

  • 202. StraightDave  |  October 27, 2014 at 9:01 am

    I know the WBC is a collective basket case, but I can't help piling on. The reason they offer for why they should be allowed to intervene is because of state officials' "inability to invoke religion in the arguments", which would "constitute a breach of the separation of church and state"

    But somehow a church has some magical ability to invoke religion in the courts?!?!? Or are they just generally exempt from all civil laws and the constitution?

    I really wish they could get disbarred for frivolous filings. Once their source of fraudulent income disappeared, so would they.

  • 203. davepCA  |  October 27, 2014 at 9:59 am

    Yes, they should be disbarred. But first, I would like to see them do more than just intervene in this case, I would like to see them stand up in court and spew their craziness and face questioning by a panel of judges. And I would like to see it all end up on the evening news. That would be awesome. It would greatly benefit us by showing all of that extreme anti-gay insanity and idiocy to the general public.

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