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Equality news round-up: Mississippi marriage equality trial transcript, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

ks– The transcript from the federal district court hearing in the challenge to Mississippi’s same-sex marriage ban can be read here.

– The Washington Post reports on the latest in Kansas.

– In the most recent appeal to the Third Circuit, challenging New Jersey’s ban on so-called LGBT conversion therapy, Governor Christie and Garden State Equality have filed their briefs.

– Chris Johnson from the Washington Blade notes that Michigan officials have said they will file a notice that they aren’t opposing the petition for review in the Supreme Court filed by the plaintiffs yesterday.

Thanks to Equality Case Files for these filings

100 Comments

  • 1. DACiowan  |  November 18, 2014 at 8:43 am

    Eleven counties are issuing out of 105 in Kansas: https://www.facebook.com/EqualityKansas . However, that includes every county over 100,000 people except Johnson which is still barred by the state Supreme Court.

  • 2. Angry Flame Fox  |  November 18, 2014 at 10:30 am

    WTF are they waiting for?

  • 3. DACiowan  |  November 18, 2014 at 10:40 am

    The Governor and AG have them all worried that the ban isn't dead unless the state Supreme Court agrees.

    It's foolish, but it's Kansas.

  • 4. Brad_1  |  November 18, 2014 at 11:11 am

    "It's foolish, but it's Kansas." New state motto?

  • 5. StraightDave  |  November 18, 2014 at 10:50 am

    Part of the problem is that the question doesn't belong to the KS SC. It's a federal issue that's now been settled. Johnson Cty is the only place legally on hold, which I expect to be disposed of today (I might be disappointed, but it "should" happen ASAP). If people are sitting around waiting for the KSSC to say something about the federal case, they're dreaming. What I'd like them to say is, "Hey, all you morons, go home! It's over." But they won't, of course.

    and yes, it's Kansas 🙁

  • 6. Angry Flame Fox  |  November 18, 2014 at 10:55 am

    Well…the Kansas Supreme Court can review state law in terms of the federal Constitution, but they aren't in this case at all. They need to drop their stay, which is taking WAY too long.

  • 7. jm64tx  |  November 18, 2014 at 11:46 am

    No part of the problem is that it doesnt belong in federal court. The KS SC already upheld the Kansas ban against a federal constitutional challenge. So the KS judges have to follow that precedent, as they are bound by it.

  • 8. A_Jayne  |  November 18, 2014 at 12:20 pm

    No, the case has already been heard in multiple federal courts, including one in KS, and federal courts have jurisdiction over state laws found to be in violation of the US Constitution. KS is bound by the decision at the 10th Circuit striking the bans. That's the one the SCOTUS declined to hear, remember? Therefore, even the SCOTUS has spoken, and KS must comply.

    (In addition, SCOTUS refused to grant a stay in the federal case, so there's that on top of everything else…)

  • 9. jm64tx  |  November 18, 2014 at 3:27 pm

    Thats incorrect. It doesnt matter what a federal court says as to one couple … the KS SC already ruled for the entire state.

    KS judges are not bound by 10th circuit precedent. Only federal judges are bound by lower federal precedent. State judges are bound only by State Courts of Appeals and SCOTUS.

    Federal district judges cannot overturn the state supreme court … only SCOTUS can do that and they already denied cert from the earlier KS SC ruling.

  • 10. DEV_ally  |  November 18, 2014 at 4:17 pm

    I have not actually found a case that has been brought before the KS Supreme Court that challenged the constitutionality of the Kansas' Amendment 1, which banned gay marriage and recognition of gay marriages performed outside of the state. If there is one, can you please cite it?

  • 11. DrPatrick1  |  November 18, 2014 at 2:21 pm

    You have made this claim before. No one here is aware of anytime the KS SC has upheld a KS ban against a US Constitutional challenge. Please do NOT make this same claim unless you back it up with some reference for others to verify what you say.

    We (the royal we if you will) have ALL told you your statement is false. If you believe otherwise, please back it up!

  • 12. jm64tx  |  November 18, 2014 at 3:36 pm

    Matter of Marriage of Gardiner , Kansas Supreme Court, 2002.

    " The legislature has declared that the public policy of this state is to recognize only the traditional marriage between "two parties who are of the opposite sex," and all other marriages are against public policy and void. We cannot ignore what the legislature has declared to be the public policy of this state. Our responsibility is to interpret K.S.A. 2001 Supp. 23-101 and not to rewrite it. That is for the legislature to do if it so desires. If the legislature wishes to change public policy, it is free to do so; we are not. To conclude that J'Noel is of the opposite sex of Marshall would require that we rewrite K.S.A. 2001 Supp. 23-101. "

    "The Court of Appeals is affirmed in part and reversed in part; the district court is affirmed. "

    SCOTUS denied cert: 537 US 825.

  • 13. jm64tx  |  November 18, 2014 at 3:36 pm

    Matter of Marriage of Gardiner , Kansas Supreme Court, 2002.

    " The legislature has declared that the public policy of this state is to recognize only the traditional marriage between "two parties who are of the opposite sex," and all other marriages are against public policy and void. We cannot ignore what the legislature has declared to be the public policy of this state. Our responsibility is to interpret K.S.A. 2001 Supp. 23-101 and not to rewrite it. That is for the legislature to do if it so desires. If the legislature wishes to change public policy, it is free to do so; we are not. To conclude that J'Noel is of the opposite sex of Marshall would require that we rewrite K.S.A. 2001 Supp. 23-101. "

    "The Court of Appeals is affirmed in part and reversed in part; the district court is affirmed. "

    SCOTUS denied cert: 537 US 825.

  • 14. jm64tx  |  November 18, 2014 at 3:36 pm

    Matter of Marriage of Gardiner , Kansas Supreme Court, 2002.

    The KS Court of Appeals ruled:

    "J'Noel's argument concerning equal protection fails. The Fourteenth Amendment to the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." When J'Noel was found by the district court to be a male for purposes of Kansas law, she was denied the right to marry a male. It logically follows, therefore, that the court did not forbid J'Noel from marrying a female. Federal law allows a state to not give effect to another state's recognition of a same-sex marriage. 28 U.S.C. §1738C (1996). Kansas law forbids same-sex marriages. K.S.A. 2000 Supp. 23-101."

    The KS SC ruled:

    " The legislature has declared that the public policy of this state is to recognize only the traditional marriage between "two parties who are of the opposite sex," and all other marriages are against public policy and void. We cannot ignore what the legislature has declared to be the public policy of this state. Our responsibility is to interpret K.S.A. 2001 Supp. 23-101 and not to rewrite it. That is for the legislature to do if it so desires. If the legislature wishes to change public policy, it is free to do so; we are not. To conclude that J'Noel is of the opposite sex of Marshall would require that we rewrite K.S.A. 2001 Supp. 23-101. "

    "The Court of Appeals is affirmed in part and reversed in part; the district court is affirmed. "

    So KS SC upheld the KS Court of Appeals which ruled that no 14th amendment violation in the KS ban.

    SCOTUS denied cert: 537 US 825.

  • 15. Raga  |  November 18, 2014 at 3:53 pm

    The Kansas Supreme Court disagrees with you. Read their latest order released today where they've gracefully bowed out of this issue until the federal case is finalized by the federal courts. In particular:

    "We hold that judicial comity and other principles favor waiting for the federal courts to finish the task begun in that jurisdiction. In part, the doctrine of comity recognizes the necessity of avoiding conflicts in the execution of judgments between state and federal courts."

    http://www.scribd.com/doc/247044630/112-590-Order

  • 16. Raga  |  November 18, 2014 at 3:53 pm

    The Kansas Supreme Court disagrees with you. Read their latest order released today where they've gracefully bowed out of this issue until the federal case is finalized by the federal courts. In particular:

    "We hold that judicial comity and other principles favor waiting for the federal courts to finish the task begun in that jurisdiction. In part, the doctrine of comity recognizes the necessity of avoiding conflicts in the execution of judgments between state and federal courts."

    http://www.scribd.com/doc/247044630/112-590-Order

  • 17. jm64tx  |  November 18, 2014 at 4:13 pm

    "We emphasize that we are not concluding Chief Judge Moriarty was correct in determining that the Kansas ban is unconstitutional…"

    Do you see what they did there? They reserved the question for themselves. So they are going to wait and see and then make a decision.

    This is going to be interesting.

  • 18. hopalongcassidy  |  November 18, 2014 at 4:16 pm

    What is really going to be interesting is watching you swallow your own asshole.

  • 19. Raga  |  November 18, 2014 at 4:19 pm

    "What they did there" was they let the federal courts proceed and determine the outcome conclusively, instead of deciding the constitutionality of the ban themselves. If they had already ruled on the issue as you keep insisting, they wouldn't have done that, and they would have surely cited the case where they supposedly upheld the ban. Plus, once the US Supreme Court rules on the matter, as they readily admit it most likely will, there is nothing they can do to revisit what question "they reserved for themselves" according to you.

  • 20. SteveThomas1  |  November 18, 2014 at 4:24 pm

    Actually, declining to answer a question is not the same thing as promising to answer it in the future. In declining to answer the question, they are merely declining to answer it. If the process of appellate review of the Kansas federal district court's decision comes to an end without reversing the decision already made, the result of that process would be that the Kansas federal district court's answer to the question would become "final", and considerations of comity (which the Kansas Supreme Court appealed to in *declining* to answer the question) would counsel in favor of the Kansas Supreme Court *accepting* the final answer of the Kansas federal district court. If the answer that the Kansas federal district court gave is reversed, a new or different answer might become final (or perhaps the Kansas federal district court's answer would simply be erased).

    I think most observers believe that, given the signals being put out by SCOTUS in its denials of cert. and refusals to stay proceedings pending appeal, it is very likely indeed that the answer to the question already made by the Kansas federal district court will become final and that the Kansas Supreme Court will not revisit the issue again.

  • 21. DrPatrick1  |  November 18, 2014 at 5:48 pm

    Giving you the best possible light, KS is reserving the question until the Federal courts have resolved this issue before it hears arguments addressing this issue. Of course, we can both agree that if (when) SCOTUS decides a marriage equality case head on, that will certainly inform how the KS SC would address the issue.

    If, and this is a huge if, SCOTUS denies cert in all cases (almost unthinkable given the fresh circuit split created by the 6th circuit) then it will undoubtedly fall to the KS SC to reconcile the KS Gardiner case (if the case is really as you present it) with the now current KS policy of issuing marriage licenses in equal fashion. Perhaps they would reverse their previous (and wrong) decision. Perhaps they would not (and they are not bound by the federal courts with the sole exception of the SCOTUS itself) and it would be appealed again to SCOTUS. It is exactly this reasoning which compels SCOTUS to take up a 6th circuit case. The KS SC agrees with this, and thus is deferring to the federal courts, as surely SCOTUS must take a case, and if/when they do, nothing the KS SC decides will have any merit if it contradicts SCOTUS.

  • 22. SteveThomas1  |  November 18, 2014 at 5:55 pm

    You pretty clearly don't get comity, which is the set of considerations which the Kansas Supreme Court is looking at (as they themselves say). The Kansas Supreme Court is not itself bound by decisions of the 10th Circuit, but officials in Kansas *are* bound by federal injunctions issued by a court (like the federal District Court of Kansas) having jurisdiction over the area. And comity tells courts not to interfere with each others' injunctions if it can be avoided.

    In particular, an injunction issued by a federal district court construing the Constitution of the United States is binding on state officials acting in a ministerial capacity (as the Kansas judges in charge of issuing marriage licenses are) under the Supremacy Clause and state courts are not free to contradict them. Particularly once they become final.

  • 23. DrPatrick1  |  November 18, 2014 at 7:18 pm

    Please reread my comments before you denigrate me!

    I reread them myself, and do not see anything wrong with what I wrote, but for your sake I will try to clarify below (with some new information after finishing the Gardiner decision)

    First, the hypothetical situation I laid out was one in which the KS SC (as stated by the troll above) ruled that the marriage laws in KS were constitutional. (In truth, no such decision ever happened). In that scenario, and assuming SCOTUS denies all cert petitions re marriage equality and all pending federal cases finalize without a SCOTUS ruling, then the KS SC decision upholding the constitutionality of the KS laws would not be overruled, and there would yet remain a conflict between the KS SC ruling and the 10th CA ruling which could leave some work for the KS SC to clean up. If they then decided the laws remained constitutional, it would be up to SCOTUS to decide if they would grant cert in that appeal.

    Please understand that this hypothetical has many false assumption, and at least one false premise. First, it would be unconscionable for SCOTUS to deny cert in a marriage case now there is a fresh circuit split with the 6th. I suppose they could delay and wait for a broader selection of cases to choose from, but they almost certainly will not deny cert in these cases before granting cert in at least one marriage case. Finally, and perhaps most importantly to this discussion, I am not aware of any KS SC decision which has dealt with the constitutionality of the KS marriage laws with respect to same sex marriages. So, as of now, there is no state court precedent which would provide any legal cover for the anti equality crowd to use to continue to deny marriage licenses in an equal way.

    I am not a lawyer, and I don't pretend to have a perfect grasp of all these technical legal issues which has even constitutional scholars debating. Except for your choice to attack me, I agree with your statement above, but I don't see how it contradicts what I said above. Perhaps you misunderstood my comment, and maybe this helped to clarify…

  • 24. SteveThomas1  |  November 18, 2014 at 7:37 pm

    On the other hand, perhaps you didn't understand my comment. (No doubt that's because I didn't express myself very well.) You really don't seem to understand comity. That's not unusual, because the concept is quite amorphous and difficult to precisely define. Nevertheless, the Supremacy Clause of the Constitution and the admittedly hazy notion of comity in practical effect gives federal courts a preferred role in interpreting the US Constitution (just as state appellate courts have the preferred role in interpreting state law, even though federal courts are often called upon to construe state law).

    Thus, even if there were a final Kansas Supreme Court case holding that there was no federal constitutional right to marriage equality, it would not at all be the case that the federal courts would have to abstain from making an independent determination of federal law, and if they found to the contrary they would almost always win.

    If you've been reading the papers submitted by the opponents of marriage equality, you will have seen a bunch of references to various abstention doctrines and a "domestic relations exception". These are all actually different arguments from the arguments concerning comity (although the Kansas AG did specifically discuss comity – but he got it backwards). And they are all more or less irrelevant to the issues actually present in these cases.

  • 25. DrPatrick1  |  November 18, 2014 at 7:58 pm

    Yet, I never argued that the federal courts should abstain from deciding this case. I never argued that the KS SC should, without a SCOTUS decision, decide differently from the 10th CA. So why do you keep thinking I did.

    I was discussing what the KS SC could do, if they had a binding KS SC decision contrary to a 10th CA decision.

    Are you arguing that comity would forbid the KS SC from hearing a case if an anti equality judge or even clerk in KS refused to issue marriage licenses citing a previously controlling KS SC decision if there is never a SCOTUS decision which contradicts the KS SC decision?

    (Please note, I do not believe such a decision exists, but as mentioned earlier, there is a troll here who has been arguing that such a precedent does indeed exist)

    I do not understand why we seem to be missing each other's point.

  • 26. SteveThomas1  |  November 18, 2014 at 8:35 pm

    No, notions of comity are highly specific to the situation, which is one reason why it's hard to define with any precision. For example, once the federal district court issues a permanent injunction and it becomes final, the Kansas courts could hear cases implicating marriage equality in some respects. Should an anti-equality judge or clerk refuse to comply with the injunction, there might be circumstances in which the Kansas courts could become involved, depending on the particulars of the case. (It's entirely possible that the federal district court would retain jurisdiction for the purposes of enforcing its judgment, in which case Kansas state courts should probably defer to the federal court. But after some passage of time, they might well conclude that a simple affirmation of the duty to comply with a federal injunction was simple enough not to need to go to the federal court.) What they could not do is void the injunction on the grounds that they aren't bound by 10th Circuit precedent, even if there's never (or not yet) a SCOTUS precedent on point. And what comity would tell them to do is not to even try.

    Similarly, the federal district court would not be bound by a Kansas Supreme Court decision that was squarely and exactly on point on the issue, particularly if it conflicted with circuit precedent. The federal district courts are bound by decisions of their circuit courts of appeals, but (as to federal law) are not bound by state court decisions. (They are bound by state court decisions when they are deciding a question of state law, however.)

    The Kansas situation is also unusual because in Kansas, apparently, the officials giving out marriage licenses are technically members of the judicial (rather than the executive) branch. So in Kansas some of the actions the judiciary take in this area are not actually the results of "judicial" processes, but are ministerial in nature. This adds a considerable amount of complexity to the issues, complexity with the Kansas AG has tried (unsuccessfully) to harness to delay matters there. Fortunately, the Kansas Supreme Court didn't follow his lead.

  • 27. DrPatrick1  |  November 18, 2014 at 8:48 pm

    Ok, I'm going to bed. It seems that despite your contention, you really didn't disagree with my original or subsequent statements. Certainly, you are arguing about a different aspect of this case, but have yet to point out where I have erred. In any case, it would seem the original hypothetical is irrelevant to what is actually happening, and our continued discussion is without purpose.

    I enjoyed reading what you have said, and I take no issue, find no fault, with what you have written. Only, it seems that your disagreement seems to be with something other than what I was writing.

  • 28. SteveThomas1  |  November 18, 2014 at 9:11 pm

    Here's what you wrote that I thought I was disagreeing with:

    "Giving you the best possible light, KS is reserving the question until the Federal courts have resolved this issue before it hears arguments addressing this issue. Of course, we can both agree that if (when) SCOTUS decides a marriage equality case head on, that will certainly inform how the KS SC would address the issue."

    I took the "you" in the post of yours which I disagreed with to refer to me, because your post was directly below mine, which responded to the aforesaid troll. I now see that your post was not indented further than mine, which means you meant "you" to refer to him rather than to me, so my misapprehension of where your post was directed colored my writing, for which I apologize.

    I now see that you were assuming for the purposes of argument that the Kansas Supreme Court was reserving the federal constitutional question. I was misreading you to be asserting that they were reserving that question.

    I'm denying that the Kansas Supreme Court is reserving the issue because it's planning on getting around to considering it in the future. They're not *precluding* considering it in the future, but they're also not currently *planning* on considering it in the future. To the extent that the federal district court issues the expected permanent injunction, they will not have any occasion on which to consider it in the future.

    I don't think (now that I've read your remarks carefully) that you and I are actually disagreeing. As Emily Litella used to say: "Oh, that's different! Never mind."

  • 29. DrPatrick1  |  November 19, 2014 at 9:57 am

    I agree, we were never disagreeing, but it turned out to be a pleasant non debate. Cheers

  • 30. DrPatrick1  |  November 18, 2014 at 5:23 pm

    Interesting that your case cites from a law ruled unconstitutional by SCOTUS (I realize the pertinent section of DOMA has yet to be addressed by SCOTUS, but even you could not claim the rationale used in section 3 is any less constitutional than section 2. If you accept that section 3 is unconstitutional, you must agree that section 2 is unconstitutional. Scalia and his ilk are not forever bound by "bad precedent" but the rest of this country is. So while I may agree with the DOMA decision, and you may disagree, we are both equally bound by it!)

    I'm glad that you provided a reference to back up your argument, though I doubt it will support you in the way you think it will…

  • 31. DrPatrick1  |  November 18, 2014 at 6:55 pm

    Ok, so I finally made it through this case you cited. NOWHERE in the KS SC did they reference, in determining how they would decide, the US constitution, and NOWHERE did they interpret any portion of the constitution. They specifically stated they were only faced with the question of whether the wife, in this case, was a woman for the purposes of the KS marriage statute. They were not asked wether it was constitutional for a man to be married to a man, only wether a transsexual woman (their term) was a woman in the ordinary sense for the purposes of the KS marriage statutes. In their decision, they found that the legislature did not consider transsexuals (again their term) for the purposes of marriage, and it was not the courts' job to broadly interpret legislative intent. Thus, they interpreted KS statutes, and found that as applied to that case, the marriage was void.

    Interestingly, this case was specifically a question of opposite sex marriage and not a question about same sex marriage.

    So again I ask you, in what case did the KS SC interpret the US Constitution to find the KS statutes or constitution was not Unconstitutional, per the US Constitution? Readers of this site have failed to come up with one example, and you have declared on multiple occasions that such a case existed. Please reread the Gardiner decision and let me know where the US constitution was used in the case (there was much talk about whether the district court gave full faith and credit to the WI laws, but ultimately even that was not an issue with how the KS SC decided whether or not the marriage was valid) to declare the KS statute to be constitutional. If unable to do so, and indeed you will not find success, please cite another example, or admit you were mistaken!

  • 32. Rick55845  |  November 18, 2014 at 7:02 pm

    Or jm64tx could just slink off into the shadows, and that would be OK too.

  • 33. jm64tx  |  November 18, 2014 at 7:16 pm

    Do you not understand what it means when the Kansas Supreme Court AFFIRMS the decision of the Kansas Court of Appeals?

    The parties argued before the Kansas Court of Appeals:

    "J'Noel argues that the district court's decision violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by not recognizing J'Noel's legal status as female and denying J'Noel the right to marry."

    "J'Noel's argument concerning equal protection fails."

    That decision was AFFIRMED by the Kansas Supreme Court. That means it was CORRECT. Therefore, the Kansas ban was upheld against a federal constitutional challenge by the Kansas Supreme Court.

  • 34. DrPatrick1  |  November 18, 2014 at 7:27 pm

    One of us is using a bad text. Here is my source. http://www.kscourts.org/cases-and-opinions/opinio

    Please provide your source. I do not see the words "equal protection" used in the KS SC decision. Perhaps you have a better source than I do, can you provide yours?

    And if your quote is correct, I think it reads a bit odd, and I wonder if you made a mistake. I don't see how the 14th amendment to the US constitution has anything to do with whether the wife was a woman or not. She never argued (and I would find it quite odd if she did) that she was a man, and that as a man she should be entitled to marry another man. Her entire case was that she was a woman!

  • 35. DrPatrick1  |  November 18, 2014 at 7:45 pm

    You are quoting from the appeals court, not the KS SC. They did not discuss the 14th amendment. Briefly, in the appeals court, she argued that the 14th amendment was violated in not recognizing she was a woman. The appeals court rejected this saying she did not bring this issue up in the district court and could not do so now. Thus, they ruled the marriage statute did not violate the 14th amendment IN NOT RECOGNIZING SHE WAS A WOMAN. Nowhere does she claim to be a man, no where does she claim that as a man she has a right to marry another man, and nowhere does she use any part of the US Constitution to assert as a man a claim to be lawfully married to another man!

    Your attempt to use this case to prove your point is disastrous!

  • 36. jm64tx  |  November 19, 2014 at 12:46 am

    "Thus, they ruled the marriage statute did not violate the 14th amendment IN NOT RECOGNIZING SHE WAS A WOMAN. "

    Nope. Point no. 10 from the Court of Appeals:

    "10. The prohibition in K.S.A. 2000 Supp. 23-101 barring same-sex marriages does not violate the Equal Protection Clause of the United States Constitution."

    The court itself says that is its holding. It was affirmed by the Kansas Supreme Court.
    http://www.kscourts.org/cases-and-opinions/opinio

  • 37. DrPatrick1  |  November 19, 2014 at 10:14 am

    You are so close to being correct, yet you couldn't be more wrong at the same time.

    The question of same sex marriage was not before the district court, not before the court of appeals, and certainly not before the KS SC. This court supplied summary, of which you are citing number 10, was not debated by the court. Certainly, the appellant in that case had no desire to argue that point, and that point was not before the court. Although I think it was both unnecessary and legally incorrect to have that point on the appeals court ruling, it is of no legal consequence. This point was not argued at the KS SC, it made no part of the ruling. In fact, the ruling stated the only issue before the court was whether the district court erred in its summary judgement the the marriage was void. They ruled it was void because KS marriage law was between one man and one woman, and they ruled that transsexuals were neither a man nor a woman. They found that the marriage involving a transsexual violated the public policy of KS. They never considered whether this violated the 14th amendment to the US constitution.

    Indeed, they never had before them the issue of same sex marriage. Please stop insisting otherwise because you are plainly mistaken!

  • 38. DrPatrick1  |  November 19, 2014 at 10:18 am

    She raised the 14th amendment with respect to her gender not being recognized (as stated in the appeals court decision. You will have to read past the summary!) not whether her marriage should be recognized with her as a man. She never argued she was a man seeking recognition of a same sexed marriage!

  • 39. Wolf of Raging Fires  |  November 18, 2014 at 7:38 pm

    Oh, would you stop already?! Gods.

  • 40. hopalongcassidy  |  November 18, 2014 at 12:03 pm

    Christmas. They are praying to Jebus for a miracle.

  • 41. DACiowan  |  November 18, 2014 at 12:38 pm

    I crunched the numbers and the now 12 counties in Kansas add up to 41.3% of the state's population. Adding just Johnson (the most populous in the state) would be 60.6%.

  • 42. MichaelGrabow  |  November 18, 2014 at 10:08 am

    No surprise here:
    http://www.wapt.com/news/ms-governor-will-appeal-

    "This is something the people of the state of Mississippi voted overwhelmingly to support…"

    It kills me that people are dense enough to think that A. These bans passed with actual majorities and B. That public opinion does not change over ten years.

    957,104 yes votes
    2,984,926 population (granted, that is an estimate as of 2012)

  • 43. RobW303  |  November 18, 2014 at 10:48 am

    C. A state can vote away the federally guaranteed civil rights of a minority.

  • 44. RnL2008  |  November 18, 2014 at 1:00 pm

    They can, but the right legal challenge will toss them out as being Discriminatory……and soon the Justices will start seeing the animus and issue rulings regarding it as a reason those laws were enacted in the first place!!!

  • 45. wkrick  |  November 18, 2014 at 12:14 pm

    Yep. This is probably my number one pet peeve when it comes to discussion of marriage equality bans in the news or by politicians. They keep saying "majority, majority, majority" and "will of the people" when the actual percentages of total citizens, total eligible voters, or even total registered voters are always very small and always less than a majority. The only time they get a majority is when they look at the percentage of the people who actually voted. This is a distinction that needs to be made and people need to call them on it.

  • 46. RnL2008  |  November 18, 2014 at 1:06 pm

    Funny how those folks DON'T acknowledge the "WILL" of the voters when other issues are tossed like Prop 63 and Prop 187 here in California regarding the State Language and Illegal Immigration…….the "WILL" of those voters DIDN'T matter much, but the "WILL" of the voters who voted in these DISCRIMINATORY bans should be considered……umm, NO!!!

  • 47. wes228  |  November 18, 2014 at 1:27 pm

    That actually doesn't bother me at all. Elections are not decided by people who don't vote.

  • 48. wkrick  |  November 18, 2014 at 2:18 pm

    Amendment 1 was passed in North Carolina by less than 21% of registered voters. If you look at the number of votes cast vs the number of people living in North Carolina, it was passed by less than 15% of the "people of North Carolina". Neither of these are a majority mandate "from the people". Amending a state constitution is a serious event and it should be held to a higher standard.

  • 49. RobW303  |  November 18, 2014 at 3:43 pm

    If people decline to vote, they cede their will to those who do. The will of the people can only be gauged by the voters, even if those who vote are non-representative. Therefore I have no problem with politicians using "will of the people" and "will of the voters" interchangeably. The non-voters are as responsible for the passage of these laws as the voters—not to decide is to decide.

    Also, in Mississippi, opponents of marriage equality DO constitute the majority, as polls continue to show.

    Majority will still doesn't trump equal protection and due process. It CAN demonstrate animus. So let them scream about "will of the majority".

  • 50. RobW303  |  November 18, 2014 at 3:43 pm

    If people decline to vote, they cede their will to those who do. The will of the people can only be gauged by the voters, even if those who vote are non-representative. Therefore I have no problem with politicians using "will of the majority" and "will of the voters" interchangeably. The non-voters are as responsible for the passage of these laws as the voters—not to decide is to decide.

    Also, in Mississippi, opponents of marriage equality DO constitute the majority, as polls continue to show.

    Majority will still doesn't trump equal protection and due process. It CAN demonstrate animus. So let them scream about "will of the majority".

  • 51. Eric  |  November 18, 2014 at 3:48 pm

    But, they aren't saying the "will of the majority," nor are they saying the "will of the voters." They are saying the "will of the People." There is a difference. The will of the People is clearly enumerated in the US and state constitutions. The will of the People is to not deny some people equal protection under the law and due process.

  • 52. RobW303  |  November 18, 2014 at 3:51 pm

    What galls me is referring to votes of the past as if they reflect the current will of the people. Also, the contention that the people can change the laws, when the haters passed constitutional amendments when sentiment was in their favor precisely to override majority rule in the future (knowing it was coming). I'm glad this point was brought out in the Mississippi hearing, as a demonstration of animus.

  • 53. Raga  |  November 18, 2014 at 10:29 am

    Anxiously awaiting a decision from the Fourth Circuit denying stay pending appeal to South Carolina and the inevitable Supreme Court showdown that will ensue 🙂

    Also awaiting this week:
    (2) Decision from Kansas Supreme Court lifting the temporary stay on Johnson County.
    (3) Decision from Mississippi Federal Court striking down the ban without a stay.
    (4) Decision from Montana Federal Court striking down the ban without a stay.
    (4) Dual hearings in Little Rock, AR on Thursday.

  • 54. DACiowan  |  November 18, 2014 at 10:34 am

    This time, even though I expect the same result of the Court denying a stay I could see ThomaScalia penning a dissent, which will drag the process out more.

  • 55. StraightDave  |  November 18, 2014 at 11:00 am

    The clock still runs out at noon Thurs. I really cannot imagine a further extension just for the purpose of writing a dissent that carries no weight. And how the hell long could that take, anyway?
    All they need to say is:

    This is BS.
    Love, Nino & Clarabel

  • 56. Raga  |  November 18, 2014 at 10:37 am

    And I have a feeling Mississippi might be a Friday afternoon decision – strategically, that would make sense, knowing full well that the Fifth Circuit will swoop in and grant an emergency stay, which could be slightly delayed (even if only by a few hours) if it was a weekend.

  • 57. jdw_karasu  |  November 18, 2014 at 11:48 am

    Raga:

    What did you think of Judge Reeves after reading the transcript? I think we all believed he would rule on our side, but how do you think he handled the hearing?

  • 58. Raga  |  November 18, 2014 at 12:15 pm

    Haven't read the whole thing yet – it's humongous! Will do later.

  • 59. nicolas1446  |  November 18, 2014 at 12:01 pm

    Do you think the 4th circuit will deny the stay?

  • 60. Raga  |  November 18, 2014 at 12:07 pm

    Strictly speaking, we could get a bad motions panel, but they would still have no legitimate reason to grant the stay. Not after the Supreme Court denied Kansas.

  • 61. guitaristbl  |  November 18, 2014 at 5:40 pm

    (1) and (2) done..(5) (the 2nd (4) on your list that is) is on a set date and (3) and (4) should be coming soon. But we should also add a possible decision in the case in South Dakota some time soon, when the appropriate briefs are filed. The denial to dismiss and the wording it used shows a strong possibility that a ruling in favour of ME is very likely.

  • 62. Steve27516  |  November 18, 2014 at 10:32 am

    Yes, Raga, same here.
    Tick tock, Fourth Circuit, tick tock.

    Update:
    While I suppose that courtesy would call for a timely reply to the request for a stay, would I surmise correctly that the Fourth Circuit is not under any legal requirement to answer the request by any given point in time? Perhaps the Fourth wants the existing stay to expire before they reply with their own denial of a new stay?
    Just speculating here – idly and irresponsibly. LOL
    Can others offer illumination?

  • 63. Raga  |  November 18, 2014 at 12:08 pm

    Yes, South Carolina might be on their toes claiming that this is an "emergency", but the Fourth Circuit is under no obligation to agree.

  • 64. Steve27516  |  November 18, 2014 at 12:15 pm

    Thanks, Raga –
    You know, in a few weeks, we'll be looking back at 2014 and reflecting on the amazing events that have transpired over the last 12 months.
    As I ponder the highs and lows of the year, one the super highlights in my own experiences of 2014 will be meeting the community of people here on Equality on Trial.
    And Raga, you're one of my favorites. Thank you for all you've shared here. I've learned so much from you.
    Thank you!
    Steve in Chapel Hill

  • 65. Raga  |  November 18, 2014 at 12:20 pm

    You're most welcome Steve! I cannot take all the credit, however. I have been on this forum for less than a year, and I pass-through your gratitude with approval to everyone else here that I've learned so so much from!

  • 66. Steve27516  |  November 18, 2014 at 12:22 pm

    A toast to the EoT family!
    To Scottie and Jacob and their team, and to the many sharp minds who post here.
    Thank you, everyone!

  • 67. Angry Flame Fox  |  November 18, 2014 at 11:03 am

    I keep having to remind myself of the rapid progress we have made in such a short time, but I will breathe a sigh of relief (and regain a new sense of suspense at the same time), when SCOTUS grants the petition for cert for Michigan (fingers crossed!).

    Until then, HURRY THE F UP, SCOTUS!

  • 68. sfbob  |  November 18, 2014 at 11:46 am

    Not quite sure what it means but I'm reading (off of my phone, from a friend's Facebook post) that DeBoer vs Schneider "has been docketed as 14-571." This may simply mean they've registered the plaintffs' petition, in fact the more I think about it the more likely that seems. Still, it's something.

  • 69. DACiowan  |  November 18, 2014 at 12:00 pm

    Yeah, it means the petition has been listed by SCOTUS. Here is the Supreme Court page on the case: http://www.supremecourt.gov/search.aspx?filename=

  • 70. Raga  |  November 18, 2014 at 12:11 pm

    And the Kentucky petition, Love, has been docketed as 14-574. http://www.scotusblog.com/2014/11/same-sex-marria

  • 71. DaveM_OH  |  November 18, 2014 at 1:34 pm

    So, uh, everyone's clearing their schedules for April 20-22 and 27-29, right?

    Side note: there are 46 slots remaining for Oral Arguments between now and the end of the Term. There are 28 Grants that have not yet been slotted for argument.

  • 72. brooklyn11217  |  November 18, 2014 at 1:54 pm

    Good luck getting in to see these arguments. People will be camped outside and paying line-standers for weeks, I bet. Hmm, cameras in the court room, that would be a nice concept, right? Most of us will have to settle for the audio, which at least they now release soon after the argument.

  • 73. alatarus  |  November 18, 2014 at 11:53 am

    Couldn't SCOTUS simply remand the decision back to the Sixth, since their "decision" hinged on Baker and didn't adequately take into account state recognition of legal marriages?

  • 74. Raga  |  November 18, 2014 at 12:15 pm

    Even though they said Baker was binding, they did get into the merits, and ruled that rational basis review applied, and that the "responsible procreation" and "wait-and-see" rationales satisfied that standard. They also held that marriage is a fundamental right, but doesn't extend to same-sex couples. Thus, the Sixth has ruled on all the points, and I don't think there is a reason to believe they'll decide differently on the merits on remand.

  • 75. nicolas1446  |  November 18, 2014 at 1:59 pm

    I read an article on the Washington Post criticizing the 6th circuit's way of applying rational basis review. The panel looked at the rational reasons for having heterosexual marriage, and therefore passed the rational basis test. However, they should have been looking at the rational basis for excluding gays from marriage just like SCOTUS looked at the rational basis for excluding same sex partners from the right to privacy in Lawrence v. Texas and looked at the basis for excluding gay marriage from federal recognition in Windsor. Another article also criticized how the panel was wrong in saying gays do not satisfy heightened scrutiny because apparently Judge Sutton thinks gays are not a political minority as proven by the victories they have won. With that flawed logic then I guess that african americans were also not a political minority then since they accomplished passing the Civil Rights Act. The author also criticized that Judge Sutton did not even mention the sex discrimination claim. And even worse the opinion entertains the slippery slope argument when bans on polygamy would not succeed in the courts because they do not violate equal protection nor would it be a form of sex discrimination and the constitution does not protect polygamous relationships while it does same sex relationships. Not to mention that the state would surely be able to list legitimate reasons for the ban. And even worse, how the panel actually think Baker is still binding reeks of desperation. Homosexuality was still considered a mental illness in 1972 and was criminal in 49 states!! I also hate how they assert that same sex marriage is a new right. It is not a new right. It is gays and lesbians being afforded the same rights as heterosexuals. Judge Sutton treats same sex marriage as something a heterosexual would choose to do just for the sake of it. He fails to recognize gays and lesbians as classes of people like men and women. He treats homosexuality as a behavior and not a trait. I don't even think he believes homosexuality exists. The 6th circuit opinion is laughable and so full of holes that I feel for bad for Judge Sutton if he actually thinks he wrote something persuasive and legally sound. I hope SCOTUS thoroughly counters the logic of the 6th circuit.

  • 76. nicolas1446  |  November 18, 2014 at 1:59 pm

    I read an article on the Washington Post criticizing the 6th circuit's way of applying rational basis review. The panel looked at the rational reasons for having heterosexual marriage, and therefore passed the rational basis test. However, they should have been looking at the rational basis for excluding gays from marriage just like SCOTUS looked at the rational basis for excluding same sex partners from the right to privacy in Lawrence v. Texas and looked at the basis for excluding gay marriage from federal recognition in Windsor. Another article also criticized how the panel was wrong in saying gays do not satisfy heightened scrutiny because apparently Judge Sutton thinks gays are not a political minority as proven by the victories they have won. With that flawed logic then I guess that african americans were also not a political minority then since they accomplished passing the Civil Rights Act. The author also criticized that Judge Sutton did not even mention the sex discrimination claim. And even worse the opinion entertains the slippery slope argument when bans on polygamy would not succeed in the courts because they do not violate equal protection nor would it be a form of sex discrimination and the constitution does not protect polygamous relationships while it does same sex relationships. Not to mention that the state would surely be able to list legitimate reasons for the ban. And even worse, how the panel actually thinks Baker is still binding reeks of desperation. Homosexuality was still considered a mental illness in 1972 and was criminal in 49 states!! I also hate how they assert that same sex marriage is a new right. It is not a new right. It is gays and lesbians being afforded the same rights as heterosexuals. Judge Sutton treats same sex marriage as something a heterosexual would choose to do just for the sake of it. He fails to recognize gays and lesbians as classes of people like men and women. He treats homosexuality as a behavior and not a trait. I don't even think he believes homosexuality exists. The 6th circuit opinion is laughable and so full of holes that I feel for bad for Judge Sutton if he actually thinks he wrote something persuasive and legally sound. I hope SCOTUS thoroughly counters the logic of the 6th circuit.

  • 77. montezuma58  |  November 18, 2014 at 2:06 pm

    Here's the Washington Post piece: http://www.washingtonpost.com/news/volokh-conspir

  • 78. davepCA  |  November 18, 2014 at 12:18 pm

    Yes, they could. And the result of that would likely just be an extra delay. The Sixth would still most likely rule against us if it is remanded back tot them, just deleting the mention of Baker and relying on the idiotic and irrational 'responsible procreation' and 'let the people decide' rhetoric. Our side would then have to appeal that bad decision to SCOTUS yet again, putting us right back where we are now, but delayed by maybe a year. It would be better for us if SCOTUS does not remand back to the Sixth and instead decides to grant cert.

  • 79. Raga  |  November 18, 2014 at 11:29 am

    Bondi has filed her opening brief in the Florida Third District Court of Appeal. The extended deadline was last night, which she met "with hours to spare," according to attorney Bernadette Restivo, who co-represents Huntsman and Jones. The filing is quite similar to arguments raised Friday when Bondi filed her opening brief before the Eleventh Circuit Court of Appeals. "I would describe it as a regurgitation," Restivo said Monday night.

    Anyone have a link to this filing?

    http://www.miamiherald.com/news/local/community/g

  • 80. Raga  |  November 18, 2014 at 1:08 pm

    BREAKING (okay, not really): Order and Opinion denying Don "MUSICIAN AND PSALMIST, Anointed and Assigned as a Watchman for the souls of that people errantly identifying and calling themselves lesbian and gay" Boyd's motion to intervene in Bradacs, the South Carolina federal case seeking recognition of out-of-state marriages. http://www.scribd.com/doc/247022173/3-13-cv-02351

    (Thanks to Equality Case Files!)

    "Boyd’s motion fails to sufficiently state grounds for […] intervention. […] Boyd fails to show that he made a timely application. While Boyd claims that he only learned of this lawsuit in October 2014, the court finds that allegation hard to believe since this lawsuit has been pending since August 2013 and has been well advertised through various media outlets. Even assuming that Boyd has an interest in the subject matter of the underlying action, the court finds that he has failed to show that a denial of the motion would impair his ability to protect his interest–that is, to continue to assert his constitutional rights and discontent for same-sex marriage. Additionally, Boyd only makes vague, conclusory statements that allowing the ratification of same-sex marriages would deprive him of a personal life and other liberties guaranteed by the Fourteenth Amendment. Finally, Boyd cannot show that his interests are not adequately protected by Defendant’s vigorous opposition to Plaintiffs’ challenge to the state ban on same-sex marriages. As Boyd has failed to meet each of the elements of intervention as of right, this court must deny his right to intervene in this regard."

    In case anyone missed the original motion, here it is: http://www.scribd.com/doc/245406042/3-13-cv-02351

  • 81. Angry Flame Fox  |  November 18, 2014 at 1:20 pm

    Oh, that guy.

    Yeah, can't say I gave it a second thought. Lol.

  • 82. Randolph_Finder  |  November 18, 2014 at 1:20 pm

    Wow, that makes Westboro Baptist's application look coherent.

  • 83. BenG1980  |  November 18, 2014 at 1:23 pm

    Unfortunately the same can't be said for Judge J. Michelle Childs. She has now written a 4-page order denying intervention by a crazy person, but she hasn't found the time to rule on the merits of the plaintiffs' case!

  • 84. Raga  |  November 18, 2014 at 1:25 pm

    I think Thomas and Scalia might have granted this motion.

  • 85. SteveThomas1  |  November 18, 2014 at 1:21 pm

    I expect the judge had a little bit of fun drafting this opinion. It's certainly amusing to read. (But the motion it's responding to was really quite daft.)

  • 86. RobW303  |  November 18, 2014 at 4:07 pm

    The judge must've found it hard not to reply with a two-word ruling: "As if."

  • 87. davepCA  |  November 19, 2014 at 10:26 am

    Aw dang it. That one was hilarious. I wish he had been allowed to intervene. When they make the ten-part miniseries about all of this, it would have provided some much-needed comic relief.

  • 88. DACiowan  |  November 18, 2014 at 1:40 pm

    Arizona is appealing its marriage order now, but they claim it's to sort out legal fees. Huh?
    Equality Case Files post with links

  • 89. brandall  |  November 18, 2014 at 1:41 pm

    @ chrisJohnson reporting 4th has DENIED SC stay request. Marriages should begin on Thursday…..Let's hope SC leaves it at this and stops the delays.

  • 90. DACiowan  |  November 18, 2014 at 1:41 pm

    Also the Fourth Circuit officially told South Carolina no stay: http://pdfserver.amlaw.com/nlj/ca4_ssm_sc_2014111

  • 91. Raga  |  November 18, 2014 at 1:55 pm

    Nice! I note that the motions panel consisted of Judges Traxler, Motz, Thacker. Two Clinton appointees and an Obama appointee. Now, onwards to the Supreme Court! Chief Justice Roberts oversees the Fourth Circuit.

  • 92. Zack12  |  November 18, 2014 at 2:07 pm

    Traxler is a Republican but the rest of your point stands.
    They told Wilson to go take a hike and that is all that matters.

  • 93. Angry Flame Fox  |  November 18, 2014 at 4:13 pm

    YES!

  • 94. andrewofca  |  November 18, 2014 at 1:56 pm

    Go Fourth!

    "Entered at the direction of the panel: Judge Traxler, Judge Motz, and Judge Thacker." In case you're curious, as I was… they were appointed by Clinton/Reagan/Obama respectively.

  • 95. Raga  |  November 18, 2014 at 2:02 pm

    Wikipedia shows Motz as appointed by Clinton. Her husband has been appointed to a district court by Reagan.

  • 96. Zack12  |  November 18, 2014 at 2:08 pm

    Traxler was originally put a district court by George Sr before being put on the 4th by Clinton.

  • 97. andrewofca  |  November 18, 2014 at 4:31 pm

    Ahh thanks for clarification. Looks like I got my motzes mixed up.

  • 98. Zack12  |  November 18, 2014 at 2:09 pm

    On a different note, was reading through my history on here to find something and I have to say, I wish I had been proven wrong about the 6th.
    But the minute I saw the panel we were getting, I knew we were going to get our split.
    Sutton thinks it's okay for states to discriminate agains the disabled, the elderly, blacks, latinos and that if these groups want to fight unjust laws, they need to win the hearts and minds of the bigots who passed it in the first place.
    The idea he was going to change his tune for us was a pipe dream.
    As for Cook, she is too old now but at one point, both Bush Jr and McCain (if he had won) were considering her for SCOTUS.
    That alone tells you what a right wing hack she is.
    These two will rightfully go down in history as the bigots they are.

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