Equality On TrialA Few Anti-Gay Governors Just Won't Admit Defeat

A Few Anti-Gay Governors Just Won’t Admit Defeat

October 28, 2014

By mattymatt

By Matt Baume

The number of states with marriage has gone up yet again this week. Only a handful of states are stil trying to defend their marriage bans, and they’re quickly running out of ways to delay their inevitable loss. A straight couple in Kansas has filed a new anti-gay lawsuit, and it’s nuts. A federal judge just ruled against the freedom to marry, but his decision has virtually no chance of being upheld. Plus, there’s a powerful new lawsuit in Mississippi.

We picked up one more marriage equality state last week: Wyoming, bringing the total to 32. Wyoming is part of the tenth circuit, where rulings in Utah and Oklahoma paved the way for marriage equality earlier this year. Wyoming Governor Matt Mead announced last week that he would end the state’s attempts to defend its marriage ban. That’s quite a turnaround from three years ago, when Mead campaigned on opposing marriage for gay and lesbian couples.

At this point, it’s clear that the freedom to marry is coming to every state, and soon. So who’s still fighting it? Well, last week Idaho Governor Butch Otter asked the Ninth Circuit Court of Appeals for another chance to defend his state’s marriage ban. You may recall the bumbling defense that Otter’s attorney, Monte Stewart, offered before the Ninth Circuit just a few weeks ago. The court is unlikely to grant Idaho’s request for an en banc hearing, and even if they did, the state has almost no chance of prevailing.

Kansas, Montana, and South Carolina are also still fighting to uphold their marriage bans. As in Idaho, their chances of success are vanishingly slim. The most unlikely arguments happening right now are in Kansas, where a straight couple wants to intervene in a marriage case because they say gay couples literally want to steal their marriage. They also claim that if gay couples can get married, then the word marriage itself might cease to exist. The court is likely to give these arguments exactly as much consideration as they deserve.

Last week Ruth Bader Ginsburg observed that so far, federal appeals courts have all been in agreement that marriage bans are unconstitutional. But there’s still a chance that could change. We’re currently awaiting decisions in the Fifth and Sixth Circuits, and just last week, a judge in Puerto Rico upheld a marriage ban. Puerto Rico is part of the United States Court of Appeals for the First Circuit, along with several New England states. That ruling now moves to appeal. Considering that every other state in the First Circuit has had marriage equality for years, it’s very unlikely that First Circuit judges will uphold Puerto Rico’s ruling.

And there’s a new federal case in Mississippi. Two couples there have sued the state for marriage recognition. Previously, the only other lawsuit in Mississippi was a divorce case. This new lawsuit is much stronger. It joins two other Fifth Circuit cases in Texas and Louisiana, both of which are a little bit further along, but Mississippi could quickly catch up to them.

Equality news round-up: US to recognize same-sex... Equality news round-up: NOM getting involved in...

3417759 Comments2014-10-28+15%3A00%3A08mattymatt

1. Silvershrimp0 | October 28, 2014 at 7:50 am

No news from the 6th yet. Still hoping today could be the day!
2. Samiscat1 | October 28, 2014 at 8:05 am

Nothing.
3. Silvershrimp0 | October 28, 2014 at 8:10 am

At least the election is next week. Hopefully they won't drag it out any further.
4. brandall | October 28, 2014 at 7:55 am

Today… we need Hinkle to lift the stay,
We need the 2nd to allow the divorce for which its been beckoned
We need the 3rd to see keeping the case is absurd
We need the 6th to issue its fix

(FL Federal Northern District, 2nd District FL State AC, 3rd District FL State AC, 6th Federal AC)
5. Jen_in_MI | October 28, 2014 at 8:46 am

Nicely done! A secret poet, I see. 🙂
6. davepCA | October 28, 2014 at 10:19 am

Ah haaaah. I see what you did there : )
7. Zack12 | October 28, 2014 at 9:25 am

http://ksn.com/2014/10/28/judge-sets-new-hearing-…
It looks Kansas could have equality by the end of this week.
8. Ragavendran | October 28, 2014 at 9:38 am

Or over the weekend. So far, there haven't been rulings from the bench striking down bans. But this could be the first one.
9. jdw_karasu | October 28, 2014 at 10:43 am

He might be setting it for Friday so that he can punt over the weekend rather then bench rule, then punt from Monday to Wednesday in issuing an order/opinion. Brownback is polling slightly better at the moment, and one would hate to ponder what The Base will due if something comes down Fri-Tue in terms of turning out. :/

We're going to win in Kansas because of the Circuit ruling. But considering how much damage Brownback & Co are doing in the state, I'd just as soon see him gone and take a Wednesday decision if it helps get him out. :/
10. Elihu_Bystander | October 28, 2014 at 9:57 am

Others on this site have accurately described the relationship of precedence of circuit courts of appeal over state courts. I have forgotten the responses. What about the K-SC injunction. How does that play out in the entire scheme of things in Kansas?
11. Ragavendran | October 28, 2014 at 11:06 am

All that the Kansas Supreme Court has done is temporarily block an administrative order issued by a state district judge that instructed his court clerk to issue marriage licenses. There is no injunction that currently forbids court clerks across Kansas from issuing marriage licenses. Once there is a federal injunction, the administrative order would likely be moot, because the court clerks will be bound by the federal court anyway.

Not directly related (because there is no injunction against a clerk here), but similar: Recall that in PA, the Supreme Court explicitly enjoined one clerk from issuing marriage licenses. Even after a federal court struck down PA's ban, that clerk waited for the PA Supreme Court to lift its stay before he started issuing licenses. Now, I don't know if he legally had to wait, or whether he chose to wait out of respect/courtesy.

We'll have an opportunity to witness the discussion/argument that happens in the Kansas Supreme Court during the emergency hearing on November 7 (if it still happens as scheduled). Assuming the federal court issues the expected preliminary injunction by then, there will definitely be a portion of the argument devoted for discussing what authority, if any, the Kansas Supreme Court would have to do anything about the federal injunction. The Kansas Supreme Court might well withdraw, relinquishing jurisdiction and/or declaring the case moot.
12. jm64tx | October 29, 2014 at 7:00 pm

"Once there is a federal injunction, the administrative order would likely be moot, because the court clerks will be bound by the federal court anyway."

Nope. Remember…. federal opinions are not binding authority in state court. State court clerks report to state judges, not federal judges. Thus, a federal injunction does not moot a state court order.
13. Ragavendran | October 29, 2014 at 7:06 pm

When they are both saying the same thing (like in this case), it doesn't matter. Court clerks who are charged with the responsibility of licensing marriages will be bound by the federal injunction when it comes down, even if the state court's administrative order is still stayed (or not) by the Kansas Supreme Court. It becomes irrelevant. (After all, in the larger scheme of things, the federal court is invalidating a state law.)
14. RnL2008 | October 28, 2014 at 11:03 am

That would be nice…..maybe SC and Montana will take the hint!!!
15. sfbob | October 28, 2014 at 9:48 am

Matt, the straight couple's request to intervene was denied last week. Now it's Westboro Baptist Church's turn to try (unsuccessfully) to meddle…because hellfire and damnation.
16. guitaristbl | October 28, 2014 at 10:24 am

"Considering that every other state in the First Circuit has had marriage equality for years, it’s very unlikely that First Circuit judges will uphold Puerto Rico’s ruling."

I can't see the rationale here tbh. It's one thing to say that the first circuit is very liberal (it's not IMO) and thus they are unlikely to uphold then ban and another to say that because each state in the first enacted ME either through legislative means, state court decision or referendum (coincidentally the first has states that enacted ME with all of those ways) a federal appeals court will strike down Puerto Rico's ban. Anyway, has the appeal been filed yet in that case ?
17. sfbob | October 28, 2014 at 11:12 am

I think it's been proven that judges need not be extremely liberal to support rulings in favor of marriage equality. Although the decision in Gill assumed Baker was still a precedent, that ruling was issued prior to Windsor. Windsor (IMHO) made Baker a dead letter–not that it wasn't already–and I'd expect the First Circuit will understand that. As far as I know the appeal hasn't yet been filed but I have no doubt it's coming. But you're right: the legislative history among the states in the First District probably shouldn't have much impact one way or the other in how the courts might rule.
18. Mike_Baltimore | October 28, 2014 at 5:19 pm

I think SCOTUS made it a bit more clear on October 6 when it denied cert to the various requests for cert.

If 'Baker' still applied, the lower courts would not have been able to hear the cases, let alone rule. Since they did, and SCOTUS denied the defendants' requests for cert, SCOTUS, in effect, did not say the lower courts erred in disregarding 'Baker', but were fully correct in disregarding 'Baker'.
19. franklinsewell | October 28, 2014 at 12:02 pm

The plaintiffs have filed their notice of appeal: https://www.scribd.com/doc/244781587/3-14-cv-0125…
20. Leo | October 28, 2014 at 12:05 pm

It has been filed now. EqualityCaseFiles has the notice of appeal.
21. jcmeiners | October 28, 2014 at 12:29 pm

The dismissal of the lawsuit in district court based on Baker has been "with prejudice". How unwittingly apt!
22. Elihu_Bystander | October 28, 2014 at 2:35 pm

The legal meaning of "with prejudice" means they cannot refile the same suit again. Of course, that does not mean that they cannot file an appeal to the motion to dismiss to the 1st CA. As noted above they have filed a notice to appeal to the 1st CA, but not the actual appeal.

As previously noted on another thread, if they win the appeal of the motion to dismiss in CA the case is remanded back to the same district trial court to continue where they left off. If they loose they can appeal the motion to dismiss to the SCOUTS. If they win the appeal, the case is remanded back to the same district court as above. So this is going to take some time.
23. Mike_Baltimore | October 28, 2014 at 5:14 pm

There are two ways to lose an appeal at a Federal Appeals Court after a notice of appeal is given, but before the court actually takes up the case:

1. Fail to appeal the decision within the time limits, or

2. Announce that there will be no appeal.

I get the distinct feeling that the attorneys for the plaintiffs in PR will NOT back down, and will observe the laws and rules.
24. jm64tx | October 29, 2014 at 7:02 pm

A notice of appeal transfers the case to the appellate court. Thus, a notice of appeal institutes an appeal.
25. MarcoLuxe | October 28, 2014 at 1:19 pm

I technically agree, BUT, the first circuit judges have everyday real life experience with marriage equality. Judging is not mechanical; these are flesh and blood people prioritizing human values informed by their experience. And that makes a difference.
26. Margo Schulter | October 28, 2014 at 11:08 am

For the First Circuit, Windsor might be the critical factor giving them a basis to say that since not even Justice Scalia’s dissent mentioned Baker, and the question of state marriage bans was pretty clearly regarded as reserved rather than insubstantial, “doctrinal developments” have indeed developed and Baker is no longer binding precedent.
27. sfbob | October 28, 2014 at 1:01 pm

South Carolina has filed their response in Bradacs v Haley. As usual, they're relying on Baker and on the 11th Amendment. Regarding the Baker they are claiming the Fourth Circuit decided wrongly in determining that Baker is no longer a precedent, an argument I'm sure the Fourth Circuit will be very impressed with. They're also claiming the plaintiffs don't have standing under sovereign immunity. Of course the argument they make here would, if taken seriously, mean that nobody ever has the ability to sue a state. That's been dealt with.
About the only interesting point they make is that Full Faith and Credit doesn't apply to recognition of out-of-state marriages. In a sense they are correct since the state's marriage ban is not a judgement but a legislative act. However that point is really rather irrelevant since the public policy exception is not self-executing. In order to hold up there has to be some independent justification for the public policy. And naturally the state concludes that its ban withstands rational basis. Which of course it does not.

Here's the filing: https://www.scribd.com/doc/244787828/3-13-cv-0235…
28. RnL2008 | October 28, 2014 at 1:17 pm

I really DON'T understand how these idiots can claim that Baker is STILL binding precedent, but the ruling from the 4th is NOT and the State is NOT required to follow the new precedent, but rather the old, outdated and NO longer relevant ruling like Baker is today!!!
29. Japrisot | October 28, 2014 at 1:20 pm

I love that there's a grammatical error in the first word of this filing.
30. sfbob | October 28, 2014 at 1:23 pm

One of the stranger statements in a very strange brief:

"Bostic did not address questions of Federalism requiring that issues regarding marital status be heard by state courts."

An interesting precedent, which I believe they state concocted out of thin air. Also too, the state seems never to have heard of the Supremacy Clause.
31. Japrisot | October 28, 2014 at 1:51 pm

Yeah, it's throwing pasta at at the wall time. Wrong parties. Wrong court. No standing. Sovereign immunity (lol). And the principle of Federalism, not any particular application of it, just Federalism in general.

Bostic did everything it needed to with respect to Federalism the moment it cited Loving.
32. RnL2008 | October 28, 2014 at 2:00 pm

I agree with ya……and the pasta throwing is a good analogy……lol!!!
33. ragefirewolf | October 29, 2014 at 9:03 pm

The FSM will strike them down for their blasphemy.

Beware his saucy wrath!!

rAmen
34. RnL2008 | October 29, 2014 at 10:06 pm

Lol:-)
35. sfbob | October 28, 2014 at 2:20 pm

Good point there. If the state were correct it would mean that Loving had been decided incorrectly. Nobody, at least no jurist whose made it into the federal courts, is going to accept such a suggestion.
36. jm64tx | October 29, 2014 at 7:11 pm

"Bostic did everything it needed to with respect to Federalism the moment it cited Loving."

Um did you notice this in Loving?

"The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."

Thats federalism at its finest. All of the states got together and said… we eliminate all sources of racial discrimination (as evidenced by the fact that a constitutional amendment must be ratified by the states).

So not quite the same.
37. Rick55845 | October 29, 2014 at 7:47 pm

Clever bigot troll.
38. davepCA | October 29, 2014 at 8:07 pm

no, yes, and yes.
39. ragefirewolf | October 29, 2014 at 9:10 pm

Clear and central purpose at the time, maybe. Not the only purpose. Not the only case either. 🙂
40. guitaristbl | October 28, 2014 at 1:53 pm

So they are saying to a district judge controlled by 4th circ precedent that the court above her decided wrong and that she, and not the court of appeals above her, is called to correct that mistake ?
They make no judicial sense at this point. Not that they make sense in any other way but this is what should matter here.
I am certain that once the ban has been rendered unenforcable by Childs they will seek stays from her, the 4th and SCOTUS. The catch here is if the 6th has ruled against equality till then will SCOTUS still deny stays to states like SC, MT and KS ?
I am guessing that's what they are counting on.
41. RnL2008 | October 28, 2014 at 2:03 pm

A good question regarding a Stay if the 6th should rule against ME….but somehow, I DON'T think SCOTUS is going to go back to cases they have already denied cert in and stay those rulings going forward…….and again, I believe that SCOTUS has already give an indication on how this will be handled and it's NOT in the proponents favor!!!
42. Zack12 | October 28, 2014 at 2:18 pm

As far as SCOTUS is concerned, marriage equality is a settled issue in the 4th circuit.
They made that clear when they denied cert on the Bostic case.
Also, there is another federal lawsuit pending which will be heard Nov 3rd so it is possible Judge Childs won't even be needed in striking this ban down.
43. Rick55845 | October 28, 2014 at 2:27 pm

What is that other case, do you happen to know? Is it also in South Carolina? Why would it move faster than this one?
44. sfbob | October 28, 2014 at 2:34 pm

The other case is Condon v Haley. Bradacs v Haley is the older case. Condon v Haley was only filed about two weeks ago based partly on the suspicion that the judge in Bradacs was dragging things out needlessly.

There is an additional case pending in SC as well, which involves a suit against the state DMV which is refusing to permit a lesbian who married and took her spouse's last name to obtain an updated driver's license. That one was filed just last Friday.
45. Rick55845 | October 28, 2014 at 2:45 pm

Thank you. Is there any speculation as to why Judge Childs might be dragging her feet? Is she a bigot?
46. Zack12 | October 28, 2014 at 2:59 pm

If I had to hazard a guess, I would say that yes, she is a bigot.
SC hasn't come up with new arguments to defend their ban that weren't shot down in Bostic.
And to claim that Bostic isn't binding is simply absurd.
And yet, she isn't hearing anything for a couple more weeks. There is no reason to let South Carolina drag this out unless she agrees with them but also knows she can't do anything but strike down the ban.
47. DrBriCA | October 28, 2014 at 4:26 pm

One difference between the two is that Condon v. Haley addresses the ban on issuing licenses, whereas Bradac v. Haley addresses the ban on recognizing outside marriages.

Given how Judge Childs is dragging out Bradacs and how she's been described as methodical, I would not be surprised if her eventual ruling purposefully only focused on recognition bans (despite the 4th CA ruling already laying the guidelines to throw out both parts of the bans). So, the Condon case seems necessary to make sure SC doesn't just become like Missouri right now. And thankfully, that judge is moving much more swiftly.

Sidenote: I've wondered if Feldman asked for those extra briefs on Louisiana's marriage ban specifically so that he could focus his ruling on the licensing issue rather than the recognition issue, which is how his eventual disappointing ruling was written. The original cases before him were just about recognizing out-of-state marriages, which would seem harder for a federal judge to rule against, but once he brought in the topic of issuing licenses, he could go back to Baker v. Nelson more directly.
48. Elihu_Bystander | October 28, 2014 at 2:52 pm

So we have a cut and paste version of the Kansas reply brief.

This is all they have left. The argument is no longer on the merits of the case but rather how Bradacs v. Haley is dissimilar to Bostic, and therefore the 4th CA mandate from Bostic dos not apply to Bradacs.
49. sfbob | October 28, 2014 at 2:56 pm

"…Bradacs v. Haley is dissimilar to Bostic, and therefore the 4th CA mandate from Bostic dos not apply to Bradacs."

One has to wonder how they can make such a ludicrous claim without smirking. Because South Carolina isn't Virginia? Because SC uses a different font in their constitution? Because Bradacs isn't Bostic? I'm mean really, who do they think they're kidding?
50. hopalongcassidy | October 28, 2014 at 2:58 pm

more like winking…,with fingers crossed behind the back.
😉
51. Zack12 | October 28, 2014 at 3:02 pm

The only honest thing they could say about their ban is that it wasn't as draconian as Virginia's, which went as far as to ban private contracts between same sex couples because it could resemble marriage.
Other then that, they have nothing.
52. sfbob | October 28, 2014 at 3:09 pm

Perhaps the people who are responsible for regulating marriage have different titles from those who perform the same functions in Virginia. So that means…well of course it means nothing; what matters is the statutory and constitutional language, which serves precisely the same purpose in both states, give or take a private contract (that one would have been tossed really fast if it had been the only part of Virginia's ban contested. I can't imagine a restraint on the ability of two adults to write contracts could Virginia's law contemplated could possibly have held up…though there were debates as to whether it really did that in any case and in any case, Virginia's ban is now toast.)
53. Mike_Baltimore | October 28, 2014 at 5:00 pm

In South Carolina, the bride and groom must appear together at the office of a South Carolina county probate judge and file a written application.

In Virginia, the license for marriage is issued by the clerk or his/her deputy clerk of a circuit court in any county or city in the Commonwealth of Virginia.

So yes, there is a slight difference in who regulates the function in the two states. Not that the difference matters, though.
54. jm64tx | October 29, 2014 at 7:14 pm

Well given that a federal judge cant issue binding orders to a state judge… theres quite a bit of difference.

State judges are immune from federal jurisdiction under the judicial immunity doctrine.
55. ragefirewolf | October 29, 2014 at 9:15 pm

Shhhhh, it'll be okay. Just return to your cave and don't worry your raggedy little head over it.
56. tornado163 | October 28, 2014 at 5:25 pm

There's something I've been wondering. Since the 5th Circuit is moving so slowly in scheduling oral argument, why don't the Texas couples file a motion to have the stay cancelled based on the Supreme Court recently denying cert for other states? It seems to me that if the Alaska and Idaho's decisions aren't stayed pending their appeals, why should there be stays in Texas (or Florida, Arkansas, or any of the 6th Circuit states).
57. DrBriCA | October 28, 2014 at 6:24 pm

My hunch is that there's still a chance SCOTUS would let the stays continue, as their respective Court of Appeals have not yet weighed in on the issue. The original Kitchen stay (district level) was ordered to be in place until the 10th CA weighed in on the issue. Same with Evans v. Utah. (The stay on the 4th Circuit order is a different matter all together.)

Idaho and Alaska's stay requests were denied because the 9th CA had ruled. While there's a small chance that SCOTUS would let the cat even more out of the bag about their eventual decision on ME by refusing stay requests for all remaining pro-ME decisions in this post-Oct 6 era, there's still the higher likelihood that they want the process to proceed as usual and let each Court of Appeal rule on the decision before they can go into effect.

FWIW, the Florida plaintiffs are requesting that the stay be dissolved sooner, and we're awaiting that judge's ruling any day now.
58. BillinNO | October 29, 2014 at 7:56 pm

Now I get why those judges in Cincinnati are taking so long- the 6th Circuit is just another inverted 9th Circuit.
59. Myron | November 4, 2014 at 10:46 am

What’s up, the whole thing is going well here and ofcourse every one is sharing information, that’s
really fine, keep up writing.