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BREAKING: Supreme Court asked to review Michigan, Kentucky same-sex marriage cases

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The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
UPDATED to add the Kentucky petition

The plaintiffs challenging Michigan’s same-sex marriage ban, April DeBoer and Jayne Rowse, have filed a petition in the Supreme Court asking the Court to review the Sixth Circuit Court of Appeals decision upholding the ban.

Their petition is the first one post-Windsor and post-Sixth Circuit’s contrary decision to raise the question of whether the US Constitution requires states to marry 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 performed outside the state.

The question presented squarely in the DeBoer case is: ” Whether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry.” Gay and Lesbian Advocates and Defenders’ (GLAD) Mary Bonauto joined the plaintiffs’ attorneys in the filing.

The plaintiffs challenging Kentucky’s ban have also filed their petition. There are two Kentucky cases: Love v. Beshear, challenging Kentucky’s refusal to marry same-sex couples, and Bourke v. Beshear, challenging the state’s refusal to recognize legally valid same-sex marriages performed outside of the state.

These are the last of the petitions from the Sixth Circuit’s ruling upholding the bans.

Thanks to Equality Case Files for these filings


  • 1. Raga  |  November 17, 2014 at 9:59 am

    Love the succinct summary of the Sixth Circuit opinion in the petition:

    In a 2-1 decision, the Sixth Circuit reversed the district court’s decision. The majority held that –
    (1) this Court’s summary affirmance in Baker v. Nelson was binding on the court and no other decisions of this Court constituted doctrinal developments sufficient to depart from Baker. (discussing Romer v. Evans, Lawrence v. Texas, and United States v. Windsor)
    (2) regardless whether courts have the power to decide whether the Fourteenth Amendment prohibits a definition of marriage like Michigan’s, “in this instance,” it is “better” “to allow change through the customary political process,”
    (3) the applicable standard of review is rational basis, and the“responsible procreation” and “wait-and-see” justifications satisfy that standard, even though “gay couples, no less than straight couples, are capable of raising children and providing stable families for them,” and
    (4) while the right to marry is a fundamental right, the right of same-sex couples to marry is not encompassed within that right.

    The dissenting member of the panel, Judge Daughtrey, disagreed in every respect. For example, the judge would have found that, in light of subsequent doctrinal developments, Baker is no bar to striking down the challenged provisions as violative of the due process and equal protection clauses. As to the central issue at trial, she also noted, inter alia, that the testimony “clearly refuted the proposition that, all things being equal, same-sex couples are less able to provide for the welfare and development of children. Indeed, marriage, whether between same-sex or opposite-sex partners, increases stability within the family unit.” As to the child outcome rationales, the dissenting judge also found that Michigan law “allows heterosexual couples to marry even if the couple does not wish to have children, even if the couple does not have sufficient resources or education to care for children, even if the parents are pedophiles or child abusers, and even if the parents are drug addicts.”

    It is because of the clear holdings (3) and (4) above that I think that a Grant-Vacate-Remand (GVR) is unlikely. It's not that the Sixth Circuit, after loftily claiming that it lacked the authority to decide the issue, left it at that – it went ahead anyway and decided anyway. What is the point of a GVR then?

  • 2. Scottie Thomaston  |  November 17, 2014 at 10:04 am

    Hah I haven't even gotten that far. :p Fighting with WordPress. It doesn't like to work when there is breaking or important news.

  • 3. josejoram  |  November 18, 2014 at 5:47 am

    On my humble opinión the part where it declares to be based on Baker is the best part hence "guides" the Supremes on definitely overcome Baker or whatever doctrine of that sort.

  • 4. guitaristbl  |  November 17, 2014 at 10:11 am

    Finally ! November 17 then is the date it begins…The state has a month to answer if it does not ask for an extension. Even if it does how much extension can it ask for ? I believe the case will be ready for conference by early January. Then it's in the hands of the justices and its their decision whether they will take the case or not..

  • 5. Raga  |  November 17, 2014 at 10:20 am

    I'm a little worried about the extension aspect. I've seen some dockets on SCOTUSblog where the Supreme Court has granted multiple extensions when a state requests it – in some cases, totaling more than a month. If Michigan requests one, I doubt that it'll be denied. Plus, this Court looks like it wants to punt as long as possible, so, isn't it likely that they would seize the opportunity to delay enough to move it to the next term?

  • 6. guitaristbl  |  November 17, 2014 at 10:37 am

    There are 4 votes to grant cert now I am sure of that. I suppose it takes a majority to grant a stay though. I hope Michigan officials play fair game if they believe they have such a good chance of succeeding and do not take more than a month to file a response.

  • 7. DACiowan  |  November 17, 2014 at 7:06 pm

    Take the appeal of the District decision, copy-paste a couple Sutton quotes, submit. Shouldn't take you long, Michigan.

  • 8. DeadHead  |  November 17, 2014 at 11:45 am

    Well if Michigan asks for and is granted an extension causing a delay of not being heard this term, Kentucky's Governor/AG are both Democrats. Since the midterms elections are over maybe they would see no reason to stall with an extension.

  • 9. Mike_Baltimore  |  November 17, 2014 at 12:01 pm

    I can remember an extension being granted in some other ME cases (which ones, I couldn't tell you), but the court is asked for a certain amount of extension, and grants an extension, but the extension is much shorter than asked for. I suspect, if asked for an extension, SCOTUS might go that route.

  • 10. RQO  |  November 17, 2014 at 6:44 pm

    Amidst what I presume is going to a LOT of bickering and jockeying at SCOTUS, can we presume they will want DeBoer included, as kind of the ne plus ultra of cases? In which case they will strive to have it meet deadlines?

  • 11. scream4ever  |  November 17, 2014 at 10:23 am

    The January conference dates are on the 9th and the 16th. I don't see how it won't be ready by then. An extension request may delay it a week at best. Also, Schuette's office has made it sound like they don't plan on delaying this.

  • 12. haydenarwen  |  November 18, 2014 at 3:21 am

    all along MI officials say they want the matter to SCOTUS and the sooner the better…….Really, see no reason why MI will delay as they want this resolved too…. seems like they know that delaying it beyond a month or so would just keep all the manusha churning and spinning for the next year…..

  • 13. Raga  |  November 17, 2014 at 10:23 am

    Another gem of an argument, turning Kennedy's Schuette v. Coalition to Defend Affirmative Action opinion of last term against Michigan:

    Likewise,as to voter-enacted laws, this Court’s decision in Schuette v. Coalition to Defend Affirmative Action itself emphasizes that “the Constitution requires redress by the courts” when “hurt or injury is inflicted on” a minority by the “command of laws or other state action.” (plurality opinion of Kennedy, J.)

    To put this in context, since it was decided, Schuette has been the favorite, go-to, case to support the States' defense that people should decide this issue, not courts.

  • 14. guitaristbl  |  November 17, 2014 at 10:39 am

    A nice spin indeed. Now if we find a way to use Glucksberg in our favour as well, after Hobby Lobby and Schuette, I will take my hat off to those attorneys..!

  • 15. sfbob  |  November 17, 2014 at 10:55 am

    I don't think that will be difficult. Glucksberg, while often cited as making it more difficult to make claims for a "new" fundamental right, functions likewise to create an understanding of what right is being talked about. Indeed I think our side as cited Glucksberg in more than one (successful) case.

  • 16. SeattleRobin  |  November 17, 2014 at 1:13 pm

    I've always seen the opposition's use of Schuette as a desperate move. They use it without context. But anyone with half a brain can see that the fact it was a case about citizens voting NOT to discriminate was key to the decision. (Mind you, I don't believe benevolence was behind the vote, but that doesn't change the facts.) Using Schuette to support the right of states to discriminate against a class of citizens just doesn't work.

  • 17. Raga  |  November 17, 2014 at 10:31 am

    The petition also draws attention to how the Sixth Circuit's opinion squarely conflicts with Lawrence:

    Th[e] reductionist view of the liberties encompassed in marriage [by the Sixth Circuit] contradicts this Court’s view, expressed just over ten years ago, that gay and lesbian people may “seek autonomy” for the same purposes “as heterosexuals do,” including with respect to “personal decisions relating to marriage, procreation,contraception, family relationships, child rearing, and education.”


    Our Constitution protects liberties whose manifestations were not anticipated in the eighteenth century. (“[T]hose who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment … knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”).

  • 18. guitaristbl  |  November 17, 2014 at 10:41 am

    That last paragraph may give the originalists Scalia and Thomas a heart attack apart from the certain blisters. Love it !

  • 19. Eric  |  November 17, 2014 at 11:14 am

    Kenny wrote that in Lawrence.

  • 20. andrewofca  |  November 17, 2014 at 11:16 am

    "Kenny"!? 😉

  • 21. Eric  |  November 17, 2014 at 11:43 am

    <Sigh>, my auto-correct clearly spends more time watching South Park than SCOTUS.

  • 22. josejoram  |  November 18, 2014 at 5:52 am

    Well, Scalia said that women's Rights where not covered by Constitution at all.

  • 23. Lymis  |  November 18, 2014 at 8:18 am

    If Thomas wants to be that much of an originalist, he has some explaining to do regarding his own personhood, not to mention his own marriage.

  • 24. Mike_Baltimore  |  November 17, 2014 at 12:09 pm

    The second quote brings back memories of how 'Plessy v Ferguson' and the concept of 'separate but equal' was eventually overturned by 'Brown v Board of Education', and how the South used Plessy to enact segregation laws.

  • 25. DoctorHeimlich  |  November 17, 2014 at 10:50 am

    It's a solid petition that crams a lot of information and arguments into a tight space. It also quotes Kennedy throughout, working hard to shore up his vote — the throughline here is, "you said all this, so how can you NOT side with us?"

  • 26. DoctorHeimlich  |  November 17, 2014 at 10:58 am

    Also note from the Michigan petition that Mary Bonauto has joined the legal team. As the first lawyer to successfully argue against a marriage ban in court (the Goodridge case, from Massachusetts), she'll be a valuable addition.

  • 27. JayJonson  |  November 17, 2014 at 11:04 am

    Yes, Mary Bonauto is a national treasure. She received a McArthur Fellowship earlier this year, so she can take the time necessary to work on this case. I think she was a little disappointed that her DOMA case wasn't chosen to be heard by SCOTUS last year. If DeBoer is granted cert, she will likely get a chance to make the argument before SCOTUS.

  • 28. Zack12  |  November 17, 2014 at 11:16 am

    She'll be a much needed addition.
    No disrespect to the original MI lawyers but they need a heavy hitter, and Bonauto is that heavy hitter.

  • 29. sfbob  |  November 17, 2014 at 11:19 am

    I was thinking that too. It looks as though the KY legal team is entirely locally-based. If their case is granted cert I hope they're willing to accept assistance from a group with more experience; it would certainly be in their best interest to do so.

  • 30. MichaelGrabow  |  November 17, 2014 at 11:21 am

    I wonder if Olson and Boies and/or Roberta Kaplan will get involved at all.

  • 31. Mike_Baltimore  |  November 17, 2014 at 12:15 pm

    Kaplan is involved in the Mississippi case. It becomes a question of if she feels she can adequately proceed in Mississippi AND do a SCOTUS case, and do both properly.

    It would be great if Kaplan joins a team if SCOTUS grants cert, but IMO, the final decision on how to proceed is hers alone to make.

  • 32. Retired_Lawyer  |  November 17, 2014 at 1:43 pm

    Doc, it may just be a coincidence that tomorrow, Nov.18, is the anniversary of Goodridge v. DPH, 798 N.E. 2d 941 (Mass. 2003).

  • 33. haydenarwen  |  November 18, 2014 at 3:13 am

    Yes that is a good addition. I am not aware at this time if anyone else will be added. will keep folks posted

  • 34. andrewofca  |  November 17, 2014 at 11:19 am

    I was wondering if Roberta Kaplan would get involved. She's originally from Ohio… it would be a very personal fight for her

  • 35. Zack12  |  November 17, 2014 at 11:43 am

    On a related note, here in NY Republicans and the bigots are still angered over Cuomo not giving one of their own a second term on our top court and are holding up the pick for her replacement.
    The quote by the professor here angers me a lot in his incredible tone deafness.
    How about he asks same sex couples in NY how they view a judge who thinks they deserve to be treated as second class citizens about how "moderate" she is.
    I can assure him that many view this judge with as much contempt as Scalia and Alito.
    It took another five years for marriage equality to be brought to NY because of the bigoted majority option this judge signed on to.
    And as someone who went through the fight, I can tell you that it was ugly and as vicious as you can get.
    The idea that same sex couples in every state should be subjected to what occured in NY sickens me.
    And I can tell you this, having it fail when Democrats controlled the Senate by a comfortable margin was a punch in the gut that still haunts me from time to time.
    I'm not sorry at all to see her go. One less bigot to worry about.

  • 36. davepCA  |  November 17, 2014 at 11:46 am

    I just finished reading the petition. That was like a breath of fresh air. For me, it dispelled the last remaining whiffs of that "decision" from the Sixth Circuit. SCOTUS will grant cert, and we will win.

  • 37. debater7474  |  November 17, 2014 at 11:54 am

    I think the concern about extensions has to be seriously considered. I Interned for a law firm that had one of the very last cases of last term. We won at the circuit court and they filed their petiition in mid to-late September, while thanks to extensions we ultimately didn't file our opposition to cert two months later, in mid to late November, and then they filed their reply in mid December. Thus, even with both original briefs in by mid to late November, they barely squeezed us onto the argument calender when they granted cert in early January.

  • 38. Zack12  |  November 17, 2014 at 11:57 am

    I think it is a concern as well but at this point, I am keeping my fingers crossed.
    I do think we will get our case heard but it will be by the skin of our teeth.

  • 39. JayJonson  |  November 18, 2014 at 6:32 am

    Concern is warranted. But I also think the Windsor majority at SCOTUS wants to settle the question once and for all. If DeBoer has not been fully briefed for cert, I believe that they will either go ahead and take it anyway or grant cert to another case.

    I would prefer DeBoer, but in the long run, as long as there are no questions of standing, it may not make any difference which case is chosen.

  • 40. galen697  |  November 17, 2014 at 12:05 pm

    I think I like the Kentucky petition best of all. It keeps the judicial scope very current, relying almost entirely on the recent appellate court rulings, and focusing and clarifying the questions to be determined very well (Whether marriage is a fundamental right, what is the appropriate standard of review for marriage/sexual orientation classifications, does Baker still control and what constitutes a doctrinal development sufficient to allow a lower court to discount such a summary decision). And I love this particular quote: "[A]s a practical matter, waiting for the people to decide an issue of fundamental individual rights by popular vote is often an exquisitely bad idea."

  • 41. Jen_in_MI  |  November 17, 2014 at 1:57 pm

    Completely disagree. The KY case is inferior to the MI case in myriad respects, not the least of which being scope. We would be much better served by SCOTUS granting cert to DeBoer.

  • 42. Zack12  |  November 17, 2014 at 2:08 pm

    I agree, the Kentucky case the 6th heard only dealt with out of state bans.
    The other part wasn't struck down until much later.

  • 43. Eric  |  November 17, 2014 at 2:15 pm

    Baker didn't even address out of state bans.

  • 44. robbyinflorida  |  November 17, 2014 at 2:25 pm

    Plus DeBoer was a full trial denouncing Regnerus.

  • 45. RQO  |  November 17, 2014 at 8:10 pm

    Which would be nice to make Scalia and Thomas read in detail.

  • 46. Brad_1  |  November 17, 2014 at 12:15 pm

    When whatever case gets argued before the Supreme Court, I want our side to be represented by the best legal minds, regardless of who handled the case earlier in the process.

    I sure hope egos don't get in the way of that.

  • 47. debater7474  |  November 17, 2014 at 12:23 pm

    I was really unimpressed by the performance of the lawyers at the sixth circuit. Sutton was like, "Isn't it better to leave it up to the democratic process to win hearts and minds?" "Isn't social change better and more lasting when it comes from the people, not the courts." It was the easiest comeback ever to simply say," So you're saying that when the civil rights advocates came to the supreme court with Brown V. Board, the court should have told them to rely on winning hearts and minds and the democratic process?" After all, the reaction to Brown was the DEFINITION of backlash. The people, indeed, DID NOT accept the results of the decision at first and actively resisted it. That' doesn't mean it was the wrong thing to do. I hope we have a lawyer who is actually competent.

  • 48. Zack12  |  November 17, 2014 at 12:25 pm

    I agree, only one of the lawyers was any good, the rest simply got streamrolled by Sutton.
    In the same breath, I suspect his and Cook's minds were made up before they even heard the case but still, we need better lawyers at SCOTUS.

  • 49. debater7474  |  November 17, 2014 at 1:55 pm

    Oh I agree that oral arguments at the circuit level don't make judges change their mind on this issue. However, we're going to be on the national stage when these things get heard at the supreme court. Under Sutton's formulation, blacks should have waited decades after Brown to get their desegregation changes through the legislative process. We can't afford to have our lawyers tripping over utterly moronic arguments that are so easily obliterated with even a modicum of critical thinking.

  • 50. Raga  |  November 17, 2014 at 5:24 pm

    Debater, see my other reply to your earlier comment below. Give me some concrete examples of when our lawyers (especially Stanyar and Gerhardstein) "tripped over utterly moronic arguments that are so easily obliterated with even a modicum of critical thinking."

  • 51. debater7474  |  November 17, 2014 at 5:47 pm

    It's not point by point, it's the entire argument. Sutton's entire opinion and entire point during argument was, "Well, courts shouldn't make social change, we should leave it up to the people and the legislatures." That was his entire argument. And all it would have taken was for someone to explain to him the history of civil rights movement, and explain to him that under his formulation, blacks should have waited decades after brown v board for the people to finally come around to make the decision in their legislature. At that point, he simply would have had to either defend segregation or abandon his logical principle. If Sutton is CORRECT that social change comes best through legislatures and the people, and avoiding trampling the will of the people, then Brown v. Board was simply wrongly decided. It certainly trampled the will of southern voters and legislatures. The entire point of the argument is to expose why Sutton's central premise is just flat out wrong, which that would have done, in my opinion. Instead, the lawyers seemed to dance around without giving an adequate answer.

  • 52. Raga  |  November 17, 2014 at 7:08 pm

    Yes, when Sutton first brought up courts vs. democratic process, Stanyar quickly responded (paraphrasing) "I'm not at all optimistic that we could get that in Michigan. Secondly, in Frontiero, the Government made that same argument. They said, just wait for the passage of the E.R.A. that would be better. That was 1973 (Frontiero v. Richardson). We would still be waiting now. There is injury – the ban brings injury here." This is exactly what Daughtrey picked up on and later emphasized (in a different context of voting rights for women) in a more humorous exchange with a State attorney.

    Stanyar didn't use the civil rights issue of your choice (segregation), but her response did bring up women's voting rights (among other things). Perhaps we disagree then on the adequateness of this response and its subsequent emphasis by Daughtrey. I think it was perfectly adequate.

  • 53. JayJonson  |  November 17, 2014 at 1:46 pm

    I was also disappointed in the performance in the Sixth Circuit oral arguments. But I agree with Zack12, Sutton and Cook were always going to rule against us. In fact, I think that in most instances oral arguments have relatively little influence. Cases are generally won and lost via the briefs.

  • 54. Zack12  |  November 17, 2014 at 2:05 pm

    That and the judges own personal prejudices.
    The reality is we could have the best lawyers in the world in the sixth circuit and it wouldn't have changed a darn thing.

  • 55. RQO  |  November 17, 2014 at 8:14 pm

    Agreed – we all thought after Posner's opinion and then SCOTUS denial of cert surely Sutton was re-writing his opinion. Nope – his mind hadn't changed since well before any appeals to the 6th.

  • 56. RnL2008  |  November 17, 2014 at 8:52 pm

    Judge Sutton can do this:

  • 57. Raga  |  November 17, 2014 at 5:18 pm

    Debater, and others who are disappointed about our attorneys' performance at the Sixth Circuit, I woud suggest you go back and listen to the Michigan and Ohio parts of the oral arguments. Carole Stanyar had a swift response to every single question that Sutton threw at her. She was quick to quote Barnette to Sutton (the easiest comeback that you point out) when he kept going on and on about the democratic process. I think she is more than competent to represent us before the Supreme Court. The second best was Gerhardstein for Ohio. When Sutton brought up the democratic process again, he essentially shut him up, quite emotionally, by saying "I represent four couples. Their kids deserve two parents. They deserve them today." That was the last time Sutton asked that question (why do you prefer courts to democracy). Admittedly, the Kentucky and Tennessee Plaintiffs' attorneys didnt measure up to the level of Stanyar and Gerhardstein.

    Not too long ago, I listened to the three hours of oral argument again and took notes of the highlights of Sutton's questioning, hoping to get some clarity on which way he might rule. As you can see, Stanyar and Gerhardstein did remarkably well:

  • 58. Zack12  |  November 17, 2014 at 5:31 pm

    Stanyar was the lawyer I was thinking of.
    I would have no problem if she represented us before the court on this one.

  • 59. RemC_Chicago  |  November 18, 2014 at 7:54 am

    OH, I so much appreciate the transcript. Thank you. You are a prince among men!

  • 60. Raga  |  November 18, 2014 at 8:02 am

    You're welcome! It's not the full transcript, as I've done before – just Sutton-specific.

  • 61. jcmeiners  |  November 17, 2014 at 12:44 pm

    I would like to see the case argued by Olson. Not because he may or may not be a better lawyer than Bonauto, but because he is very well known to the justices, and knows them well. It is unlikely that he will rub any of them the wrong way, and they know how to ask him to get the answers they are seeking. The smoother this goes, the better for us, because the facts and the law are on our side.

  • 62. robbyinflorida  |  November 17, 2014 at 1:21 pm

    Scalia will feel "rubbed the wrong way" (even if we use lotion) just for knowing Gay people have access to the Supreme Court again. He wants us to go away and get off of his front lawn.

  • 63. guitaristbl  |  November 17, 2014 at 1:40 pm

    Ted Olson and David Boies would be the ideal team IMO. After cases like when they were one against the other in Bush v. Gore and then joined their forces for prop 8, I just believe they are both high profile and well acquainted with the cause.

    If Kaplan and Bonauto are also in the same team I would not complain, but I am afraid competitive obstacles may get in the way even here (or should I say especially here given how high profile the case is).

  • 64. RQO  |  November 17, 2014 at 8:17 pm

    Don't look now, but I hope their is not a bias in favor of old white men over women.

  • 65. Mike_Baltimore  |  November 17, 2014 at 1:36 pm

    Off topic:

    The 'Advocate' has an article about a win for GLBT rights in the African country of Botswana:
    (… )

    This brings back memories of the 'Romer' decision at the Supreme Court in 1996.

  • 66. Mike_Baltimore  |  November 17, 2014 at 3:26 pm

    Off topic:

    The 'Advocate' has an article about a new study that shows evidence, but not proof, that there is a 'gay gene' in homosexuality:
    (… )

    If true, it makes a lot of sense that the 'X' chromosome is a likely location, since all humans have an 'X' chromosome (men have both an 'X' and 'Y' chromosome).

    In many ways, this study is similar to many of the studies of the corneal disease I have (Fuchs' Endothelial Corneal Dystrophy, aka FECD or Fuchs') – the general location of a gene is known, but not a specific location. And it is not known if one gene is involved, or several, as some people can be diagnosed early (in their 20s or 30s), but others can't be diagnosed until much later in life (60s or later), the disease affects different people differently, and the 'progress' of the disease differs from one person to another. Also unknown is whether certain genes 'counter-act' the gene(s) causing Fuchs'.

  • 67. sfbob  |  November 17, 2014 at 3:45 pm

    I would have other questions besides whether one or more than one gene is involved. First, is there a gene that "causes" (male) homosexuality or does the gene or gene merely increase likelihood under certain unspecified circumstances? It's been suggested in various studies that later male children are more likely to turn out gay, though I'm the eldest and I'm about as gay as you can get. Clearly there are multiple factors at work. Second, is it that there is a gene or a complex of genes that results in homosexuality or is it a genetic disposition on the part of the mother to produce gay male offspring and, of course, last but not least, how would this research apply, if at all, to lesbian children?

  • 68. Mike_Baltimore  |  November 17, 2014 at 5:50 pm

    I'm not sure about latter male children being a 'cause', 'indicator' (or however you want to phrase it) of an increased probability of a person being gay.

    My father had 7 male siblings (13 total siblings, 6 younger than my father, and the final 2 siblings being male), but as far as anyone knows, none were gay or lesbian.

    One of my cousins was gay. Not only was he the eldest male child, he was the ONLY male child with 4 heterosexual sisters.

    One of his nephews was gay. He was the second of two male children.

    I've also met several gays and lesbians who had multiple older siblings.

    My experience wouldn't agree with the increasing probability of being gay or lesbian if they are born later with multiple older siblings. Then again, I've not met all the gays and lesbians, so my experience might be somewhat skewed.

    As to your last question – all humans have an 'X' chromosome, but females have 2. Could it be that there are genes on that 2nd 'X' chromosome that cancel or 'tamp down' the 'gay' gene? That could explain why there are fewer lesbians than gays (as many studies have suggested).

    Nature vs. nurture? I'm of the opinion that it might be nature and nurture (including time in the womb) that helps determine if someone is gay or lesbian, bisexual or transgender.

  • 69. JayJonson  |  November 18, 2014 at 6:46 am

    A problem with anecdotal evidence re the latter male sibling theory is that in particular cases we often don't know whether there had been miscarriages so that the first male child may not really be the first male child. That issue came up in a BBC documentary about John Barrowman, called "The Making of Me." Barrowman agreed to subject himself to all sort of tests and theories about the etiology of homosexuality. When he was told about the latter male sibling theory, he said that could not be correct because he was the only (and therefore the oldest) male among his siblings. When he told that to his mother, however, she revealed that before he was born she had given birth to a still-born male child.

    Similarly, my husband is an only child, but his mother had several miscarriages before he was born. I am a third child, with an older brother and an older sister.

    The BBC series is fascinating and fun (as it would be with John Barrowman) and is available in several segments on YouTube. Here is a link:

  • 70. sfbob  |  November 17, 2014 at 3:46 pm

    Ugh. I intended to uprate your comment and did the opposite by mistake. My apologies, Mike.

  • 71. Mike_Baltimore  |  November 17, 2014 at 5:59 pm

    I think we all have committed that error, so all is forgiven.

  • 72. RQO  |  November 17, 2014 at 8:24 pm

    There is also a theory about mitochondrial RNA (DNA?) and the mother's side suppressing males in the womb, or at lest straight ones. Since my matriarchal line is VERY long on all girls or lots of girls and gays, it piqued my interest, but I never pursued any real knowledge.

  • 73. F_Young  |  November 17, 2014 at 9:13 pm

    Mike_Baltimore: "The 'Advocate' has an article about a new study that shows evidence, but not proof, that there is a 'gay gene' in homosexuality"

    We may be looking for the wrong gene. Instead of looking in men and women for a gene for homosexuality, we perhaps should look in men for an epigene for sexual attraction to men and in women for an epigene for sexual attraction to women.

  • 74. Lymis  |  November 18, 2014 at 8:30 am

    All of that still requires buying into the idea that there is a single homosexuality, even if you are looking only at males.

    That involves assuming that that same gene "causes" RuPaul and Rock Hudson and Larry Craig, the most delicately flamboyant and the hairiest muscle bears. I'm not disputing that it might, but it's also entirely possible that there are more than one completely unrelated genetic causes.

    Especially since for the purposes of such research, "homosexual" is essentially defined simply as "not heterosexual" and lumping everyone together. That may not be valid.

  • 75. sfbob  |  November 18, 2014 at 8:35 am

    I can only assume that the "homosexuality" being studied is the defined as…well I hope they are defining it somehow or other in their study. But my assumption here is that it is being defined as the propensity to be attracted physically and perhaps emotionally to the gender that one is, rather than or at least more so than to the gender that one is not.

  • 76. StraightDave  |  November 18, 2014 at 10:38 am

    Clearly there are degrees along the spectrum: homo-bi-hetero. A single on/off gene is not likely sufficient to explain all of that. Geneticists are recently discovering that a lot of "genetically-determined" attributes do not come down to a single gene. There are plenty of other influencers and enablers lurking off to the side that are part of the equation. Sequencing our DNA appears to have been just scratching the surface of what's going on.

  • 77. Mike_Baltimore  |  November 18, 2014 at 10:55 am

    It's like the FECD I and my family have.

    Some relatives have had corneal transplants, but their children either don't have FECD, or have it in a weak manner so that they may never need a transplant.

    There could be multiple genes involved, but since the purpose of genes is to influence the production of (or actually produce) hormones, it could be that the hormones are of different 'quality' that causes the differing outcomes.

    The fact that not all identical twins are of the same sexual outlook (identical twins tend to be of the same sexual outlook, but it is not a 100% correlation) tells me that it is not pure genetics at work, but some combination of genetics and something else (or maybe several something elses). That is why I think it is more likely to be nature and nurture in some combination.

  • 78. worldcup26  |  November 17, 2014 at 3:39 pm

    Well, we got at least 3 more counties in Kansas. Not sure what the Kansas Supreme Court is having such a hard time about issuing an order. It's not like they have a choice here of what to do.

  • 79. RQO  |  November 17, 2014 at 8:25 pm

    When does Dorothy get to pour a bucket of water on Brownback?

  • 80. dorothyrothchild  |  November 17, 2014 at 4:34 pm

    Was so hoping Mississippi would come down today. After watching the Showtime documentary, it's heartbreaking to see what these women face on a daily basis.

  • 81. EllieInMalibu  |  November 17, 2014 at 5:00 pm

    That was a great film. Highly recommend it.

  • 82. brooklyn11217  |  November 17, 2014 at 6:05 pm

    Sorry for missing this, but could you provide more details on this documentary? I don't have Showtime, so probably won't be able to watch it, but to make a note for future availability. Thanks!

  • 83. EllieInMalibu  |  November 17, 2014 at 6:30 pm

    L Word Mississippi: Hate the Sin. Since the last iOS upgrade I can't seem to paste links anymore but it's a look into what it's like to be lesbian in the deeply religious south.

  • 84. DrBriCA  |  November 17, 2014 at 11:23 pm

    I was hoping we'd get a ruling of some sort today as well. Off the top of my head, federal decisions are pending from Mississippi and Montana, as well as decisions about stays for Kansas (state supreme court) and South Carolina. But the majority of the news today was on the petition filing for SCOTUS and for Nebraska. Fingers crossed for tomorrow!

    It would be nice to officially get Montana and SC as well as a favorable ruling in Mississippi before everything likely pauses once SCOTUS decides on cert. within (hopefully) two months!

  • 85. DACiowan  |  November 17, 2014 at 11:54 pm

    Plus getting the Kansas state Supreme Court would be nice so the AG shuts up and all counties start issuing.

  • 86. scream4ever  |  November 18, 2014 at 8:48 am

    Also state court rulings in Missouri, Arkansas, and Florida, although those could come even after the Supreme Court grants cert I suppose.

  • 87. Zack12  |  November 17, 2014 at 5:31 pm

    I would say this, it is downright scary that our fates are going to come down to one man in the form of Anthony Kennedy.
    No one should have that much power.

  • 88. StraightDave  |  November 17, 2014 at 7:02 pm

    Would you rather leave it up to the 5,000,000 voters in MI?

  • 89. Angry Flame Fox  |  November 17, 2014 at 7:04 pm

    It's still a scary thought, right?

  • 90. JayJonson  |  November 18, 2014 at 6:57 am

    Yes, it is very scary, not so much about Kennedy per se, but about any of the Windsor 5, any of whom could for any reason–illness, death, or some other reason–not be able to give us the right ruling. That is why it is imperative that we get a ruling as soon as possible and as definitive as possible.

    I feel like a broken record, but time is not on our side re the Supreme Court.

    Even without a SCOTUS ruling, we will eventually achieve equal rights in this country. But without a SCOTUS ruling, it probably will not be until after my life is over (and that of many other EoT readers). Without a SCOTUS ruling, the country will continue to be divided into pockets of equality and areas of oppression.

  • 91. Ryan K (a.k.a. KELL)  |  November 18, 2014 at 12:38 pm

    That's what boggles me when people here and outside of EoT indicate there is no "rush" to get to the SCOTUS now. The only way it gets better is if for some reason two years from now we have a Democrat succeed Obama, the Senate returns to the Democrats (in a large way), and Scalia somehow comes off the bench, so maybe we get a 6-3 ruling.

    Not seeing that all happen, let's take our 5-4 Kennedy majority opinion and get our fundamental rights provided to us.

  • 92. Angry Flame Fox  |  November 17, 2014 at 6:27 pm


  • 93. Raga  |  November 17, 2014 at 7:10 pm

    Hi, I'm curious, are you related to ragefirewolf?

  • 94. Angry Flame Fox  |  November 17, 2014 at 7:15 pm

    I am he of whom you speak.

    This isn't even my final form! MUAHAHAHAHAHA!

  • 95. Raga  |  November 17, 2014 at 7:17 pm

    Oh wow. You've transformed 🙂

  • 96. Angry Flame Fox  |  November 17, 2014 at 7:19 pm

    So have you. You've gone full Raga. 🙂

    No more Vendran. I hope it was a Velvet Divorce type of change. 🙂

  • 97. Raga  |  November 17, 2014 at 7:38 pm

    Truth be told, I was getting tired of people abbreviating my name to "Rag". And everybody I interact with in the physical world calls me "Raga" which is my preferred abbreviation 🙂

  • 98. Angry Flame Fox  |  November 17, 2014 at 7:45 pm

    I honestly preferred your full name. I thought it was very handsome and almost cosmic, like the name you'd give a bright star in the night sky.

  • 99. Raga  |  November 17, 2014 at 7:55 pm

    Aww, thanks!

  • 100. Jen_in_MI  |  November 17, 2014 at 10:50 pm

    That's beautiful! *clap clap clap*

  • 101. Angry Flame Fox  |  November 18, 2014 at 3:47 am

    Thank you, Jen

  • 102. LK2013  |  November 17, 2014 at 8:09 pm

    In the midst of our struggle for equality, appears this tidbit about marriage, which – while still denied to so many loving couples – continues to be open to the most repulsive human beings:

  • 103. Raga  |  November 17, 2014 at 9:45 pm

    I was just going to post it here and saw your post. Hope this shows up in the Supremes' news feed.

  • 104. sfbob  |  November 18, 2014 at 8:37 am

    I'd be content if it showed up in the legal briefs.

  • 105. Lymis  |  November 18, 2014 at 8:34 am

    Yes, what i've said all along is that people look at it backwards. Even if marriage actually were all about parenting, the appropriate analysis isn't whether gay people are the very best parents, but whether ANY gay people are better parents than the very worst of the straight people who are allowed to marry.

    Which is a pretty damn low bar – and this just lowers it further.

  • 106. ijsnyder  |  November 17, 2014 at 10:08 pm

    Hahaha FantasySCOTUS!?!
    Check this out! I wonder if Berlove has an early prediction for the marriage cases.

  • 107. Cristianos Gays » C&hellip  |  November 20, 2014 at 9:31 pm

    […] En Ohio, Michigan, Kentucky y Tennesse, las sentencias favorables dictadas por los jueces federales han sido revocadas por la Corte de Apelaciones del 6º Circuito, la única en dictaminar en contra de la igualdad de derechos de las personas 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 estados. […]

  • 108. Cristianos Gays » P&hellip  |  January 16, 2015 at 8:17 pm

    […] En Ohio, Michigan, Kentucky y Tennessee, las sentencias favorables dictadas por los jueces federales han sido revocadas por la Corte de Apelaciones del 6º Circuito, la única en dictaminar en contra de la igualdad de derechos de las personas 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 estados. […]

  • 109. Cristianos Gays » N&hellip  |  January 26, 2015 at 9:59 pm

    […] 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, este ha decidido que en el próximo período de […]

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