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BREAKING: Supreme Court asked to review Ohio, Tennessee marriage cases

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It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
UPDATED to add the petition in the Tennessee case. This post will be continuously updated.

Saturday morning update: Responses to the petitions are due by December 15, although there’s a chance they could come in early.

The first petitions for review have been filed in the Supreme Court from the Sixth Circuit marriage cases. The first petition, filed by lawyers and LGBT-rights groups such as the ACLU and Lambda Legal, asks the Court to require Ohio to recognize the legal validity of same-sex marriages performed outside of the state.

In an emailed press release, Lambda Legal wrote:

Today Lambda Legal, the ACLU and private firm Gerhardstein & Branch filed a petition asking the U.S. Supreme Court to review the Sixth Circuit Court of Appeals’ aberrant ruling upholding discriminatory bans on marriage rights for same-sex couples in Ohio and three other states. The Sixth Circuit is the only federal circuit court after the Supreme Court’s watershed 2013 Windsor ruling to uphold such bans and departs from recent decisions from the Fourth, Seventh, Ninth and Tenth Circuits, which have led to the freedom to marry for same-sex couples in many more states throughout the country.

The joint filing covers two lawsuits filed by Gerhardstein & Branch: Henry v. Hodges, joined by Lambda Legal, seeking to compel the State of Ohio to recognize the legal marriages of same-sex couples and issue accurate birth certificates, and Obergefell v. Hodges, joined by the ACLU, seeking to order the State to issue accurate death certificates to married same-sex couples.

“We have reached a tipping point, and the lives of thousands of same-sex spouses and their families hang in the balance. The Sixth Circuit Court of Appeals’ ruling shines a spotlight on our divided country, where married same-sex couples are either respected or discriminated against, depending on where they live or even where they travel,” said Susan Sommer, Director of Constitutional Litigation for Lambda Legal. “As we have learned from other historic cases like Loving v. Virginia and Lawrence v. Texas, there comes a time when the U.S. Supreme Court weighs in, and provides the answer,–on the question of marriage for same-sex couples we believe that time has come.”

Henry v. Hodges was filed in February 2014. All plaintiff couples are seeking recognition of their marriages for all purposes, from respect for their parentage of their children to how they must pay their taxes. Most urgently, they seek accurate birth certificates naming both spouses as the parents of their babies. The Ohio Department of Health, the agency charged with issuing birth certificates whose Director is the Defendant in the case, refused to issue or amend birth certificates for same-sex parents.

In Obergefell v. Hodges, the state appealed a federal court ruling that Ohio must respect the marriages of same-sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates.

“We look forward to presenting our arguments on behalf of our plaintiff families and all Ohio same-sex couples in front of the highest court in the land,” said Al Gerhardstein, Attorney for Gerhardstein & Branch. “With more than 62% of the US population residing in a state where same-sex couples have marriage equality, we must ensure that all those same-sex marriages are recognized when the cross into Ohio.”

Henry and Obergefell, demonstrate the importance of marriage to families from the cradle to the grave, from the birth of their children through the death of a spouse and beyond.

“It’s profoundly unfair for Ohio to tell these couples that their lawful marriages meant nothing and that their spouses are legal strangers. When you’re married, you’re married, no matter whether you travel or move to another state.” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender and HIV Project, “The country needs a uniform rule on respect for marriage, and only the Supreme Court can give it to us.”

Also filed today, a petition for review in Tanco v. Haslam, the challenge to Tennessee’s refusal to recognize same-sex marriages performed outside of the state. The National Center for Lesbian Rights (NCLR) is among the lawyers who filed the petition. Their press release is here:

Today, the three same-sex couples challenging the State of Tennessee’s laws excluding same-sex couples from marriage and refusing to recognize their out-of-state marriages asked the U.S. Supreme Court to hear their case after the Sixth Circuit Court of Appeals ruled that state marriage bans do not violate the U.S. Constitution.

In a 2-1 decision on Nov. 6, 2014, the Sixth Circuit upheld marriage bans in Tennessee and three other states—the first time a federal appeals court has ruled against the freedom to marry. That decision created a conflict with the four other federal appeals courts that have invalidated similar state marriage bans in recent months.

In their request to the U.S. Supreme court, the three Tennessee couples argue: “Breaking with the otherwise uniform view of the courts of appeals, a divided panel of the Sixth Circuit upheld Tennessee’s Non-Recognition Laws. The court of appeals’ holding not only denies recognition to petitioners’ own marriages and families, but also establishes a “checkerboard” nation in which same-sex couples’ marriages are dissolved and reestablished as they travel across the country. That is the antithesis of the stability that marriage is supposed to afford.”

The couples are Dr. Valeria Tanco and Dr. Sophy Jesty of Knoxville; Army Reserve Sergeant First Class Ijpe DeKoe and Thom Kostura of Memphis; and Matthew Mansell and Johno Espejo of Franklin. The couples are represented by the National Center for Lesbian Rights (NCLR), attorneys Abby Rubenfeld, Maureen Holland, and Regina Lambert, and the law firms of Sherrard & Roe PLC and Ropes & Gray LLP.

Said Jesty: “We live in fear for ourselves and our little girl because we don’t have the same legal protections in Tennessee as other families and we’re hopeful that the United States Supreme Court will resolve this issue so we no longer need to live in fear. Every day we’re denied marriage equality in our state is another day that our family’s wellbeing is jeopardized.”

Added DeKoe: “I serve this country every day so every single person can enjoy the freedoms of justice and liberty, yet Thom and I are treated unequally in Tennessee where I’m based. Like all other couples, we want to be able to protect one another, but Tennessee’s marriage ban makes it impossible for us to be a legally recognized family. Until we are fully respected, we will never have the freedom and security that I have spent my entire military career defending.”

These won’t be the only Sixth Circuit cases up for review: plaintiffs in Michigan and Kentucky have also said they’d file petitions this week. Many of the cases from those states involve not only recognition, but also the question of whether states must allow same-sex couples to marry.

Thanks to Equality Case Files for these filings


  • 1. RemC_Chicago  |  November 14, 2014 at 8:36 am

    My money's on Michigan.

  • 2. wes228  |  November 14, 2014 at 8:40 am

    Yes, I hope their petition isn't too far away. There is no way the Supreme Court is going to pick this one (no marriage performance issue at stake).

  • 3. Silvershrimp0  |  November 14, 2014 at 8:42 am

    Couldn't they just consolidate the cases and take up all the issues together, especially since the 6th issued a single opinion covering all of the cases?

  • 4. guitaristbl  |  November 14, 2014 at 8:49 am

    I wouldn't be too happy with that tbh. Certain state officials (my money is on Tennessee) will take the longest they can to file replies etc in order to slow things down, in the hopes of getting this in the next term with a possible different composition of the court. Better not add more variables to this equation and focus on one. Although it is probable that SCOTUS will pick the course of action the 6th did I am afraid..

  • 5. LK2013  |  November 14, 2014 at 9:56 am

    I don't think the Supreme Court is going to pick the course of action the 6th did. The decision by the 6th circuit stands out in its weakness, lack of reason, and flat out bias. After Windsor, SCOTUS will not issue such a lame-a$$ decision, in my opinion.

  • 6. nicolas1446  |  November 14, 2014 at 10:29 am

    I'm counting on Justice Kagan and Breyer to aggressively question the opponents of same sex marriage to shed light on the weakness of their arguments like what happened in the 7th circuit. (unfortunately Ginsburg does not speak fast enough to aggressively question which is why I'm counting more on Kagan) If the flaws of their arguments are exposed it would make it very difficult for Justice Kennedy to vote for the obviously weaker argument.

  • 7. JayJonson  |  November 14, 2014 at 3:52 pm

    The oral arguments are just a show. The Justices well know how they are going to rule before the oral arguments. The briefs are far more important than anything else. But in this case, the Justices have all made up their minds.

  • 8. nicolas1446  |  November 14, 2014 at 4:31 pm

    Kind of, but if the many flaws and weaknesses in the arguments of the opponents are exposed, it would make the court look very foolish to go against over 30 federal judges and 4th circuit courts.

  • 9. DJSNOLA  |  November 14, 2014 at 8:43 am

    I think its important for them all to file, regardless right? Because that way there is no question of an en banc hearing and the supreme court punting again on the issue?

  • 10. RemC_Chicago  |  November 14, 2014 at 1:47 pm

    Sure, but MI was the only case with a trial and covers all the bases, I believe. Plus, it emphasizes the harm to the children of the DeBoer couple.

  • 11. guitaristbl  |  November 14, 2014 at 8:44 am

    I liked their petition, it is so concentrated on children's rights (especially the almost too sobbing conclusion) that they seem to fully understand where they should focus in order to get Kennedy's vote here.
    That said, a petition dealing only with the recognition issue is not the ideal vehicle to go to SCOTUS.
    I hope the Michigan case is filed soon, it needs to be the one spearheaded here for grant of review from SCOTUS. They have to be fast in filling, since we do not know if state officials will delay answers etc in order to delay procedures (they will most likely). The clock is ticking..

  • 12. Fledge01  |  November 14, 2014 at 9:35 am

    I agree. I think the recognition of same sex marriages performed out of state is the strongest of the legal claims. This is because no one can deny that these couples are legally married someplace in the U.S. Travel should not change that, especially when such travel is required by being relocated in the armed services. Then, after this obvious truth is recognized and states are at least required to recognize marriages performed legally outside their state, the legal issue changes a bit to address whether the state must issue licenses itself. If the state is already forced to recognize outside marriages, then it becomes discriminatory to deny it to your own citizens.

  • 13. guitaristbl  |  November 14, 2014 at 9:39 am

    You are correct but we do not want SCOTUS taking the easy way out by solving the recognition issue only for now and leaving the issuance of licenses by the state for the future for instance.

  • 14. nicolas1446  |  November 14, 2014 at 9:44 am

    Are heterosexual cousin marriages recognized in every state? Because Judge Sutton said that states do not have to recognize valid marriages performed in other states and he mentioned marriages between cousins. I would hate for that fact to be used to refuse to recognize same sex marriages.

  • 15. sfbob  |  November 14, 2014 at 10:22 am

    It is an incredibly sloppy argument for Sutton to have made (like most of his arguments were). Doing a casual look-up on Wikipedia it appears that approximate half of all states don't recognize first-cousin marriages performed out-of-state.

    But the reason it legally lazy to make this comparison is that, any way you look at it, first cousins have some well-recognized relationship to each other before they marry. That readily distinguishes their situation from that of gay or lesbian couples.

  • 16. Eric  |  November 14, 2014 at 11:02 am

    It's what refutes the consanguineous marriage claims of the anti-gay. The legal purpose of marriage is to unite legal strangers. Kin, by definition, are not legal strangers.

  • 17. Fledge01  |  November 14, 2014 at 11:06 am

    I found a wiki page that shows only three states have laws that void all first cousin marriages performed out of state. There are others that also void out of state marriages of first-cousins for current citizens of that state (ie: going out of state just to get married). Also, I saw that although most states will not act to initiate the recognition of a common law marriages, all states will recognize common law marriages that have been previously recognized by some other state first.

    Also, just because those laws are in the books regarding non-recognition of first cousins in all circumstances. I do not know if there is a SCOTUS ruling on not recognizing first-cousin marriages that have been recognized elsewhere before the married couple moved into the new state. Those just might be laws on the books, but never really tested legally in practice.

  • 18. Mike_Baltimore  |  November 14, 2014 at 1:02 pm

    1. A link to that 'wiki' page, and

    2. Any corroborating evidence?

  • 19. Mike_Baltimore  |  November 14, 2014 at 10:58 am

    Ohio recognizes legal marriages from all states except one type – where the spouses are of the same gender. Sutton is incorrect on what he stated.

    There are certain types of marriages that are not recognized if performed IN the state of Ohio, but if legally performed in another state, Ohio recognizes such marriage, with one exception – where the spouses are of the same gender.

  • 20. Raga  |  November 14, 2014 at 3:39 pm

    Ohio recognizes them, and Sutton didn't contradict that, so I disagree with Mike_Baltimore that Sutton was incorrect on the facts he stated (he cited an Ohio Supreme Court case that said, hypothetically, that Ohio need not recognize all marriages performed in other states). However, Sutton was wrong in his application of the fact to the current case, because that was only a hypothetical statement from the Ohio Supreme Court.

    Cousin marriage is illegal/criminal in some states, such marriages performed in states that allow them are void or not recognized in some states. See the following Wikipedia page (the map and table below it) for details:

  • 21. nicolas1446  |  November 14, 2014 at 4:35 pm

    Well it's worrying that if same sex marriage ends up being recognized by every state in the nation, what can stop married cousins from filing a lawsuit suing the state for not recognizing their marriage? See of course the way I see it is that allowing same sex marriage is treating heterosexuals and homosexuals the same. That is all. All the other marriage barriers stay the same. But of course people will interpret allowing same sex marriage the wrong way and people might file lawsuits like that.

  • 22. Raga  |  November 14, 2014 at 7:53 pm

    The way I see it, bans on cousin marriage would have to stand or fall on their own merits, just like bans on polygamous marriages. I don't see a majority of the Supreme Court entertaining a slippery-slope argument. If they did, they should have started way back in 1967 – in that sense, the slope has already slipped decades ago.

    I don't know that anyone has challenged a state's ban on licensing or recognizing cousin marriage under the US Constitution. If so, I'd be interested to see what arguments the State could offer to survive strict scrutiny.

  • 23. RobW303  |  November 14, 2014 at 9:14 pm

    Almost every legislative or judicial change can be viewed as a "slippery slope". As you rightly point out, each subsequent change must rest on its own merits (although similar lines of argument will often apply). A major purpose of law is to define reasonable, equitable limits in the shifting sands of societal change. That one change might make another more possible is insufficient reason for rejecting it despite its own merits.

  • 24. nicolas1446  |  November 15, 2014 at 8:34 am

    Well see I have arguments defeating the slippery slope argument except in what I saw the petition for cert that TN sent to the court. There plaintiffs argued that under the right to travel, states have to recognize their out of state marriages. I hate that they used that argument because then using that, all states may be forced to recognize the marriages of all states which in turn takes marriage away from the states.

  • 25. RobW303  |  November 15, 2014 at 9:39 am

    Interestingly, the lawyer for the SD plaintiffs tried that argument in the brief opposing the motion to dismiss the case. The judge reasoned against it and dismissed that count (the right to travel)—paraphrasing badly, that loss of some privileges or degree of benefit doesn't constitute a violation of the right to travel.

  • 26. nicolas1446  |  November 15, 2014 at 9:48 am

    That is great because I don't see why they even made that argument. Bans on recognizing same sex marriage can fall on equal protection basis, on due process basis, and on sex discrimination basis. The right to travel argument was unnecessary.

  • 27. SeattleRobin  |  November 14, 2014 at 9:20 pm

    I'm not going with the slippery slope thing. As Raga said, recognizing first cousin marriage stands or falls on its own.

    But what's the problem with a married couple filing such a suit? The issues for them are the same. If they are legally married, their marriage should not be voided just because they move to another state for work.

    I suspect that when that happens, the couples just continue on as married. The instances in which a couple has to actually prove that they are in a valid marriage are exceedingly rare. Since such couples never get questioned, there's no need to bring a suit challenging the statute.

  • 28. nicolas1446  |  November 15, 2014 at 8:40 am

    Well marriage is left to the states, having all states recognize all marriages no matter what, is essentially taking that power away from the states. And if that happens, it will be gay marriage that caused that. Yes a state may not define marriage in unconstitutional ways like bans on gay marriage or interracial marriage but for example bans on like incest marriage are constitutional so forcing a state to recognize an incest marriage is infringing on their right. At least that is what I think. The petition for cert in TN is claiming that the right to travel means all states need to recognize their marriage. I wish they had not made that argument. First because bans on same sex marriage will fall on the other arguments, so it was an unnecessary argument, plus it opens the door to states having to recognize marriages that they don't have to under the constitution.

  • 29. RobW303  |  November 15, 2014 at 9:41 am

    Loving didn't cause that; why should same-sex couples marrying?

  • 30. nicolas1446  |  November 15, 2014 at 9:49 am

    Well I just hope the court defeats the slippery slope argument very well so that everyone is clear that nothing will change.

  • 31. SeattleRobin  |  November 17, 2014 at 2:29 am

    I never said all states should have to recognize all marriages no matter what. What I'm saying is that non-recognition technically affects various categories of marriage in the same way. If it causes a problem, then those couples have to bring suit against the state. But their arguments will only partly overlap same-sex couple arguments, because the proffered state reasons are different. I would certainly back any married cousins who want their marriage recognized and brought such a suit.

    In actual practice though, such marriages are virtually undetectable. If I married my male cousin and moved to a new state that doesn't recognize such marriages, but told everyone we're married, they would accept that. No one would even think to ask if we are cousins. I'm guessing this is the reason it's not challenged in court.

    Same-sex married couples can't fly under the radar like that though, since the "infraction" is obvious.

  • 32. Mike_Baltimore  |  November 14, 2014 at 7:38 pm

    So, if a heterosexual couple from Pennsylvania (where 1st cousin marriage is illegal) gets married in New York state, or New Jersey, or in Maryland (all states where 1st cousin marriage is legal), Pennsylvania recognizes such a marriage. If then that couple needs to move to Ohio (where 1st cousin marriages are not allowed to take place) because of the job of one or both, the marriage is not recognized?

    As I've stated before, the ONLY thing the wiki map you cite shows is those jurisdictions that will or will not allow such marriages to take place IN THE JURISDICTION. It says NOTHING about whether the state does or does not recognize those marriages legally performed out of state.

    If you observe the explanation below the map you cite, you will see that Ohio has NOT criminalized first-cousin marriage unlike the states of TX, OK, SD, ND and NV.

    And if you scroll down further on that page, you will find a table that has various column headings, such as the 3rd column ('First-cousin marriages void'). If you scroll down to Ohio, you will find the column contains 'No', which means first-cousin marriage cannot be entered into IN Ohio, but if legally entered into in another jurisdiction, Ohio will not void the marriage. The next column's heading is 'Out-of-state marriages by state's residents void'. Scroll down to Ohio, and you will see that Ohio does NOT void such marriages.

    IF Ohio doesn't recognize any marriages legally performed outside Ohio except same sex marriages, please provide a valid citation of such.

  • 33. Raga  |  November 14, 2014 at 7:50 pm

    Mike, I'm starting to get frustrated, as this is the second time we're arguing this. See my comment that you replied to. The very first line I wrote is "Ohio recognizes them" – so why are you arguing as if I'm claiming that Ohio doesn't recognize cousin marriages? In the hypothetical presented in your first paragraph, Ohio would surely recognize the marriage.

    Your second paragraph with caps used to emphasize your point:
    "As I've stated before, the ONLY thing the wiki map you cite shows is those jurisdictions that will or will not allow such marriages to take place IN THE JURISDICTION. It says NOTHING about whether the state does or does not recognize those marriages legally performed out of state."

    – First of all, I never claimed Ohio criminalized first cousin marriage. And secondly, please, can't you see that I said look at the map AND the table below? The information on the recognition of marriages performed out-of state is present in the table, as you yourself have noticed and point out later in your comment!

    "IF Ohio doesn't recognize any marriages legally performed outside Ohio except same sex marriages, please provide a valid citation of such."

    – Again, for the last time, I'm NOT claiming that Ohio doesn't recognize certain marriages performed out of state (other than same-sex marriages).

  • 34. Mike_Baltimore  |  November 15, 2014 at 1:32 pm

    If you are not claiming that Ohio doesn't recognize all marriages, why keep bringing up the wiki map that shows which jurisdictions allow first-cousin marriage, and which ones don't, WITHIN the borders of that jurisdiction? The map shows which jurisdictions allow first-cousin marriage to be legally performed in the jurisdiction, and which ones don't – nothing else. It says little to nothing about recognition of such marriages, and you keep implying it does.

    Maybe you need to find a different map, one that shows which jurisdictions do not allow first-cousin marriage WITHIN THE JURISDICTION, but recognize legal marriages performed in another jurisdiction?

    For instance, Pennsylvania does not allow first-cousin marriage, but Maryland does. A selling point for 'wedding chapels' in Maryland up for sale is that most are located on or near the MD/PA line, and thus are 'close' to PA first-cousins who want to get married. And if a PA couple who are first-cousins get married in MD, if they move back to PA, PA recognizes them as married for ALL purposes – medical decisions, tax purposes, inheritance, etc.

  • 35. Raga  |  November 15, 2014 at 2:07 pm

    "If you are not claiming that Ohio doesn't recognize all marriages, why keep bringing up the wiki map that shows which jurisdictions allow first-cousin marriage, and which ones don't, WITHIN the borders of that jurisdiction?"

    I bring up the whole Wiki page including the table (NOT JUST THE MAP) to support the following two points:
    (a) MAP => In some states, cousin marriages are illegal/criminal.
    (b) TABLE => In some states, out-of-state cousin marriages are void or not recognized.

    "The map shows which jurisdictions allow first-cousin marriage to be legally performed in the jurisdiction, and which ones don't – nothing else. It says little to nothing about recognition of such marriages,"

    Completely agree with you. As I said above, the map is only meant to support my point (a) above.

    "and you keep implying it does."

    Nope. I pointed generally to the WHOLE PAGE, which includes the map AND the table. I NEVER said look at the map to see which states recognize cousin marriages.

    "Maybe you need to find a different map, one that shows which jurisdictions do not allow first-cousin marriage WITHIN THE JURISDICTION, but recognize legal marriages performed in another jurisdiction?"

    Perhaps such a map exists somewhere, but I think that information is contained within the table below the map. I never claimed that the map shows everything. The map and the table show everything.

  • 36. sfbob  |  November 14, 2014 at 7:52 pm

    I think you misunderstood what Raga said. He says that Ohio will recognize any marriages performed out of state with the sole exception of same-sex marriages. This assertion was included in the Ohio plaintiffs' petition for cert and I don't think their counsel would lie or even stretch the truth in this context.

    Sutton had claimed that "some" states wouldn't recognize first-cousin marriages. That may be true but of course was really quite beside the point. Sutton was stating this as a hypothetical in his opinion but the fact is that it really doesn't make a great deal of sense to make that sort of hypothetical argument when the state(s) in question DO in fact recognize all sorts of marriages that they wouldn't solemnize themselves.

  • 37. robbyinflorida  |  November 14, 2014 at 12:15 pm

    Wouldn't this be a challenge to section 3 of DOMA?

  • 38. sfbob  |  November 14, 2014 at 12:41 pm

    It would be a challenge to Section 2 of DOMA. Section 3 ended with Windsor. Section 2 doesn't mean much; it doesn't require states not to recognize marriages; it arguably gives them cover if they wish to deny recognition but we already know that without a non-animus-based justification, with any challenge Section 2 would crumble in a moment.

  • 39. RnL2008  |  November 14, 2014 at 12:56 pm

    Section 2 of DOMA goes directly against the Full Faith and Credit Clause and in my opinion should have been tossed the first time a recognition case of our marriages from another State came up!!!

  • 40. wes228  |  November 14, 2014 at 2:45 pm

    The Full Faith and Credit Clause grants power to Congress to determine how out-of-state records, acts, judgments, etc. must be recognized. Congress chose to exercise that power.

    DOMA Sec. 2 does not violate the Full Faith and Credit Clause, but it does violate the 14th Amendment.

  • 41. RnL2008  |  November 14, 2014 at 3:01 pm

    I disagree with you……how can the Full Faith and Credit Clause work for some public records but NOT all public records like marriage licenses?

  • 42. Eric  |  November 14, 2014 at 3:35 pm

    Because Congress is authorized by the Constitution to specify how those public records and acts are recognized.

    Article IV, Section 1:

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    What Congress can't do is make effects that violate the 5th Amendment.

    Personally, I'd like to see a bill of attainder ruling against DOMA and the marriage bans.

  • 43. sfbob  |  November 14, 2014 at 5:18 pm

    Full Faith and Credit applies to judicial acts (divorce, child support agreements and the like). A marriage is not a judicial act. The principal that applies to marriage is "comity" which is similar. On the one hand, Full Faith and Credit is subject to what is known as the "public policy exception and you will note that some of the state marriage bans actually include wording to the effect that "it is the public policy of this state that (and so on)…" The catch is that they think this gets them off the hook. The fact is however that the public policy exception cannot save them, first of all because it doesn't apply to marriages which are simple applications of law, not judicial acts and secondly because the "public policy" invoked by those statements is still subject to constitutional review. Simply stating that something is contrary to public policy does not guarantee that said policy will withstand any level of constitutional scrutiny. As was noted in, I believe, Romer vs Evans, a classification (in this case, that certain marriages aren't to be recognized, in the case of Romer that certain groups aren't worthy of civil rights protections) undertaken simply for the sake of making the specific distinction, fall afoul of the Constitution. If someone questions the policy the state has to have a reason other than "because we feel like it."

  • 44. RnL2008  |  November 14, 2014 at 6:50 pm

    Thanks for the explanation:-)

  • 45. sfbob  |  November 14, 2014 at 7:54 pm

    As usual, I HOPE I'm correct; I assume that someone with a legal background (con law would be ideal here) will correct me if I've got it wrong.

  • 46. FredDorner  |  November 14, 2014 at 8:38 pm

    "how can the Full Faith and Credit Clause work for some public records but NOT all public records like marriage licenses? "

    Here's a detailed explanation:

  • 47. Mike_Baltimore  |  November 14, 2014 at 7:48 pm

    There have been several SCOTUS cases involving Full Faith and Credit (FF&C) claims, but strange (or not) as it may seem, there has been no case before SCOTUS directly involving FF&C and ME. The closest may have been the 'Baker' case, but SCOTUS, in effect, dismissed the request for cert. for 'Baker'.

  • 48. Mike_Baltimore  |  November 14, 2014 at 12:56 pm

    Section 3 of DoMA dealt with Federal recognition of ME, and the 'Windsor' case was about Section 3 of DoMA, and ONLY Section 3. The 'Windsor' case had nothing to do with the recognition of ME on a state level – that is in Section 2 of DoMA.

  • 49. RobW303  |  November 14, 2014 at 2:11 pm

    The problem with this approach is that there are already several types of (opposite-sex) married couples whose marriages are NOT recognized nationwide, and the Supreme Court has never ruled that they must be. This argument actually favors the states' assertion that defining marriage does not fall within the federal domain.

  • 50. jjcpelayojr  |  November 14, 2014 at 2:41 pm

    Wouldn't plaintiffs need to find first cousins married outside of the state who filed in-state taxes as married? Are those matters a public record?

    That would prove that despite the law being on the books, it's not being enforced.

  • 51. nicolas1446  |  November 14, 2014 at 9:39 am

    I know that focusing on the children is a way to get Kennedy's vote but that gives the idea that the only reason gay people got the right to marry was because they were raising children. It kind of makes the gay people that choose not to have children as less deserving of the right.

  • 52. guitaristbl  |  November 14, 2014 at 9:42 am

    If the right to marry is upheld by SCOTUS, it won't be just for the couples who have or will have children, it will be for everyone. The argument about children though is a good one, since it is one that will certainly reasonate with justice Kennedy, the crucial swing vote on the issue.

  • 53. nicolas1446  |  November 14, 2014 at 9:52 am

    Well that makes it seem that if gay adoption by gay people was not allowed in any state that gay marriage would have lost at the Supreme Court.

  • 54. Eric  |  November 14, 2014 at 11:05 am

    Or, it shows the bans on marriage are not narrowly tailored by over-inclusively punishing children. Children have due process rights too.

  • 55. RobW303  |  November 14, 2014 at 2:06 pm

    It also combats the "responsible procreation" argument by shifting the focus from begetting kids to raising them however they came into being (surely the more important aspect for societal functioning).

  • 56. JayJonson  |  November 14, 2014 at 3:55 pm

    To say nothing of the "marriage is child-centric" argument.

  • 57. RobW303  |  November 14, 2014 at 9:50 pm

    Unfortunately, I see it playing too heavily into the "marriage is child-centric" argument. I too wish that the child aspect were downplayed somewhat in order to place more emphasis on equal treatment regardless of children. But when the protection of children is raised, it should be hammered home that it's not about biological origin but family stability and support, which the marriage exclusion directly contradicts.

  • 58. Eric  |  November 14, 2014 at 10:59 am

    Recognition will come up elsewhere. If the state can't refuse to recognize the legal and valid marriage of a same-sex couple, why would a business (a legal fiction created by the state) be able to?

  • 59. haydenarwen  |  November 15, 2014 at 5:21 pm

    Received word earlier today regarding MI…… 12:29 PM (7 hours ago)

    to me

    Judge Lawson's opinion is GREAT…..thanks for sending it along. The Appeal to the Sup. Ct. is in.

  • 60. DaveM_OH  |  November 14, 2014 at 8:45 am

    Also in Ohio:
    Senior (not Chief) Justice Paul Pfeifer (R) of the Ohio Supreme Court gave an interview in which he chastised Judge Sutton and concluded that the Ohio ban on equal marriage does not belong in the Constitution. Surprise, surprise, his daughter is gay. Pfeifer joins Portman and Petro as prominent Republicans in Ohio with gay kids who've "evolved" on the issue of marriage equality.

  • 61. guitaristbl  |  November 14, 2014 at 8:46 am

    He also said the courts should not decide it though, it should be the people and the legislature.

  • 62. DJSNOLA  |  November 14, 2014 at 8:48 am

    Yeah I dont understand the whole courts should not decide it meme… these are unalienable rights that are taken from a minority by a majority.. there isnt a more relevant reason for Judicial review than for that very issue.

  • 63. MichaelGrabow  |  November 14, 2014 at 9:28 am

    No one with a functioning brain understands it.

  • 64. Eric  |  November 14, 2014 at 11:07 am

    It's a common theme among judges. They want to get paid to do nothing, then bitch at the parties when there is actual adjudicating to do.

  • 65. RLsfba  |  November 14, 2014 at 12:52 pm

    Let's hope the daughter is a lawyer and slaps Pfeifer up the side of the head, and that she's here with us.

  • 66. nicolas1446  |  November 14, 2014 at 9:56 am

    I don't understand how he was moved by the dissent that Judge Daughtrey wrote yet he still thinks the voters should decide. The whole point of the dissent was that the issue of gay marriage should not be left up to voters. He obviously misunderstood it.

  • 67. sfbob  |  November 14, 2014 at 10:23 am

    I agree. Makes no sense at all. "Yeah, it's unconstitutional but we should just wait for the voters to be comfortable with the whole thing." Does he not understand the point of the judiciary in this context?

  • 68. Mike_Baltimore  |  November 14, 2014 at 8:32 pm

    His opinion seems to mirror the majority of the people who inhabited the state of Georgia in the 1960s.

    Congress passed the Civil Rights Act of 1964 in July 1964, and Title II of the law was immediately challenged by the Heart of Atlanta Motel. SCOTUS decided against Heart of Atlanta Motel, in December 1964. In 1966, the voters of Georgia elected a very vocal segregationist (Lester Maddox) as Governor (owner of the Pickrick Restaurant) who also challenged Title II of the CRA of 1964.

    (Interesting side note: the Heart of Atlanta Motel case went directly from the District Court to SCOTUS, skipping the Court of Appeals. It is rare that Appeals Courts are skipped, but it has happened.)

  • 69. Rik_SD  |  November 14, 2014 at 10:06 am

    so might we have any chance in state courts for the 6th circuit states?

  • 70. sfbob  |  November 14, 2014 at 10:26 am

    It seems unlikely. I believe they all have their bans written into their states' constitutions. While state courts can rule on claims based on the US constitution, since the 6th Circuit's wretched decision is already a precedent in all of those states, that would control any such ruling in any of those states. The issue can't really be litigated again in the state courts unless they find some way of arguing that the state's constitution itself presents a bar to the state's own constitutional amendments. That seems very unlikely.

  • 71. Rik_SD  |  November 14, 2014 at 10:29 am

    Thanks for the info.. so does federal court precedent control state courts?

  • 72. sfbob  |  November 14, 2014 at 10:32 am

    As far as I can understand it (usual caveat: not a lawyer), the circuit court's interpretation of federal law would be binding on state courts.

    For the most part I suspect the state Supreme Courts within the 6th Circuit would happily rule against marriage equality anyway so they aren't going to go out of their way to rule otherwise. There may be some exceptions of course.

  • 73. wes228  |  November 14, 2014 at 10:32 am

    Only Supreme Court precedent is binding on state courts. The Michigan state judiciary could examine the federal constitutional claims without being bound by the 6th Circuit.

  • 74. Rik_SD  |  November 14, 2014 at 10:37 am

    Thank you both for your input

  • 75. sfbob  |  November 14, 2014 at 2:13 pm

    I stand corrected. Of course no court would be precluded from citing the Sixth Circuit's decision in their own opinion if they felt it would help them.

  • 76. RnL2008  |  November 14, 2014 at 2:34 pm

    But the ruling in the 6th WON'T help or change the ruling in either the 9th or the 4th circuit court of appeals and to site such a bigoted ruling like the 6th was….MUST show pure animus towards a group of individuals that only want what others already take for granted….the right to marry the person of their choosing WITHOUT being told what gender that person must be!!!

  • 77. Jen_in_MI  |  November 14, 2014 at 10:30 am

    As far as Michigan goes, hell to the no! Our state courts are packed with right-wing hacks. Zero chance there.

  • 78. ijsnyder  |  November 14, 2014 at 8:58 am

    I'm having a hard time understanding why this case would be appealed to SCOTUS when Michigan is clearly a superior vehicle.
    I'm afraid that the recognition vs. celebration distinction could give SCOTUS a chance to kick the can down the road.
    Possible explanations (sheer guesswork):
    -various lawyers/plaintiffs want to be in on a landmark civil rights case likely to succeed
    -old-fashioned duty to the client: If you lose, you appeal. (I imagine this is why Boies and Olson, if I recall correctly, opposed SCOTUS review – even though they surely wanted to argue the Prop 8 case, you don't ask for review of a case you've won – Though I believe this changed with Kitchen.)
    -If SCOTUS reverses on DeBoer (sp?) and the appeal has already been filed in OH, perhaps this allows SCOTUS to make an order applying to OH?
    -Potential for SCOTUS to group cases?
    Open to thoughts – I don't presume to be any kind of expert.

  • 79. Ryan K (a.k.a. KELL)  |  November 14, 2014 at 9:20 am

    Similiar to how in the 10th CA where we had both the Utah and Oklahoma cases, each case and state did their appeal to SCOTUS as a writ of certiorari to have the case heard. As some have mentioned, the lawyers all got together from the four states and appeared to have agreed to get them all filed within a week or two, which then I believe kicks off a 30 day period for the other side to supply a response brief. So we need these all filed fast, then the states to file briefs, and get this into a SCOTUS conference by December 12, 2014 (the last one before January 2015).

  • 80. nicolas1446  |  November 14, 2014 at 9:36 am

    I agree that this appeal could result in SCOTUS delaying same sex marriage by taking this case and only affirming that states must recognize same sex marriage instead of going all the way and saying all states must allow same sex marriage. The Michigan case is obviously the superior one here. It had a full trial at the district court and the opinion was written by a republican appointed judge.

  • 81. Raga  |  November 14, 2014 at 10:16 am

    But that would still leave the split on the right to marry for same-sex couples intact. It's possible the Court might deal with the recognition cases this term and the right to marry cases either next term or remanding to the Sixth with instructions to reconsider in light of their recognition ruling, but I don't see them denying cert altogether on the right to marry question.

  • 82. wes228  |  November 14, 2014 at 11:02 am

    They have to keep the case going. If they don't petition for rehearing en banc or for cert, then that means the case is over.

    They did not petition for rehearing en banc because the Supreme Court might have delayed a decision on cert for them and the other cases to see if the 6th Circuit decided to take it up again.

    What will most likely happen is the Supreme Court will hold onto this cert petition, neither granting it nor denying it, and take up the Michigan case.

  • 83. Mike_Baltimore  |  November 14, 2014 at 11:28 am

    It's similar to many major cases:

    'Brown' was one of many cases that were appealed to SCOTUS when SCOTUS ruled on separate but equal.

    'Loving' was one of many cases that were appealed to SCOTUS when SCOTUS ruled on miscegenation laws.

    When Windsor was appealed, SCOTUS selected her case rather than the also appealed cases of:
    Gill v. OPM and Mass. v. U.S. Dept. of H.H.S
    Golinski v. OPM
    Pedersen v. OPM
    Cardona v. Shinseki
    (There was a lot of discussion here as to whether the Windsor case should have been selected, or the Gill case.)


    The advantage of having multiple cases appealed is that SCOTUS has multiple cases from which to select. Just because a case has been appealed to SCOTUS does NOT mean that other cases can also be appealed.

    Maybe this article will assist you?
    (… – the article was written prior to the request for cert in the Windsor case being filed. SCOTUS held the 'Gill', 'Golinski' and several other certs until the day after Windsor was decided, then dismissed them.)

  • 84. RobW303  |  November 14, 2014 at 2:32 pm

    Speaking of Windsor, are there cases challenging the still-standing DOMA Section 2 (which has some relevance to the bans, doesn't it?) If so, how far along are they? If no, why not?

  • 85. Mike_Baltimore  |  November 14, 2014 at 2:52 pm

    All the current ME cases are essentially challenging DoMA Section 2. (Section 1 is basically the pro-forma statement that 'the title shall be')

  • 86. ijsnyder  |  November 15, 2014 at 12:43 pm

    I expect wes228 has the right answer.
    I cannot see why SCOTUS would want more options if one case clearly has a finer pedigree.
    However, it makes perfect sense that these lawyers need to keep the cases active so that their clients can be given relief.

  • 87. hopalongcassidy  |  November 15, 2014 at 2:22 pm

    And their clients are given relief…of their bank accounts.

  • 88. Jaesun100  |  November 14, 2014 at 9:17 am

    Well now they officially have a case in front of them let's see if this affects South Carolina it shouldn't but I suspect somehow it will if there is an out for the Attorney General there ..,.,

  • 89. robbyinflorida  |  November 14, 2014 at 12:33 pm

    Not after what happened in Kansas.

  • 90. Jaesun100  |  November 14, 2014 at 12:36 pm

    this case wasn't officially before the Supreme Court when they denied the Kansas stay though .,,,

  • 91. BillinNO  |  November 14, 2014 at 9:34 am

    6th District is a can of worms- I vote for Michigan.

  • 92. Zack12  |  November 14, 2014 at 10:24 am

    I want the MI case as well.
    SCOTUS should not be able to punt and issue a partial ruling. It should be all the way.

  • 93. dorothyrothchild  |  November 14, 2014 at 11:00 am

    Just to clarify, Mississippi could come at any time now, correct?

    Interesting that the wiki map has changed Missouri once again, which seems to happen on an almost daily basis, but the 3 colors they have now seems the most accurate depiction of their convoluted situation.

  • 94. Mike_Baltimore  |  November 14, 2014 at 12:20 pm

    NBC News is reporting that attorneys in all the other cases that were recently before the 6CA will appeal by the end of today (November 14).

    NBC News also states "the case[s] could be before the justices by mid-to-late January. If the court agrees by then to hear [them], the issue would be argued during the current Supreme Court term."

  • 95. franklinsewell  |  November 14, 2014 at 12:44 pm

    Here's a link:

  • 96. Alphazip  |  November 14, 2014 at 1:15 pm

    "Dana Nessel, an attorney for the plaintiff same-sex couple in Michigan, told the Washington Blade Thursday the petition is likely to be filed Monday, 'but that is not written in stone.'" – See more at:

  • 97. Mike_Baltimore  |  November 15, 2014 at 3:22 pm

    From the November 14, 2014 'Washington Blade':

    "Attorneys for each of the plaintiff same-sex couples in the Sixth Circuit had pledged to file petitions to the Supreme Court upon the ruling against them, but the Michigan and Kentucky lawyers haven’t yet declared they’ve acted. These lawyers have said the petitions should be filed either later Friday or Monday."
    (Final paragraph of the article at:… )

    Likely is not a guarantee, just as probably is not a guarantee.

    As I write this, it is Saturday evening, just after 6:00 PM (ET). There are still 30 or so hours until Monday and the attorneys could file the request for cert between now and then, then make an announcement before the court opens Monday morning. Then again, they may file on Monday (either while court is still in session, or Monday after the court closes for the day).

    From the Supreme Court web site:
    The Supreme Court ". . . is open to the public Monday through Friday, from 9:00 A.M. to 4:30 P.M., except on federal holidays. The building is closed at all other times, although persons having legitimate business may be admitted at other times when so authorized by responsible officials." Filing of a request for cert, brief, etc., is official and legitimate business.

  • 98. Dann3377  |  November 14, 2014 at 12:39 pm

    I find it very interesting all the different scenerios that people come up with as a result of the 6th's ruling. IMO, I sincerely doubt the SC will leave the number of ME states at 35 or so nor will they take away marriage rights to states already given the green light on. It's just not logical nor is it realistic to think this can work. People get transfered for their jobs, move to take care of aging parents, military personnel relocate, the list goes on and on and on. Everything points to a positive ruling by the end of this term. Now is the time for the SC to rectify this situation.

  • 99. RnL2008  |  November 14, 2014 at 12:41 pm

    Okay….you folks should read this…….a little funny, but right on the money:

  • 100. hopalongcassidy  |  November 14, 2014 at 1:00 pm

    It isn't a little funny, it's a whole bunch funny!!!

  • 101. RemC_Chicago  |  November 14, 2014 at 1:43 pm

    Thanks, Rose. It speaks directly to the strident, insistent voices of the anti-gay pack. Methinks they doth protest too much which always makes me wonder about them…

  • 102. RnL2008  |  November 14, 2014 at 1:47 pm

    You're welcome……and it does explain that it's NOT a fear of GAYS AND LESBIANS, but a fear of being one…….which, just goes to show their ignorance or bigotry!!!

  • 103. F_Young  |  November 14, 2014 at 2:28 pm

    While the original definition of homophobia indeed was the fear of being a homosexual, today the term is mainly used to mean hatred or disgust toward homosexuality and homosexuals.

    Like the term xenophobia, homophobia does not refer to a phobia, but unlike xenophobia, homophobia involves disgust or hate, not merely prejudice, stereotypes, distrust or belittling (that is heterosexism).

  • 104. RQO  |  November 14, 2014 at 2:10 pm

    I am laughing, Rose, because when the dam breaks, it floods. I was the last person on earth to notice I am gay, but oh SO. I surrendered and now freely admit I was born a fussy old queen. My (biological even) daughter is L and butch and ex-cop to prove it, with excellent taste in vintage men's suits thanks to her parents. And while Hitler-youth North German/Swedish genetically as can be, we are happy to mention (for backup) our black, Latino, and East Indian married-in close relatives, and that we have a Jewish surname. (We were all supposed to be suburban Republicans in the country club, but THAT didn't work out). Put the two of us in a room together, and watch the crowd react. All they can guess is that between the two of us we have everyone pegged down to their credit report and underwear. Everyone is very nice to us. Guess they want to live to see another day.
    On a non-frivolous note, I wish to say that inter-religious (first) and inter-racial marriage has probably been what has held the Republic together, though today's ultra-polarized politics obscures that. Marriage equality, I HOPE, will serve the same purpose for us. Parents who cannot completely reject their children – or grandchildren – seldom can completely reject, forever, their children's spouses. But with us as a tiny minority, I always have my fears. And while helpful, marriage is not for everyone. I am worried ENDA is going to be tougher than ever to get passed as ME backlash has clearly started.
    You always mention STUPID. Kind of you. I'm old enough with too many past memories (one bashed guy in a wheelchair, still). I think HATEFUL. Not constructive, I don't mention it to my tea-party neighbors, etc., but there's the turd with which we've led our lives.

  • 105. RnL2008  |  November 14, 2014 at 2:24 pm

    Thanks for sharing, I guess in reality…we all have a past that helps make us who we are……a very close friend of mine was almost paralyzed from the neck down when she was hit by a drunk driver who happened to be Hispanic……..both he and his girlfriend jumped back across the border to avoid prosecution……..for my dear friend, well she passed 1 year, 1 month after her accident…….it was my feelings for her that led me to come to terms with who I am……still today, I think of her often and miss her dearly……anyways, back to my point…….I have issues with Hispanics who are also illegal immigrants in this Country…….and though I try to be more politically correct…..every now and then, I slip up…!!!

  • 106. RemC_Chicago  |  November 14, 2014 at 1:40 pm

    I can't find the earlier comment that included this question: "Are the cases in Georgia and Alabama officially on hold while the Florida appeal is being heard, or are the district courts just foot-dragging?"

    I wrote to Georgia Equality and asked them to provide an answer to the question. Here it is:

    The answer is actually yes and no. Here’s a quick summary of where things stand The state defendants in Georgia have moved to dismiss the case, so the judge is still at the preliminary stage of determining whether he will allow the case to proceed to the merits. The motion to dismiss has been fully briefed since Oct. 22. No hearing will be held; we’re simply waiting for a ruling from the judge. The remainder of the case has been stayed until the judge issues this ruling. He’s not under an obligation to rule on any particular time line, although we’re hopeful that the ruling will come soon.

  • 107. Jaesun100  |  November 14, 2014 at 1:46 pm

    Montana will get a ruling without a hearing

  • 108. Mike_Baltimore  |  November 14, 2014 at 1:47 pm

    Off topic.

    Can it get any worse in Florida? Looks like the state is now taking retribution on same sex couples:

    From the 'Advocate':
    'Florida DMV Threatens Driver's Licenses of Married Same-Sex Couple'
    (… )

  • 109. RnL2008  |  November 14, 2014 at 2:15 pm

    They should and my guess is they will win…….this is just BLATANT discrimination and the DMV in Florida should know it as well.

    My wife had a similar issue here just before we got married……..back in 1986, I changed my last name with a self help book and had it notarized…..bam, no problem and I was in the Military at the time…….then again in 1994, I basically did the same thing adding then my partner's last name to mine as a hyphen last name……so, I figured it would work for my wife……well, my name changes were done prior to 2001 and things had changed dramatically about self name changes without court intervention……so, we made a copy of my paperwork, then whited out my name and typed her's……got it notarized and took it to DMV…….they had no issues and changed her name…….then we went to Social Security and that's were the problem began……Social Security WOULDN'T accept the notarized document as proof………and because she didn't have her divorce decree with her from a previous marriage, DMV WOULDN'T change her name back……basically, she was in no man's land…a driver's license in one name and a Social Security card in the other……..we finally had to pay like $32.00 dollars to get her divorce decree from Oregon………we finally got all this taken care of before our wedding…..and she became a person again….but when we took her divorce decree to DMV, it caused the ladies to give a quizzical look…..seems that the Oregon folks put down that her divorce date from her her second husband happened when she was 15 years old……but they accepted it anyways……..see, my wife married her first husband when she was 18 in like 1983…..but the nice clerks accidentally put her divorce date in 1980 instead of 2000…what a mess….but thankfully we got it all resolved and our wedding day went off without a hitch!!!

  • 110. davepCA  |  November 14, 2014 at 3:09 pm

    The actions of the Florida DMV are clearly baseless and vindictive. Neither of these two people are asking the DMV to 'recognize their marriage'. They are each asking the DMV to recognize their decision to legally change their name and have this reflected on their driver's licenses. They could just as easily have changed their names without being married to each other. People are freely allowed to legally change their names as long as it is not done to defraud or avoid legal responsibilities and consequences, and that was not the case here. The DMV has no valid justification for its actions and if these guys sue they will win, regardless of whether the state recognizes their out-of-state marriage or not.

  • 111. Steve84  |  November 14, 2014 at 6:11 pm

    It's a bunch of petty, low-level bureaucrats having delusions of grandeur. They think that having a little power gives them the right to terrorize other people. However, this isn't direct retribution, but a systematic problem at the DMV. If you search around you will quickly see that this problem exists all over the US. Tons of people had little trouble changing all their documents (state and federal) to their new name even in states that don't have same-sex marriage, but the DMV suddenly thinks they are special and can throw a temper tantrum.

  • 112. montezuma58  |  November 14, 2014 at 4:55 pm

    I read about this the other day. What I found interesting was that the DMV addressed the letter telling them to revert their names using the updated name instead of the old last names. Seems like a tacit recognition of the name change to me.

  • 113. guitaristbl  |  November 14, 2014 at 2:04 pm

    Ugh the Tennessee case is probably the worst one for review in this case…!
    Come on Michigan, please file it today !

  • 114. RQO  |  November 14, 2014 at 2:29 pm

    The good thing about Tennessee – those people still don't think they lost the 1920's "Scopes Monkey Trial" (which, when you think of it, puts a whole lot of evolutionary hierarchy assumptions on hold). No, they need to be addressed, ASAP.
    Throw everything possible at SCOTUS, NOW. The barrage alone will have a salutory effect.

  • 115. Mike_Baltimore  |  November 14, 2014 at 2:05 pm

    Off topic.

    From the 'Advocate', the headline is 'LGBT-Affirming Christians Gather in D.C.'
    (… )

    The article has selected excepts from the keynote addresses of David Gushee and Allyson Robinson. (The article states that transcripts of the full text of their speeches are on-line, but does not include a link to the referenced transcripts.)

  • 116. debater7474  |  November 14, 2014 at 2:49 pm

    Could the Supreme Court decide to take the cases without receiving the opposition briefs? Court watchers are saying that if the states don't file their opposition for 30 days, and then the cases are distributed in a conference at the end of the January, it would likely be too late for review this term. I interned for a law firm that had one of the very last cases of last term and I think we got notified at the very beginning of January this year. Like, within the first week or two.

  • 117. Ryan K (a.k.a. KELL)  |  November 14, 2014 at 3:07 pm

    The last SCOTUS private conference this calendar year is on Friday, December 12, 2014. So it's highly doubtful that these cases will be reviewed there, unless for some reason any of the states are just as efficient with their response briefs as the equality lawyers have been with the writ of certiorari being filed. I'm not sure when the first conference will be in January for SCOTUS, but one hopes it is presented there, we have 4 votes to take the DeBoer case, it gets put on the calendar for argument in early April, and we get an end of June 2015 ruling. Having this scheduled for the 2015 term starting in October 2015 would BLOW!

  • 118. brooklyn11217  |  November 14, 2014 at 3:26 pm

    Scotusblog believes the cases can be heard this spring if they are considered in early January. That should give a decision by June 2015.

  • 119. Mike_Baltimore  |  November 14, 2014 at 8:06 pm

    "Court watchers are saying. . . ."

    NBC News is saying there is almost certainty that an ME case will be heard and decided this SCOTUS term, and as brooklyn states, SCOTUSBLOG is also of the opinion that ME will be heard and decided this term.

    I'm wondering who you are saying are court watchers, and are saying the case doesn't have time to be heard this term? They could be correct, but then again, it is not a unanimous opinion that there will be no decision this year.

  • 120. robbyinflorida  |  November 14, 2014 at 3:14 pm

    ",,,plaintiffs in Michigan and Kentucky have also said they’d file petitions this week." Well today is Friday, updates should be coming any moment now.

  • 121. franklinsewell  |  November 14, 2014 at 5:41 pm

    Attorney for Michigan couples quoted in story below suggests that they will file their briefs on Monday.

  • 122. brandall  |  November 14, 2014 at 3:20 pm

    South Dakota…another Baker based case bites the dust for Defendant's. It obvious Plaintiff's are about to win as the Defendant's Motion to Dismiss is DENIED:

    Good luck SD trying to write a response to this detailed 28-page ruling due the week of Thanksgiving. You don't have a drumstick to stand on…..sorry, couldn't resist.

  • 123. Rik_SD  |  November 14, 2014 at 3:35 pm

    From that opinion:
    "The Sixth Circuit’s reading of the doctrinal developments exception
    is too narrow and would effectively eliminate that exception by requiring either an explicit or implicit overruling of a prior decision. Furthermore, it is difficult to reconcile
    the Supreme Court’s statement in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, Windsor , 133 S. Ct. at 2694, with the idea that state laws prohibiting same-sex marriage do not present a substantial federal question. Thus, the Sixth Circuit’s reasoning is not as persuasive as the reasoning of the Second, Fourth, Seventh, Ninth, and Tenth Circuits on this issue."

  • 124. nicolas1446  |  November 14, 2014 at 5:00 pm

    I love that. Judges need to keep on criticizing the 6th circuit!

  • 125. sfbob  |  November 14, 2014 at 3:58 pm

    It's a good ruling. Dumps on both Baker and Bruning, observing as other judges have lately that the challenge in Bruning was based not on the right to marry but the right for a constitutional ban not to exist, using Romer vs Evans as a direct precedent. The judge was not persuaded that Baker was still binding precedent nor that Bruning ruled on the right to marry. A third claim, having to do with the right to travel, was dismissed. I do think the argument can be made but there are some reasons why it might have difficulty prevailing. We're on pretty firm ground when it comes to fundamental rights and the argument based on gender-based discrimination is looking better all the time.

  • 126. guitaristbl  |  November 14, 2014 at 3:59 pm

    Great ! I think that given the way she writes the marriage ban is very close to be struck down, she seems to be quite sympathetic to the ME position.
    And if the judge in Mississipi also issue the injunction there will only be 4 states (North Dakota, Nebraska, Alabama, Georgia) without a favorable marriage ruling or a binding precedent in the circuit they are.
    We are heading for a showdown..

  • 127. RnL2008  |  November 14, 2014 at 4:22 pm

    It appears that neither Bruning nor Baker are as much precedent as the defendants would like it to be and appear to lose in South Dakota!!!

  • 128. brandall  |  November 14, 2014 at 4:51 pm

    They will just ignore whatever this Judge (or any Judge in any of the other cases) states or rules and reiterate the same points at the District and at the Appeals level. They are now all aiming for SCOTUS. Every pending case has to go through these legal formalities at each level, but we have to wait it out to get to the top of the hill.

  • 129. SethInMaryland  |  November 14, 2014 at 6:07 pm

    yep it seems nethier brunning nor baker are nolonger binding

  • 130. brandall  |  November 14, 2014 at 5:28 pm

    Michigan – State filed a motion today to invalidate 300 marriages. I have the article below, but there are no links yet to the filing. I am assuming they filed in the 6th AC. Two scenarios I can think of:

    1) The 6th will grant the motion to invalidate the marriages and then we'll see the now customary rush to SCOTUS for a stay, this time by the Plaintiff's.

    2) Using the timeline of the 9 years it took Sutton to write the decision (OK, I exaggerated a bit), they can do nothing and just wait it out until SCOTUS indicates what it is going to do with the SCOTUS appeals.

    I vote they will take Door #2 where Carol Merrill is not standing.

  • 131. franklinsewell  |  November 14, 2014 at 5:40 pm

    This is nuts.

  • 132. Zack12  |  November 14, 2014 at 5:41 pm

    I think they will pick door # 2 as well but once again, we are seeing the animus of these bigots laid bare.

  • 133. guitaristbl  |  November 14, 2014 at 5:52 pm

    This is vile, really vile especially since they know Supreme Court review is imminent and that by invalidating these marriages now they essentially create an even bigger limbo if the ban is struck down once and for all.
    And I left the human factor aside on that. But it's vile both legally and on a human level.
    The 2nd option makes sense but given how bigoted the 6th is I expect anything. I expect Sutton dropping anything he is doing to invalidate these marriages himself honestly.

    They actually filed in district court where a case about the recognition of these marriages performed after the district court ruling is pending. I hope the judge has the basic rationality to stay the case till final resolution by SCOTUS. And then we will see who decided erroneously dear Michigan officials.

  • 134. Raga  |  November 14, 2014 at 7:30 pm

    This is Caspar v. Snyder, a federal district court case, proceedings in which were stayed pending the outcome of DeBoer. A similar case, in Utah, if I recall right, had an extremely long, thorough, well-written opinion by a devout, high-ranking Mormon judge that upheld the interim marriages that happened there, regardless, at that time, of the ultimate outcome of Kitchen.

    Technically, Judge Mark Goldsmith, an Obama appointee, would have to wait for the Sixth Circuit to issue its mandate before proceeding, but that shouldn't be necessary. Like the excellent opinion in Utah concluded, married is married – when the marriages took place legally at the time they were contracted. I hope Judge Goldsmith looks to the Utah opinion for guidance.

  • 135. RobW303  |  November 14, 2014 at 9:59 pm

    So much for protecting the public from harmful on-again, off-again status changes. Why does that policy only apply one way?

  • 136. Jen_in_MI  |  November 14, 2014 at 10:54 pm

    Gosh, they waited for a whole 10 days after the goddamned election to show how hateful and bigoted they still are despite Snyder conceding to news agencies earlier this year that my marriage and 300-some odd others ARE INDEED VALID. Pardon my invective, but fuck these assholes! Pathetic!!

  • 137. RnL2008  |  November 15, 2014 at 12:24 am

    I think it's wrong for these anti-gay folks to try and go undo something that was legal when it was done and if they WOULDN'T do to those of us in that 18,000 who married before the passage of Prop 8….then I don't believe they can do anything about yours!!!

  • 138. RemC_Chicago  |  November 15, 2014 at 6:03 am

    Yes, this is vile. And to borrow a page from Rose, WHO IS BEING HARMED BY THESE 300 MARRIAGES? What do they think will be accomplished by making those marriages go away? Who benefits from making those marriages go away? Could anyone make a case that this motion is not motivated by animus?

  • 139. DACiowan  |  November 14, 2014 at 5:53 pm

    Florida coughed up its brief to the Eleventh Circuit:… . They throw everything at the wall: federalism, Baker, they even try and work Loving to their advantage because Loving was specifically about race, not gender.

  • 140. SethInMaryland  |  November 14, 2014 at 6:08 pm

    this is going to get smacked down hard, god i wish the 11th fastrack this case

  • 141. Zack12  |  November 14, 2014 at 6:13 pm

    Loving might have been about race but the arguments used to try and uphold the bans are virtually the same as the ones being used to justify the gay marriage bans.

  • 142. mariothinks  |  November 14, 2014 at 6:18 pm

    They did take forever! They tried every possible angle. Can't wait to see what happens in the 11th!

  • 143. Ryan K (a.k.a. KELL)  |  November 14, 2014 at 7:54 pm

    Can you believe my tax dollars in this state go to pay for this piece of shit brief? I sincerely hope that the 11CA still takes the time to state that this is a pile of shit and that the district court ruling is upheld on appeal. If it takes SCOTUS until sometime in January 2015 to get the writ of certiorari to their conference from the 6CA, maybe the 11CA will move on expedited schedule.

  • 144. Elihu_Bystander  |  November 15, 2014 at 4:55 am

    The FL appellants’ opening brief is very cold in syntax. Additionally, it sounds more like a lecture to the CA court rather then a legal pleading. It exhibits no deference or courtesy to the court. If I were the intended receiving party, I would be insulted.

  • 145. RemC_Chicago  |  November 15, 2014 at 6:05 am

    It will be highly satisfactory if the ruling in our favor in the 11th includes some snarky comment, like how we ought to have the same right to get married three times if we want to.

  • 146. Ryan K (a.k.a. KELL)  |  November 15, 2014 at 9:39 pm

    That would be a nice jab at Bondi no doubt. Nice to know she can rinse and repeat at will, whereas we can't even get in the water!

    I would love the 11CA to issue an opinion on this appeal, as I think the 1CA and 11CA are our remaining two CAs where we would get a pro-ME ruling. However with the writs of certiorari in front of SCOTUS for some of the 6CA rulings (soon all four), I have to wonder if they'll proceed to schedule oral arguments and render a decision or just put the whole thing on hold pending DeBoer?

  • 147. Zack12  |  November 15, 2014 at 9:56 pm

    The 11th circuit is a crap shoot.
    Keep in mind Republicans controlled the Senate six of the years Clinton was in office so many of the judges he apponinted are more conservative then not.
    I think we can get a positive ruling but it would come down to the panel.
    Of course, if SCOTUS takes up cases from the 6th, they will likely put any case we have on hold.

  • 148. Ryan K (a.k.a. KELL)  |  November 15, 2014 at 10:10 pm

    Yeah I assumed as well, I expect the 11CA and 5CA to be put on hold pending DeBoer. Would the respective CA notify the parties that the case is officially on-hold, and would only do that once certiorari is granted by SCOTUS in one of the 6CA cases?

  • 149. scream4ever  |  November 15, 2014 at 11:47 pm

    Likely they would notify them. Keep in mind that Florida will likely get marriage equality regardless from their state supreme court, as will Arkansas and Missouri.

  • 150. Ryan K (a.k.a. KELL)  |  November 16, 2014 at 5:53 am

    I really haven't seen any progress in Florida in state court recently. My best friend is a family law partner and he's pissed off how slow the Florida appeals courts are moving on it. Let's hope the pace picks up a bit – FUNDAMENTAL RIGHTS people!

  • 151. scream4ever  |  November 16, 2014 at 9:39 am

    Well the stay issued by the federal judge is set to be lifted on January 5th. Further requests for a stay will likely be the final push for them to issue a definitive ruling.

  • 152. Ryan K (a.k.a. KELL)  |  November 16, 2014 at 3:51 pm

    While the past isn't always an indication, and given this appeal to the CA is after all of the denials for certiorari in the 4-7-10CAs, I still have a feeling the Thrice-Married-Bondi will request and receive a stay pening appeal from a motions panel in the 11CA. Given no ruling on the merits by SCTOUS, the 11CA is left to its own to rule on this topic without being binded by any other CA ruling to date. I hate to suggest it, but I don't see orals, let alone a ruling by 1/5/15, so I presume AG Bondi will request and receive a stay pending appealate ruling by the 11CA.

    The question then will then be after that is granted by 1/5/15, and then say SCOTUS grants cert in mid-January, does the 11CA just shelf this until the SCOTUS rules in June 2015. Then as others have suggested, maybe the SCoFL will have ruled in favor of ME in state court.

  • 153. Zack12  |  November 16, 2014 at 4:06 pm

    I think your scenario is the most likely to happen.
    I don't see any way for the 11th to hear a case and make a ruling before February-March.

  • 154. Raga  |  November 16, 2014 at 5:12 pm

    Agree with everything except the last part… The Supreme Court of Florida doesn't even have a case before it now. Unless an appeals court passes through the case and the Supreme Court accepts it, it seems unlikely that there'll be a ruling from the Florida Supreme Court by June.

  • 155. Mike_Baltimore  |  November 16, 2014 at 4:13 pm

    Court decisions are public information (though sometimes it takes a while for the official information to be made 'public'). And the affected parties do have a need to know what is going on so they don't miss hearings, dates for briefs being submitted, etc.

    Courts are good at quickly informing all affected parties of the status, just not the public in all cases. There ARE leaks, though, of information, so the public usually knows what is going on fairly quickly.

    All in all, if any stays are issued, everyone will know of the stays in quick order.

  • 156. Marriage Equality Round-U&hellip  |  November 15, 2014 at 6:52 am

    […] USA, Ohio: The ACLU has appealed the Sixth Circuit decision in the marriage equality case here to the US Supreme Court. full story […]

  • 157. Marriage Equality Round-U&hellip  |  November 15, 2014 at 7:47 am

    […] USA, Ohio: The ACLU has appealed the Sixth Circuit decision in the marriage equality case here to the US Supreme Court. full story […]

  • 158. brandall  |  November 15, 2014 at 10:03 am

    The key to Bondi's poorly constructed argument falls apart in just two consectutive sentences (citations omitted) on Page 13:

    "Rather than recognize the history of federal deference to States in areas of marital relations, the district court suggested that any such deference ended with Loving v. Virginia. But the district court misunderstood the holding of Loving…which said nothing about how States define marriage."

    Huh? States have a right to define unconstitutional miscegenation laws, SCOTUS tosses out these marriage bans, but the Federal courts said [or did] nothing about how states define marriage?

    If another EoT'er can find any logic in their contortion of history, I would love to hear about it.

  • 159. OrvilleKlutz  |  November 15, 2014 at 10:46 am

    I would add that their thinking is illogical and they should be asked to step down. If they don't step down and they dig their heels in they will simple bury themselves.

  • 160. Leo  |  November 15, 2014 at 10:57 am

    As I understand it, the logic is something along the lines of "Virginia didn't define marriage as same-race only. It regarded interracial marriage as marriage, but prohibited it. SCOTUS tossed out the prohibition, but said nothing about the definition." An analogy would be, homosexual sex in Texas before 2003 was sex, it just wasn't legal.

    (Needless to say, I don't find it convincing. If Virginia had indeed made race a part of the definition, it shouldn't have changed the outcome.)

  • 161. ebohlman  |  November 15, 2014 at 3:03 pm

    One of the most important reasons we won the four ballot measures two years ago was that none of the courts that had to approve the language of the questions allowed them to use the word "define" or any derivative word.

  • 162. RnL2008  |  November 15, 2014 at 11:15 am

    There ISN'T any……..and in my experience regarding Loving vs Virginia the anti-gay folks like to claim that Loving DIDN'T change the definition of marriage, it just removed the barrier based solely on race…which they claim CAN'T be changed……HOWEVER they CAN'T see that our argument is basically the same as Richard and Mildred Loving's argument……..and CAN'T see that this is about marriage as a Civil commitment….NOT a religious one…….and no matter how one looks at this issue…….all that we are fighting for is the RIGHT to marry the person of our choosing WITHOUT the State dictating the gender of that person.

    Here's what Mildred stated and was used in Windsor:
    “We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? … I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. … I support the freedom to marry for all. That's what Loving, and loving, are all about.” — Mildred Loving, "Loving for All"

    Coretta Scott King:
    Constitutional amendments should be used to expand freedom, not restrict it, Coretta Scott King said Tuesday.

    "Gay and lesbian people have families, and their families should have legal protection, whether by marriage or civil union," she said. "A constitutional amendment banning same-sex marriages is a form of gay bashing and it would do nothing at all to protect traditional marriages."

    These two women got it……why can't others?

  • 163. wes228  |  November 17, 2014 at 7:20 am

    I haven't read the brief, but I imagine this is part of the same absurd argument that the 6th Circuit made in their decision: Allowing interracial couples to marry does not change the definition of marriage, but allowing same-sex couples to marry does.

  • 164. OrvilleKlutz  |  November 15, 2014 at 10:43 am

    States must allow marriage equality as it is a civil, equal right of their citizens and to not allow it is discriminating against their LGBTQIs as well as being unconstitutional.

  • 165. Steve27516  |  November 15, 2014 at 11:54 am

    Friends of EoT, I think you might enjoy this. I swear it is completely true.

    I dreamed last night that I had been selected to address the U.S. Supreme Court, speaking on behalf of Equality on Trial.

    Along with several other people similarly preparing to appear before the Court, I had arrived at the Supreme Court’s secret apartment complex, where the Justices lived together, sort of like firefighters in a fire station. The complex was disguised on the exterior to look like an abandoned quick-loan-business store front.

    I was to spend a few days there getting to know the Justices before the date of public arguments. Everyone was very accommodating. Scalia was essentially a John Belushi figure, clowning around while we shared pizza for lunch. Sotomayor was particularly nice.

    We were arranging chairs to hold a practice session in the living room when, sadly, I woke up.

    I must ask myself whether I have perhaps been spending too much time on EoT.

  • 166. brandall  |  November 15, 2014 at 12:35 pm

    It is too bad you woke up before you had a chance to have dessert with Scalia….perhaps offer him a Baker's dozen to hear what he had to say?

  • 167. Steve27516  |  November 15, 2014 at 1:01 pm

    LOL. No, no Baker's nothing.
    He was totally Belushi in "Animal House"!

  • 168. LK2013  |  November 15, 2014 at 2:04 pm

    That is hilarious! Yeah, I would wonder too about spending so much time on EoT if I were dreaming about Scalia!

  • 169. SeattleRobin  |  November 17, 2014 at 1:29 am

    Too funny! Thanks for sharing and providing a good chuckle.

  • 170. Margo Schulter  |  November 15, 2014 at 12:27 pm

    nicholas1446, I agree that the “right of travel” argument could effectively conflict with the right of States to enact marriage limitations that are consistent with the constitutional rights of persons, as stated in Windsor.

    And it seems to me that Judge Karen Schreier in the South Dakota case has it right: right of travel prohibits a State from treating visitors or newcomers different from other state residents in invidious ways, but not from imposing the same law (e.g. a marriage bar between first cousins) on both.

  • 171. Margo Schulter  |  November 15, 2014 at 12:36 pm

    Rose, thanks for reminding us of “Loving for All.” And a critical link between Loving and Windsor is the statement in Zablocki v. Redhail (1978) that although Loving involved the specifics of race, “the right to marry is of fundamental importance for all individuals.” This gets quoted in lots of the marriage equality rulings.

    Another link, of course, is Lawrence v. Texas (2003), which makes it clear that the rights of privacy and self-determination about consensual sexual activity and relationships apply to people of all sexual preferences. So any definition of marriage that excludes same-sex couples from this fundamental right becomes constitutionally dubious at best.

  • 172. haydenarwen  |  November 15, 2014 at 5:26 pm

    Received word earlier today regarding MI…… 12:29 PM (7 hours ago)

    to me

    Judge Lawson's opinion is GREAT…..thanks for sending it along. The Appeal to the Sup. Ct. is in. From a friend who is the main partner with Ken Mogill….. Here's a link… myself, David and my partner, Vic are doing all we can for the LGBT community in MI……

  • 173. Ryan K (a.k.a. KELL)  |  November 15, 2014 at 10:17 pm

    Per SCOTUSblog, if the writ of certiorari was submitted after 5pm on Friday or over the weekend, it will be docketed on Monday. The State of MI would then have 30 days to file a reply brief. Unless the State of Michigan decides to act promptly and ahead of the deadline, I don't see this being ready for the Dec 12th conference of the Justices (last one in 2014). Although the writs and briefs in the 7CA moved amazingly fast to get included in the set with the 4CA and 10CA, so anything is possible. Tick tock Gov. Snyder, let's get this reply brief in!

  • 174. Zack12  |  November 15, 2014 at 10:28 pm

    Sad to say but I can see them dragging their feet on this.
    The only "good" thing about that is the fact they can still grant cert by mid January which I think they will do.

  • 175. Raga  |  November 16, 2014 at 7:55 am

    Don't be discouraged! The case distribution schedule mentions December 23 as the last deadline for the January 9 conference. Even if the State takes a full thirty days to respond and turns in their brief on the 17th, Plaintiffs still have until the 23rd to file a reply. Even if they relist once before granting cert, they will grant cert during their January 16 conference, perhaps in time for argument and decision this term.

  • 176. Raga  |  November 16, 2014 at 10:45 am

    Wait, the DeBoer cert petition has been filed? Do you have a link to the petition?

  • 177. Ryan K (a.k.a. KELL)  |  November 16, 2014 at 3:52 pm

    I was wonderng and questioning the same, as that link isn't germane to their cert petition. We are banking on that statement and it'll be docketed on Monday when the SCOTUS opens for business.

  • 178. haydenarwen  |  November 17, 2014 at 4:03 am

    Sorry no link, as the atty did not given me one… I m assuming it was field late Friday evening and will be docketed today

  • 179. Zack12  |  November 15, 2014 at 5:51 pm
    A battle will be brewing here in NY over the Court of Appeals, the top court here in NY.
    Republicans and conservatives are NOT happy that Cuomo told one of the bigoted judges who ruled against us in 2006 in our state gay marriage case was told to take a hike.

  • 180. Margo Schulter  |  November 16, 2014 at 2:08 am

    There was a story that Attorney General Bill Schuette of Michigan, shortly after the Sixth Circuit decision, said that he wanted a SCOTUS ruling to resolve the issues as soon as possible, and would not use procedural maneuvers to delay the prompt consideration of certiorari.

  • 181. Sagesse  |  November 16, 2014 at 6:09 am

    Apologies if this has been posted. I've been busy at work lately, and finding it very hard to keep up with the conversation here at EoT.

    This article by Dale Carpenter has a fascinating analysis of the legal definition of 'animus', and links to other good articles on the subject. It will be relevant when SCOTUS takes up the 6th circuit case(s) because, the article suggests, Sutton glossed over established Supreme Court review of 'animus'.

    Michigan district court strikes down state’s anti-domestic-partnership law on animus grounds [Volokh Conspiracy in the Washington Post]

  • 182. ragefirewolf  |  November 16, 2014 at 9:12 am

    "Indeed, should the Supreme Court ultimately rule against marriage equality, the immediate result is likely to be that tens of thousands of marriages in states across the country will be retroactively invalidated."

    WRONG. Read this armchair drivel at:

  • 183. brandall  |  November 16, 2014 at 9:41 am

    The entire article is an over the top speculation and I'm disappointed to see the folks at "Think Progress" stoop to the same level of fear mongering we see on Fox everyday.

  • 184. ragefirewolf  |  November 16, 2014 at 9:49 am

    Yeah, I was pretty disappointed as well.

    I just want this to all be over, Brandall… :-/

  • 185. Zack12  |  November 16, 2014 at 10:32 am

    Don't we all.
    As for the article itself, I do see his point but putting it that way doesn't help anyone.

  • 186. scream4ever  |  November 16, 2014 at 11:30 am

    About the ACA case, remember that it only takes 4 justices to hear a case, which obviously is not enough to rule in favor of it. Also, their is a circuit court split on the issue, so they are also taking it likely to resolve the split.

  • 187. GregInTN  |  November 16, 2014 at 12:21 pm

    I don't think there is a circuit split on the ACA issue at this time. I think the administration was granted an en banc review in the DC Circuit (scheduled to be heard in December). Only the 4th Circuit's decision has reached SCOTUS.

  • 188. JayJonson  |  November 16, 2014 at 2:46 pm

    You are right that there is no circuit split on the ACA issue. That is why the decision to hear this case was so shocking and was so obviously a political ploy. See Linda Greenhouse in the New York Times on this issue:

  • 189. JayJonson  |  November 16, 2014 at 2:43 pm

    I don't understand your anguish over the ThinkProgress article. Surely, Milhauser is correct that there is a possibility that SCOTUS will rule against us and that ruling could lead to thousands of same-sex marriages being invalidated. He says that it is not likely that SCOTUS will do so, since like most of us, he thinks Kennedy will do the right thing on marriage.

    We need to be realistic and also prepared for the possibility of a monumental loss. I do not think it will happen if the SCOTUS as currently constituted rules quickly on one of the Sixth Circuit cases. But our 5-4 majority is precarious and time is not on our side in terms of SCOTUS.

    Should we lose at the Supreme Court, I have no doubt that the RATS will be very happy to invalidate as many same-sex marriages as they can.

  • 190. Zack12  |  November 16, 2014 at 3:35 pm

    I think some are prepared for that but I go to the actions SCOTUS has taken thus far on same sex marriage.
    Those do not seem like the actions of a court where there is doubt about the yes no votes.

  • 191. ragefirewolf  |  November 16, 2014 at 4:16 pm

    Because you cannot simply retroactively invalidate a marriage that was entered legally at the time…loss of recognition and invalidation are not the same thing.

    That's my "anguish" over the article, Jay. Nothing more.

  • 192. JayJonson  |  November 16, 2014 at 4:45 pm

    The Supreme Court can do lots of things we don't like, including invalidate our marriages. Which is why we need to be vigilant.

    As Milhauser wrote, it is not likely that the RATS will succeed. But to dismiss out of hand that possibility as fearmongering or "armchair drivel," especially regarding the marriages entered into in the Sixth Circuit or, for example, in Arkansas before there has been either a Circuit or a state Supreme Court ruling, is to engage in false confidence.

    In 2004, both the California and Oregon high courts invalidated marriages entered into that they deemed illegal. The situtation in those states was not exactly analagous with the contested marriages in Michigan or Arkansas or the death certificates and birth certificates issued in Ohio, but you can be certain that just as Snyder is arguing that the Michigan marriages are illegal, others will be saying the same about other marriages if there is an adverse ruling at SCOTUS.

    Indeed, if we lose at the Supreme Court, there will be efforts to invalidate all the marriages that have taken place as a result of court orders that will be overruled by a SCOTUS decision. We will, of course, argue that those marriages are legal and should not be invalidated. We are likely to win on that point as we did at the California Supreme Court after Prop 8. But that win is not certain and it partakes of hubris to claim that it is impossible that the marriages could be invalidated.

    As you say, loss of recognition and invalidation are not the same things. But many of the couples who now enjoy recognition of their marriage at both the state and federal level may have the state recognition of their marriage withdrawn as a result of a SCOTUS ruling, and perhaps even the federal recognition of their marriage if SCOTUS rules that Windsor was only about federalism and that therefore the Utah marriages, say, which the federal government now recognizes, should no longer be recognized by the feds, since Utah will no longer have to recognize them.

    The possibility that Milhauser points to is a real one. He thinks it unlikely, as do I, but that doesn't mean that it is impossible or that to suggest it is "drivel."

  • 193. GregInTN  |  November 16, 2014 at 5:18 pm

    I see a big difference between the 2008 CA marriages and the situation with marriages in states that were performed based on lower federal court rulings. In CA, the state Supreme Court ruled in 2008 that the bans violated the state constitution as it existed at the time of their ruling. Later that year the Constitution was changed such that future marriages could not be conducted. The marriages that were conducted before the constitution was changed remained valid.

    In the current situation, the Constitution has not changed. It would only be the interpretation of the Constitution by different levels of the federal judiciary that would have changed (assuming a worst case scenario of something happening to our presumed 5-4 majority before the case is decided). Thus, I don't think we should count too much on the CA 2008 precedent as indicative of what would happen in the future.

  • 194. JayJonson  |  November 17, 2014 at 7:06 am

    Yes, a very good point. The California Supreme Court in 2008 was a sympathetic court that had already ruled (on a 4-3 vote) that same-sex marriage was a constitutional right. After the November 2008 election, it tried to limit the impact of Proposition 8, saying (absurdly) that the dispute was only about a word and that domestic partnerships provided all the rights and obligations of marriage (in effect, strengthening domestic partnerships as compensation for Prop 8).

    It rejected Kennteth Starr's argument that Prop 8 required that the marriages performed in the window between the CSC ruling and the adoption of Prop 8 should be invalidated on the very peculiar grounds that the voters did not know what they were doing when they voted on Prop 8. Although the text of Prop 8 plainly said that only opposite-sex marriages would be recognized in California, because the question of the invalidation of current marriages did not figure prominently in the campaign, the CSC declined to invalidate them.

    I am certainly glad that the California Supreme Court did not invalidate the marriages, but their logic seems questionable, and I doubt seriously that the RATS on the Supreme Court would follow such logic or would give a fig about whether our marriages are invalidated or not.

    I suspect that the marriages that occurred after Circuit-level decisions when stays were lifted by SCOTUS would be considered legal. The ones that would be most vulnerable are those in Arkansas and Missouri and others that occurred before a definitive ruling by an Appellate Court or during periods when stays were ignored by county clerks.

    In any case, it is folly to think that absent a definitive ruling by the Supreme Court that our marriages will not be subject to attack by politicians and anti-gay judges.

  • 195. wes228  |  November 17, 2014 at 7:17 am

    The problem would be that if the Supreme Court ruled that these marriage bans were constitutional, it would mean that they were always constitutional and thus always in effect. The state would have a strong argument that those marriages were never validly entered into to begin with.

  • 196. JayJonson  |  November 17, 2014 at 7:25 am

    Exactly. And from the attempts of Utah and now Michigan (to say nothing of Kenneth Star in the Prop 8 cases), there are plenty of people who not only do not share the sanguine view of ragefirewolf that marriages cannot be retroactively invalidated, but are quite willing to invalidate them if at all possible.

  • 197. RnL2008  |  November 17, 2014 at 8:19 am

    I disagree……as was stated by the CSSC, if a marriage was performed as legal because a Courted stated so, then how can those marriages now be nullified, or invalidated and if the Court does invalidated them… are the common decent folks suppose to have any faith in the legal system………..and so, I DON'T believe that SCOTUS is going to come in and confirm the ruling of the 6th….and invalidate all of the legal marriages that have taken place……..I believe that SCOTUS will more than likely overturn the ruling of the 6th and confirm that marriage is truly a Fundamental right and that the States can not define it by a gender restriction!!!

  • 198. wes228  |  November 17, 2014 at 8:43 am

    The CSSC's decision in Strauss v. Horton differentiates that situation from the situation we would be faced with should SCOTUS uphold the bans.

    In California, you had a court of last instance strike down a ban on marriage for gays in a final and unappealable order. Marriages between parties of the same sex were legal. It then took the enactment of a new and different law to ban them again. They ruled that this second law could not be made retroactive.

    Here, you would have SCOTUS ruling that the same law banning marriage for gays was always constitutional. When a lower court strikes down a ban, it does not make it go away forever requiring the passage of a different law once a higher court reverses and upholds the original law.

    From Strauss v. Horton:

    "Past cases establish that retroactive application of a *****new measure***** may conflict with constitutional principles if it deprives a person of a vested right without due process of law. […] Here, same-sex couples who married after the decision in the Marriage Cases was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples' reliance upon this court's *****final decision***** in the Marriage Cases was entirely legitimate." (my emphasis)

  • 199. JayJonson  |  November 17, 2014 at 10:24 am

    Rose, as I have repeatedly said, I also don't believe that SCOTUS is going to confirm the ruling of the Sixth Circuit. Nor, as I have also repeatedly said, do I believe that all of the legal marriages that have taken place will be invalidated.

    However, neither you nor I are omniscient. Things can happen. Our presumed 5-4 majority in the Supreme Court is precarious. If something happens to one of the SCOTUS justices in favor of our right to marry, we could very well find ourselves on the losing end of a SCOTUS ruling.

    In such a situation, many marriages may indeed be invalidated. Especially in danger are the marriages that took place in Michigan and Arkansas and in other jurisdictions that took place without a final ruling from an appellate court.

    What we are discussing is not what is LIKELY to happen, but what is possible to happen. What I dislike is the dogmatic assertion that it is IMPOSSIBLE for the Supreme Court to invalidate our marriages because that is not true.

  • 200. Raga  |  November 16, 2014 at 10:48 am

    The requested briefs have been filed in Kansas Supreme Court. The Court will begin "deliberations" on Monday at 8am.
    (1) Judge Moriarty:
    (2) State of Kansas:
    The only thing they both agree on is that the Kansas Supreme Court should refrain from reaching the constitutionality of Kansas's marriage ban.

  • 201. flyerguy77  |  November 16, 2014 at 11:12 am

    and Its already have been ruled unconstitutional by Federal court.. What do you think what will happen? I'm seeing them lifting the stay, and I have been wondering other counties will deny ML to same-sex couples

  • 202. Raga  |  November 16, 2014 at 11:19 am

    I think they will lift their temporary stay and stay the mandamus proceedings until Marie is final. Even though the State is urging them to issue some kind of directive to the other counties, I'm not sure they'll do that unless a new case/controversy presents itself because they wouldn't think it is their job to clarify whether a federal court's order should be binding statewide or just the named defendants. But I could be wrong.

  • 203. scream4ever  |  November 16, 2014 at 11:20 am

    The main issue which will result will be lifting the injunction in Johnson County.

  • 204. flyerguy77  |  November 16, 2014 at 11:24 am

    other counties will be dealing with other lawsuits in federal court/ face court of contempt

  • 205. scream4ever  |  November 16, 2014 at 11:46 am

    I haven't heard of any counties which were denying couples application forms for licenses other then Johnson. Some counties went ahead and waived the waiting period yes but the others were simply following state law.

  • 206. flyerguy77  |  November 16, 2014 at 3:12 pm

    Sorry,there are other counties which are denying ML to same sex couples..

  • 207. Mike_Baltimore  |  November 16, 2014 at 3:54 pm

    A saving grace is that in Kansas, an application and license are valid in the entirety of the state. Any couples trying to get married in those counties not allowing ME now would have to travel to another county. The worst hurt would be those in the interior of the geographic areas not allowing ME (Greenwood, Elk and Butler counties and Graham County, and possibly other counties that have not yet announced their policy).

    At least Kansans will not have to travel out of state to get married.

  • 208. franklinsewell  |  November 16, 2014 at 11:43 am

    Someone above said Michigan has filed its brief … anybody have access to the actual filing?

  • 209. Alphazip  |  November 16, 2014 at 1:18 pm

    There is a separate Michigan case having to do with the recognition of marriages performed after the district court ruled, but before the ruling was stayed (and subsequently reversed). News reports state that the Michigan plaintiffs will file their SCOTUS appeal on Monday.

  • 210. Mike_Baltimore  |  November 16, 2014 at 1:59 pm

    And some news reports state that the Michigan plaintiffs will file an appeal with SCOTUS BEFORE Monday (except for those now directly involved in the case for the plaintiffs).

    Which it is is nothing but guesswork (except for those now directly involved in the case for the plaintiffs), just as some news reports are saying that there is no time for an appeal, hearing and decision by SCOTUS this term, so it will be next term. And some are saying that there is still time this term, even if the SCOTUS conference in late January is the conference that is when the appeal is accepted.

  • 211. Zack12  |  November 16, 2014 at 3:36 pm

    I read on Scotusblog and a couple of other legal sites that they can still agree to hear a case by mid January.

  • 212. Alphazip  |  November 16, 2014 at 3:46 pm

    Well, Monday is only a little over 5 hours from now (EST), so whether it is Sunday or Monday doesn't much matter. The Michigan AG has said that he won't try to delay a SCOTUS decision.

    "Attorney Carole Stanyar, co-counsel for DeBoer and Rowse, said Friday she expects to file briefs with the U.S. Supreme Court on Monday. A spokeswoman for Michigan Attorney General Bill Schuette said Friday the state will file its briefs once the plaintiffs' attorneys file theirs."

  • 213. Mike_Baltimore  |  November 16, 2014 at 5:34 pm

    Off topic:

    The 'Advocate' is publishing an article that Nicolas Sarcozy is in favor of reversing ME in France:
    (… )

    Sarkozy MIGHT run for President in 2017, almost 3 years from now, and he will only run for President if he heads the UMP party (although he is given a good chance at winning that position).

    Another 2+ years of ME in France will almost assuredly show that the sky is not falling, and with the current Pope, the majority Catholic population of France just might start to think of things other than ME.

    And we must consider that in politics, a week is a year, and a year is an eternity.

  • 214. Mike_Baltimore  |  November 16, 2014 at 5:34 pm

    Off topic:

    The 'Advocate' is publishing an article that Nicolas Sarcozy is in favor of reversing ME in France:
    (… )

    Sarkozy MIGHT run for President in 2017, almost 3 years from now, and he will only run for President if he heads the UMP party (although he is given a good chance at winning that position).

    Another 2+ years of ME in France will almost assuredly show that the sky is not falling, and with the current Pope, the majority Catholic population of France just might start to think of things other than ME.

    And we must consider that in politics, a week is a year, and a year is an eternity.

  • 215. Mike_Baltimore  |  November 16, 2014 at 5:34 pm

    Off topic:

    The 'Advocate' is publishing an article that Nicolas Sarcozy is in favor of reversing ME in France:
    (… )

    Sarkozy MIGHT run for President in 2017, almost 3 years from now, and he will only run for President if he heads the UMP party (although he is given a good chance at winning that position).

    Another 2+ years of ME in France will almost assuredly show that the sky is not falling, and with the current Pope, the majority Catholic population of France just might start to think of things other than ME.

    And we must consider that in politics, a week is a year, and a year is an eternity.

  • 216. Mike_Baltimore  |  November 16, 2014 at 5:34 pm

    Off topic:

    The 'Advocate' is publishing an article that Nicolas Sarcozy is in favor of reversing ME in France:
    (… )

    Sarkozy MIGHT run for President in 2017, almost 3 years from now, and he will only run for President if he heads the UMP party (although he is given a good chance at winning that position).

    Another 2+ years of ME in France will almost assuredly show that the sky is not falling, and with the current Pope, the majority Catholic population of France just might start to think of things other than ME.

    And we must consider that in politics, a week is a year, and a year is an eternity.

  • 217. Pat_V  |  November 17, 2014 at 4:05 am

    Yeah, now Sarkozy is really showing himself to be a vile politician, ready to say anything to pander to his base. The fact is, he was pretty much 'forced' into taking this position by his party's supporters. Until recently he had been pretty wishy-washy on the issue, merely criticizing the "violent" "method" with which President Hollande had supposedly rammed his marriage law through parliament, brutally "dividing" the country – but had preferred to remain vague on what he would do. (Obviously, he knew he couldnt say he was fine with marriage equality, and at the same time he knew that he wouldn't want to touch the law anyway). But a couple of days ago, he said at a meeting that he would at least want to "rewrite" the law. When the audience was forcefully yelling to demand the outright cancellation of the law, he basically said "hem, ok, if that's what you want, we can call that cancelling the law, the end result is the same…"

    His crazy idea is to create a separate "marriage for heterosexuals" and a "marriage for homosexuals"… Yes, that's how pathetic it gets. And senior members of his own party have already criticized the idea as unrealistic and wrong. (Link in French… )

    The next steps for him are:
    – The election of the UMP party (this November 29), to which he's a candidate, along with 2 other rather low-profile candidates. While his return was less successful than planned, there is pretty much no way that he won't be elected the president of the UMP (it seems likely that he won't be getting 80 or 90% of the vote, as might have been expected normally, but it's hard to imagine the other candidates forcing him into a run-off, let alone winning). That said, this election is notoriously difficult to poll because pollsters have access to results regarding right-wing voters (UMP 'sympathizers'), while only actual members can vote (about 200,000-300,000 members)
    – Obviously, the only reason for Sarkozy to take the presidency of his party is to use it as a way to claim his party's nomination to the 2017 presidential election. That way, he will be the one controlling how the primaries will be organized. He would surely prefer to restrict the primaries to sole members of the UMP party (the most favorable scenario for him). His main opponents for the primary (former Prime Ministers François Fillon and Alain Juppé) have both decided not to contest the election for UMP president and have instead already declared their candidacy to become the UMP presidential nominee. As more centrist candidates, they (especially Juppé) could well give Sarkozy a run for his money in case the primaries are extended to include all center-right voters and note just strictly UMP members.
    Juppé is actually more popular than Sarkozy among right-wing voters and is also quite popular among President Hollande's own Socialist party voters. Juppé has already said he's fine with the marriage law and that he wouldn't touch it – and IF he ends up being the UMP candidate, he would likely win in a landslide.
    Right now, the most likely scenario in my opinion is that Sarkozy will make enough of a theater as UMP president that he will manage to make himself the nominee for the presidential election, which he will win (at which point it is likely that he will 'forget' his homophobic plans and insist that there are more pressing issues to be dealt with). But in French politics, lots of crazy things can happen, so it's also very possible that Juppé becomes the party nominee in 2017, or that far-right candidate Marine Le Pen gets more electoral successes, or that President Hollande might not even be a candidate (unlikely), etc…

  • 218. guitaristbl  |  November 17, 2014 at 6:35 am

    By 2017 he will have forgot everything I am certain. French politicians are well known to say many things at the spur of the moment, and at this case Sarcozy wants to pander to the most extreme elements of his party and of course take back the voters they have lost to FN.
    Let him scream and promise, he knows something like that is not only unrealistic but already not popular even within his own party with 56 % of UMP voters opposing the repeal of the law (more than 75 % of the whole electorate holding the same position).
    Sarcozy had promised to introduce more elaborate civil unions and he failed on that, he won't touch the marriage issue.

  • 219. Pat_V  |  November 17, 2014 at 7:50 am

    Yeah, according to a recent poll, 68% of the population are in favor of marriage for same-sex couples and 53% are in favor of same-sex adoption. That's a bit better than during the hysterical debate last year.

    It's interesting to check the evolution of public opinion by party affiliation:
    – marriage:
    – adoption:
    (pink = left-wing voters / grey = all / light blue = UMP voters / dark blue = far-right Front National voters)

    It's interesting that in Europe, unlike in the US, the major problem for public opinion is adoption by same-sex couples, and not really marriage itself: while 58% of Sarkozy's UMP voters favor the right to marry, only 38% support adoption. Of course, marriage automatically gives adoption rights, and this is what the French crazies were screaming about ("Can't you think of the CHILDREN?")

    It always puzzles me that the US debate revolves on other topics, and is less strongly focused on adoption than in Europe.

  • 220. guitaristbl  |  November 17, 2014 at 8:03 am

    I think the most interesting fact about the charts you provided is that while support for both issues is on the rise among UMP supporters (and at an all time high apparently), it's dropping on both issues among FN supporters (with percentages which I still find quite high for supporters of such a party). Could it be that the more social conservative elements of UMP have left it for FN and that could explain both the rise among UMP supporters (since it was left with more moderate supporters) and the fall among FN supporters (since the social conservatives who left UMP ended up there) ;

    Anyway what both these charts show is that Sarcozy has no public mandate to undo the law, no matter how much he may want to.

    And by 2017 these percentages will be even higher thus even if he is elected he will just sit on it and do nothing.Thats what they did as a party in 1999 with PACS if I am not mistaken (they opposed them back then).

    Manifest pour tous may be vocal and with the support of American bigots like Brian Brown but they certainly fail to represent a majority.

  • 221. Pat_V  |  November 17, 2014 at 1:17 pm

    Oh certainly, I'm not very worried about the end result: I know that probably nothing will happen to the law. It's just appalling to think that this jerk had to revive this divisive and hysterical debate for political gain, and that we'll now endure more of the same nonsense for months if not years.
    It's actually at least somewhat refreshing to see that he's now facing a huge backlash even from within his own party. Certainly not enough to prevent him from winning his party's presidency, though.

  • 222. Zack12  |  November 16, 2014 at 8:40 pm
    An article about marriage equality in MS.
    I would say one thing about Eastman's quote about Obama and Clinton judges.
    I strongly suspect if not for Bostic, J.Michelle Childs would have been the first Obama judge to rule against us.

  • 223. Raga  |  November 16, 2014 at 10:18 pm

    She may not rule in favor either. She could ask for briefs from both sides to show cause on why the lawsuit should continue in light of the decision in Condon v. Haley and hastily close the case. Just like in PA in May (wow, that sounds like ages ago)!

  • 224. DrBriCA  |  November 16, 2014 at 10:25 pm

    But since Condon v. Haley focused on licensing in-state, wouldn't she still need to rule on out-of-state recognition? South Carolina is going to drag their feet as much as possible every step of the way, and she has all three recognition cases before her (Bradacs + the two DMV cases).

  • 225. Raga  |  November 16, 2014 at 10:55 pm

    Sigh… I guess you're right. She'll have to rule reluctantly like the Alaska judge seemed to have done last month.

  • 226. Zack12  |  November 17, 2014 at 12:36 am

    She will but she will drag her feet all the way.

  • 227. guitaristbl  |  November 17, 2014 at 6:41 am

    Actually that's not true, she would be the 2nd, you forget judge Skavdahl in Wyoming. His opinion was quite clear : if it wasn't for Kitchen and Bishop he would rule against ME.

  • 228. guitaristbl  |  November 17, 2014 at 6:53 am

    This article has certain inaccuracies. First of all it takes it for granted that the 5th will rule, or at least will rule without a final disposition by SCOTUS in the cases from the 6th.
    That's highly unlikely. While by the time they hear arguments on the week of January 5th cert may not have been granted, unless they issue an opinion within days, cert will be granted by SCOTUS before they hand down a decision thus supposedly freezing the process in the 5th until resolution comes from SCOTUS.
    Can they play rogue and issue an opinion while SCOTUS has the issue before it ? I doubt it.

    Thus at this point the opinion of the 5th is largely irrelevant, unless SCOTUS fails to grant cert which seems highly unlikely.

  • 229. Alphazip  |  November 17, 2014 at 8:17 am

    Looks like the filing is coming soon.
    "Michigan plaintiffs take same-sex marriage appeal to U.S. Supreme Court"

  • 230. Equality On TrialBREAKING&hellip  |  November 17, 2014 at 10:13 am

    […] same-sex couples. The Court received petitions in the Ohio and Tennessee marriage cases last week, also from the Sixth Circuit, but those cases involve only whether a state must recognize legally valid same-sex marriages […]

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  • 232. Cristianos Gays » N&hellip  |  November 27, 2014 at 8:11 pm

    […] LGTB. Este dictamen ya ha sido recurrido ante el Tribunal Supremo de los Estados Unidos por los equipos legales de las parejas demandantes en los cuatro […]

  • 233. Cristianos Gays » E&hellip  |  January 6, 2015 at 10:40 pm

    […] LGTB. Este dictamen ya ha sido recurrido ante el Tribunal Supremo de los Estados Unidos por los equipos legales de las parejas demandantes en los cuatro […]

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    […] LGTB. Este dictamen ya ha sido recurrido ante el Tribunal Supremo de los Estados Unidos por los equipos legales de las parejas demandantes en los cuatro […]

  • 235. Cristianos Gays » N&hellip  |  January 26, 2015 at 8:17 pm

    […] en contra de la igualdad de derechos de las personas LGTB. Tras el recurso presentado por los equipos legales de las parejas demandantes de los cuatro estados ante el Tribunal Supremo de los Estados Unidos, […]

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