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READ IT HERE: Plaintiffs’ opposition to stay, filed in Supreme Court, in Kansas marriage case

LGBT Legal Cases Marriage equality Marriage Equality Trials

It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
The plaintiffs in the Kansas same-sex marriage case have filed their opposition to the stay. Like the request for a stay itself (which can be read here) the opposition is directed to Justice Sotomayor in her capacity as Circuit Justice for the Tenth Circuit Court of Appeals.

You can read the brief here:

14A503 Opposition to Stay by Equality Case Files

Thanks to Equality Case Files for these filings


  • 1. Raga  |  November 11, 2014 at 12:04 pm

    From the filing:

    "[T]here is neither a fair prospect that this Court will grant certiorari nor a significant possibility of reversal based on Defendants’ arguments that federal litigation in this case was somehow barred because it would ostensibly interfere with the mandamus proceedings before the Kansas Supreme Court – proceedings in which neither the Plaintiffs nor any other same-sex couples are parties. Stay Application at 5-7, 13. “[T]here is no doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 373 (1989). Federal and State courts have concurrent jurisdiction over constitutional questions, and “[a]bstention is not in order simply because a pending state-court proceeding involves the same subject matter.” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013). The district court thoroughly and carefully explained why each of Defendants’ arguments regarding the mandamus proceeding is meritless, and Defendants have offered no meaningful response to the court’s careful analysis."

    "This Court will soon have the opportunity to decide whether the Fourteenth Amendment allows States to deny same-sex couples the freedom to marry. But the theoretical possibility that this Court may disagree with the overwhelming majority of lower courts and uphold such bans as constitutional does not justify issuing a stay to allow Kansas to continue inflicting irreparable harm on same-sex couples while they await the Court's decision."

  • 2. dorothyrothchild  |  November 11, 2014 at 12:23 pm

    Any thoughts on a possible timeline for when the Supremes will announce their decision and Kansas marriages can start?

  • 3. franklinsewell  |  November 11, 2014 at 12:27 pm

    Several people have suggested it could be tomorrow.

  • 4. dorothyrothchild  |  November 11, 2014 at 1:00 pm

    Thanks for the update. I sort of quit reading the comments after hopalong went on his little rant.

  • 5. ragefirewolf  |  November 12, 2014 at 5:20 am

    Please don't let that stop you. The large majority of comments on here are informative and not offensive. In fact, you may occasionally see an update in the comments faster than you would in a new post on EoT. 🙂

  • 6. MichaelGrabow  |  November 12, 2014 at 5:47 am

    I would say you would regularly see that.

  • 7. ragefirewolf  |  November 12, 2014 at 6:25 am

    True 🙂

  • 8. RnL2008  |  November 11, 2014 at 12:35 pm

    My guess is either later today or tomorrow…..anything from the 10th circuit has already been dealt with and I DON'T believe Kansas will prevail here!!!

  • 9. Raga  |  November 11, 2014 at 12:39 pm

    Moser et al. would presumably file a reply to this response, by the end of today. I wonder if they'll ask, in the alternative that the Supreme Court denies a stay pending appeal, for a stay pending disposition of their petition for initial hearing en banc at the Tenth Circuit (to be extended to a stay pending appeal if the petition ends up being granted). I would do so if I wanted to stall the inevitable for as long as possible.

  • 10. RnL2008  |  November 11, 2014 at 12:50 pm

    I just DON'T think the 10th will grant an en banc hearing nor do I believe SCOTUS will grant a stay!!!

  • 11. Raga  |  November 11, 2014 at 1:06 pm

    I'm with you, Rose!

  • 12. RnL2008  |  November 11, 2014 at 6:04 pm


  • 13. andrewofca  |  November 11, 2014 at 2:34 pm

    Sotomayor has shown herself to be somewhat cautious and deferential to her colleagues. My guess would be she defers to the full court, gives them a day or two to think about it and then they collectively refuse the stay on Thursday or Friday.

  • 14. Steve27516  |  November 11, 2014 at 1:00 pm

    My money is on the Supremes denying the emergency stay request before 5pm Central / 6pm Eastern time today, when the existing stay from the federal court expires. Marriage equality is settled law in the Tenth Circuit.

  • 15. Silvershrimp0  |  November 11, 2014 at 1:04 pm

    Fingers crossed

  • 16. Raga  |  November 11, 2014 at 1:21 pm

    Not sure if this has been reported, but Breyer is the latest Justice to weigh in:

  • 17. DACiowan  |  November 11, 2014 at 1:59 pm

    Nebraska is getting a case filed! The last state holdout: Star Herald article

  • 18. ragefirewolf  |  November 12, 2014 at 5:57 am

    Okay. This is where my confusion was. Now I understand:

    "The Nebraska Supreme Court heard a case earlier this year that could have provided an opening to consider the constitutionality of Nebraska’s marriage ban. The case was filed by a woman seeking to divorce her same-sex spouse.

    The state high court ruled in June that the appeal was premature and sent the case back to Lancaster County District Court."

  • 19. RobW303  |  November 12, 2014 at 8:34 am

    A case, Stewart and Stewart v. Heineman, challenging the ban was filed by three same-sex couples and the ACLU on August 23, 2013. I gather that the divorce case was a separate and later one (filed March 28, 2014, per my notes). Any idea what happened to the older case?

  • 20. DACiowan  |  November 12, 2014 at 1:29 pm

    Looks like Stewart was just challenging the adoption ban. ACLU page

  • 21. Raga  |  November 11, 2014 at 4:32 pm

    Among other things, the mystery of the abrupt cancellation of the Sevcik oral argument way back in March 2014 is now solved. Recall that it was originally scheduled for April 9 and almost immediately cancelled. We all wondered at that time, whether the reason was because it conflicted with the counsel's required presence at the Tenth Circuit for oral argument in Kitchen just a day later, on April 10. This letter confirms that wasn't the case:

  • 22. guitaristbl  |  November 11, 2014 at 4:59 pm

    Will they just go home when the WHOLE 9th circuit denies en banc hearings to them, Idaho and Alaska..finally ?
    They could not prevail in the 9th, not if the randomly selected panel did not include O'Scannlain, Bybee, Bea, Randy Smith or Tallman possibly (whose dissent in the prop 100 case from Arizona makes me suspect he may have upheld marriage bans if he was in a panel) (the last two did not even dissent in hearing SmithKleine en banc meaning they felt comfortable with heightened scrutiny applied to sexual orientation – under which marriage bans do face a hard time to survive) or more precisely a combination of at least 2 of those out of the 29 active circuit justices. So let's take only the 3 who were in the SmithKleine dissent as the ones most likely to uphold marriage bans. Picking one of those justices randomly for a panel has a 3,45 % chance. Picking two of them has a 0,12 % chance (3,45 % chance of the 3,45 % to pick the first judge). Picking a panel with all these 3 justices that dissented in SmithKleine has a 0,004 % (3,45 % of the 0,12 % to pick the two judges) chance to happen !
    So for them to get a majority that dissented in SmithKleine thus disagrees with applying heightened scrutiny to sexual orientation classifications has AT BEST a 0,12 % chance to happen ! What are we arguing here ???

  • 23. RnL2008  |  November 11, 2014 at 9:38 pm

    I think that Monte and his band of morons just need something to keep the money flowing into their pockets and for Monte……he didn't just get slapped once, but twice.,……and still he DIDN'T learn a damn thing!!!

  • 24. Brad_1  |  November 11, 2014 at 10:39 pm

    Fool Monte.

  • 25. RemC_Chicago  |  November 12, 2014 at 7:24 am

    Hmmmmmm…I just had a thought. Maybe he LIKES being slapped.

  • 26. DeadHead  |  November 11, 2014 at 5:59 pm

    This sums up Monte's desperation…. "Peter Renn, a lawyer with Lambda Legal, which represents the plaintiffs in the Nevada case, said, “This conspiracy theory is more believable as the plot to a John Grisham novel than a credible legal argument substantiated by evidence. Holding a losing hand does not mean that the deck has been stacked,” he said. “This conspiracy theory is frivolous and sad, and it reeks of desperation. It is embarrassing that the other side has stooped to attacking the integrity of our federal judiciary, rather than accept their loss with an ounce of grace.”

  • 27. Rick55845  |  November 11, 2014 at 6:46 pm

    I read it, but I'm not sure I understand it. I also read the NY Times article referenced in Monte's letter.

    I mean, I understand about the cancellation of Sevcik oral arguments, but it sounds like perhaps Monte has a point, if the description of the panel selection process attributed to Judge Kozinksi and the results of the study conducted by the two researchers is accurate.

    Or maybe I'm really in the dark, here.

  • 28. Brad_1  |  November 11, 2014 at 7:09 pm

    It's good to see a right-wing extremist like Monte recognize that the New York Times is a respected, balanced source of objective news coverage.

    Monte, though, forgot to cite this particular quote from that Times article:

    "Peter H. Irons, an emeritus professor of political science at the University of California, San Diego, questioned the group’s [the group Monte represents] selection of cases and noted that the decisions of panels including Judge Berzon and Judge Reinhardt were not uniformly in favor of gay rights. 'The allegation of panel rigging based on a supposed statistical analysis is completely bogus and totally unsupported by any facts,' he said."

  • 29. Sagesse  |  November 11, 2014 at 8:02 pm

    I have not checked the math, so perhaps I am misunderstanding, but the three most recent marriage equality cases (Nevada, Idaho and Hawaii) were heard by THE SAME panel. So, sort of by definition, Reinhardt and Berzon have heard and decided three of the LGBT rights cases Stewart & Co are concerned about because they were heard by the SAME PANEL at the same SAME TIME. Am I missing something?

  • 30. F_Young  |  November 11, 2014 at 7:31 pm

    Off topic: For People Fired For Being Gay, Old Court Case Becomes A New Tool

  • 31. sfbob  |  November 11, 2014 at 10:49 pm

    Yes. I work for the federal government. There are some civil-service-wide protections and some agency-specific ones. My agency happens to be one of the more progressive ones so when we receive guidance about how to deal with discrimination in the workplace there is a section addressed to LGBT employees that basically covers the same ground as the linked article does. It's not a sure win by a long shot but it can be effective in at least some cases.

  • 32. ragefirewolf  |  November 12, 2014 at 6:26 am

    Ya know…being on the edge of my seat this often is not good for my back. Lol.

  • 33. R_A_J  |  November 12, 2014 at 6:43 am

    Off Topic: A couple of weeks ago we saw a court award attorneys fees to some of the marriage ban plaintiffs in Oklahoma. It looks like a similar move is afoot in Utah. This article concerns the Evans v. Herbert plaintiffs (not the Kitchen v. Herbert plaintiffs). These were the plaintiffs who got married during the window before SCOTUS stayed Kitchen.

    The slant of the article is very "isn't this OUTRAGEOUS!" but people in the comments section are having none of it. See, for example this comment:

    J H
    Edmonds, WA

    "Denying people equal protection under the law is expensive."

  • 34. TDGrove  |  November 12, 2014 at 7:20 am

    South Carolina ruling is out, though it is stayed until the 20th. Will let others fill in the details, just wanted to give a heads up.

  • 35. MichaelGrabow  |  November 12, 2014 at 7:21 am

    Ruling and article

  • 36. F_Young  |  November 12, 2014 at 7:28 am

    Off topic: Study: Pro-LGBT laws spur global economic growth

  • 37. F_Young  |  November 12, 2014 at 7:42 am

    Off topic: The LGBT Kids Who Flee Their Countries — And Their Families — For The U.S. Some of the thousands of Central American children trying to get to the United States are seeking a love and acceptance they can’t get at home.

  • 38. RnL2008  |  November 12, 2014 at 9:50 am

    So, when do we expect or can we expect SCOTUS to lift the Stay in Kansas?

  • 39. jpmassar  |  November 12, 2014 at 2:41 pm

    No more stay.

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