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Capitol Hill
Capitol Hill
BREAKING UPDATE: The South Carolina Supreme Court has lifted the previous order that placed the issuance of marriage licenses on hold pending the outcome of the federal case. Now that the federal case has been decided, the state supreme court is allowing marriages to go on.

– In case you missed it, South Carolina’s attorney general is asking the Supreme Court for a stay in the marriage case. The request went to Chief Justice John Roberts in his capacity as Circuit Justice for the Fourth Circuit Court of Appeals. He has the option of ruling on the request himself or referring it to the full Court.

– Florida wants the Eleventh Circuit to extend the stay in the marriage case on appeal there.

– At the Volokh Conspiracy, law professor Dale Carpenter has a series of posts (here and here) analyzing and criticizing the Sixth Circuit’s decision upholding same-sex marriage bans in four states.

– The Employment Non Discrimination Act (ENDA) is unlikely to pass during the lame duck session of Congress.

– Another report from Mississippi is suggesting that it looks like same-sex couples will win the marriage case.

Thanks to Equality Case Files for these filings


  • 1. Jaesun100  |  November 19, 2014 at 8:04 am

    I have given up on ENDA it will be a while before that ever passes if it ever does …

  • 2. SeattleRobin  |  November 19, 2014 at 7:11 pm

    Isn't it not passing in its current form a good thing anyway? I thought it still contained overly broad religious exceptions. I'd rather wait and get the right law passed than to be stuck with one guaranteed to create messes.

  • 3. seannynj  |  November 19, 2014 at 9:22 pm

    Yeah, but those restrictions could be wiped after the bill passes in the House. There would a conference to reconcile the House and Senate versions of the bill and it could happen there.

  • 4. BillinNO  |  November 20, 2014 at 8:02 am

    For ENDA we need a Democratic Congress- both houses. And we have to keep the White House.

  • 5. guitaristbl  |  November 19, 2014 at 8:13 am

    And I was wondering if Bondi ha forgotten about the January 5 deadline when the stay was expiring 😛
    The 11th will grant the stay I assume but all these most probably do not matter at this point if SCOTUS grants cert.
    The only thing that matters now is to get as many states possible on the wagon before SCOTUS decides the issue. South Carolina is coming soon, issues should be dealt with in Kansas for all counties to issue licenses and the decision in Montana should be imminent and we shall see how SCOTUS will handle that one if in the meantime Idaho has applied for cert. So that's 35 and with the hope of getting Arkansas through state court as well, we are at 36 plus DC plus the whole mess in Missouri which is essentially ME pretending not to be. Pro equality decisions in Mississipi and South Dakota in federal court, even if they are stayed, should also help the equality cause. I hope the SD case has time to be decided before SCOTUS grants cert. That would leave only North Dakota, Nebraska, Alabama and Georgia without progress in litigition.
    With essentially 37 states on board and only 4 states without at least one pro equality decision on district or state level, I think SCOTUS will have a very hard time upholding the bans on any basis.

  • 6. scream4ever  |  November 19, 2014 at 10:48 am

    Don't be so sure about the stay being granted by the 11th. Even if they do our side should still petition the Supreme Court to have it lifted. Also we are likely to get Florida soon enough via their state supreme court.

  • 7. guitaristbl  |  November 19, 2014 at 11:40 am

    Soon enough ? You are very optimistic since no case in state court has yet even received a hearing in the state courts of appeals, let alone the state SC. The courts of appeals denied Bondi's request to get out of the way and let the Florida SC get to the issue an hour earlier.
    It will be a looong time till the state courts in Florida get there and we don't even know they will issue the right decision.

  • 8. RQO  |  November 19, 2014 at 6:40 pm

    Missouri: "ME pretending not to be". This line is priceless. And you are right: if SCOTUS upholds the 6th CA, all bloody hell breaks loose, and John Roberts goes down as the Chief Justice who lost any and all control of a rogue court. Legally, it's possible. Politically, it's unthinkable (I think, but let's get Zack's opinion).

  • 9. Brad_1  |  November 19, 2014 at 8:33 am

    Thanks for that Mississippi article link, Scottie. The newspaper reporter, Emily Le Coz, has been doing a great job in following this story in recent weeks.

    Here's Scottie's link fyi:

  • 10. RemC_Chicago  |  November 19, 2014 at 8:53 am

    I've been reading the transcript of the 5-hour trial. The state's attorney seems to be engaged in plenty of verbal argle-bargle. I mean, he talks, but nothing he says seems to make much sense. Or is he talking at a level beyond my comprehension? Anyone else reading it?

  • 11. Raga  |  November 19, 2014 at 9:30 am

    I'm almost halfway through and I agree. Wow. He begins the "numbers game" as he calls it by saying that two or three circuits agree with him on Baker, and when the judge says that post-Windsor the majority has swung the other way, he says that the judge shouldn't play a numbers game. WTF? I'm surprised the judge has, as far as I've read into the transcript, kept his cool with him. I didn't appreciate his (the Mississippi attorney's) lengthy history lesson about how before 1988 the Supreme Court had to take up these cases, and the law changed, and he tragically had to grapple with that enormously confusing change. And I'm sick and tired of him going on and on about "the orderly process of courts". Every argument of his comes back to this. One more time and I'd want to strangle him.

    And second only to Lucero's lines during the Tenth Circuit oral argument in the Bishop case, I love the judge's simple (non-doctrinal-development) argument against Baker:

    "When a lower court tells a higher court that your earlier decision has no resonance today, no application to this case, and that case — and that court takes that decision up and rules on that decision, isn't there an obligation to that court to at least put in a footnote or something to say, as an aside, It does have resonance, but we're saying that this is the — I mean, that's what I'm still grappling with, because the Second Circuit told the world that Baker had no resonance in the Windsor case. Windsor went up to the Supreme Court and not one judge, not one judge on the Supreme Court, said, Aha, but Baker does have resonance, and I concur, I dissent, I disagree, I whatever. Doesn't that speak volumes as well? I mean, silence sometimes is golden."

  • 12. SeattleRobin  |  November 19, 2014 at 7:16 pm

    I had to laugh at you wanting to strangle him over the orderly thing. As a person who is a little obsessive about doing things in a linear, orderly manner, it was the only part of his argument I liked. 🙂

  • 13. Raga  |  November 19, 2014 at 9:51 am

    More quotable quotes from the Mississippi oral argument:

    "What about Windsor's citation and wrapping its arms around Loving in Windsor?"

    "[Y]ou could look at all the briefing that was done in the courts below as well as the arguments of those courts as well as the petitions for cert and what not that were filed at the Supreme Court. Could the court look at that and — you know, because if Baker v. Nelson controlled, when all of those cases came up to the Supreme Court, couldn't the court have just simply slammed the door on them and said, See Baker v. Nelson. All of y'all are wrong. Case closed. It's over. We said it in 1971 or '72 that it's over and done with, period? Couldn't they have done that? […] I mean, the Supreme Court, for example, has done per curiam summary reversals of the Fifth Circuit recently, yesterday — Monday — Monday on a case saying, You all got it wrong. You've been looking at the notice pleading doctrine wrong. So they took up the case, PC [per curiam] reversed. Tolan v. Cotton, misapplication of how you deal with qualified immunity. They took it up and they PC reversed, said, You got it wrong."

  • 14. StraightDave  |  November 19, 2014 at 10:45 am

    Of course it would be the Fifth Circuit to totally botch a ruling and get smacked upside the head – again. Fortunately, I don't think they'll get a chance to screw up the ME progress.SCOTUS will likely grant cert in Jan before the 5th has a chance to rule. If they're wise, they'll just hold their ruling until the 6th is dealt with in June.

    Oh, wait… "wise'? What was I thinking?

  • 15. Raga  |  November 19, 2014 at 11:17 am

    It speaks volumes about the Mississippi attorney's competence when he makes statements like this:

    "And counsel had mentioned something, and I'm glad she did because it reminded me of something that I had read somewhere."

    And more of his incessant rambling:

    "[…] example with the hunting, I didn't vote for it. I shouldn't say it. I didn't vote for it. But you know why I didn't? I didn't vote for it because I don't like how — I don't like how the — the way that it was worded on the ballot. I couldn't understand it when I'm looking at it there on the poll. And so I voted against it, even though I have nothing against hunting and have been hunting before. But I'm certainly entitled to have that opinion about it. And I can have that opinion even though I think that — you know, the basic opinion that it should — we didn't have to constitutionalize it, as I saw it. But back in –"

    So glad the judge cut him off there. And it had to happen again at the end of this mumble:

    "Well, the main point, your Honor, is when it comes to rational basis review, though, it doesn't matter, because the question is — and it's not what motivated it at the time or anything of that sort. It's can the court conceive of any rational basis that a — that a — a rationale related to legitimate state interest. And I don't how to best formulate it. I have to be honest. I didn't come up with it. Like I said –"

  • 16. RnL2008  |  November 19, 2014 at 12:08 pm

    OMFG……..this person needs to go to his law school and ask for a refund……..that's pathetic and is probably why he lost or will lose in this case!!!

  • 17. ebohlman  |  November 20, 2014 at 1:01 am

    We're dealing with someone who has nothing to say, but whose livelihood depends on saying it.

  • 18. Raga  |  November 19, 2014 at 11:36 am

    And here's this exchange regarding the so-called wait-and-see rationale:

    THE COURT: "I'll pose the wait-and-see question to you about the all deliberate speed. So if we do that — it was 1954 that Brown was enacted and in Mississippi it was 1970 before my first-grade class was integrated. And it was a first-grade class in my hometown because of the speed at which the State of Mississippi wanted to travel in making sure that Brown was effected. So why — doesn't the court have some responsibility to maybe not wait and see and to — to not wait and see? Because we may be here in 2031. We may be here in 2131. No, no. I mean, the — I think it was Judge Posner and some others who said things have happened in light years everywhere else around the country in all this litigation, but what guarantee is there that the political process would work its way through in what I might consider or what the courts might consider to be a timely fashion?"

    And before he tries to answer this question, the Mississippi attorney goes:

    MATHENY: "There's two things about it. Don't let me forget to get to the second part."

    So, the judge is his personal assistant now? Anyway, after rambling about his first point, he forgets about his second point altogether:

    MATHENY: "My second point, your Honor — I didn't want to forget that — let me see where I had it."
    THE COURT: "No problem."
    MR. MATHENY: "The good questions got me so far off of thinking about that. When I find it, I will point it out."
    THE COURT: "No problem."
    MR. MATHENY: "And I just found it."
    THE COURT: "Okay"

    I wonder if I could have kept a straight face through this exchange!

  • 19. davepCA  |  November 19, 2014 at 12:05 pm

    Good grief. Thank you for posting these excerpts, because there is no way I would be able to read through a long oral argument full of that level of incoherence and disjointed babbling. How on earth are you doing it?

  • 20. Raga  |  November 19, 2014 at 12:15 pm

    Yeah, I'm pretty close to gouging my eyes out. I'm taking a break before the second half. Sheesh.

  • 21. SeattleRobin  |  November 19, 2014 at 7:26 pm

    I had to read it in three different reading sessions.

    The state's attorney is like that from the very beginning. Since it's just text on paper with no visual cues, I couldn't tell if he was just trying to be folksy, or if he was really as in over his head as he seemed to be. He kept undermining his position by saying how much research he had to do and how it was all new to him and so on.

    He sounded like someone who had just passed the bar and been handed his first big case. If he's the best the state's got they're in trouble, and I don't just mean for this case.

  • 22. ebohlman  |  November 20, 2014 at 1:10 am

    That last exchange reminds me of Rick Perry's performance in the Republican primary debate where he completely blanked out on the third (or was it fourth) of the Very Important points he wanted to make.

    Scuttlebut is that Matheny is considered an experienced and capable litigator, so if this is the best he can do it means he has literally nothing to work with.

  • 23. RQO  |  November 19, 2014 at 6:49 pm

    Holy cow, is the state's attorney by any chance Mr. Magoo, or Cheech and Chong? Rose shall surely bestow a STUPID grand prize award.

  • 24. RnL2008  |  November 19, 2014 at 7:35 pm

    That's what I got from some of the quotes that had been posted…….ugh!!!

  • 25. brandall  |  November 19, 2014 at 8:42 am

    The snails pace Florida state cases just moved another inch yesterday. In the 2nd district, Plaintiffs filed the Reply Brief to Bondi's 10/13/14 Answer Brief (divorce case with missing spouse). This case was denied a "pass through" by the Florida Supreme Court on 9/8/14.

    In the 3rd District, Bondi filed their Initial Brief on Merits following an extension of time granted by the court on 9/25/14. This case, Florida v Pareto was seeking a "pass through" that for all intent purposes will be denied by the court.

    No dates for oral arguments have been established. Despite Bondi's public statements about quickly resolving the question of ME through the state courts, at this pace, we should see rulings sometime in 2020.

  • 26. Ryan K (a.k.a. KELL)  |  November 19, 2014 at 6:31 pm

    I wonder how much influence the executive branch has on the judicial in my resident state of Florida. UGH, still so mad about that election!

  • 27. Zack12  |  November 19, 2014 at 9:37 am

    Our best chance to pass ENDA would have been when Democrats controlled the house.
    The fact it couldn't speaks volumes about where our rights stand with many and it's why I didn't shed tears when Blue Dogs got the boot.
    They were just as bigoted as the Republicans who replaced them and were NEVER going to vote in our favor.

  • 28. Eric  |  November 19, 2014 at 11:01 am

    It is also a poignant reminder of why the cause for equality should not assume support from any political party.

  • 29. Zack12  |  November 19, 2014 at 11:02 am

    I agree, the Democrats history on gay rights pre 2012 is nothing for many of them to brag about.

  • 30. Mike_Baltimore  |  November 19, 2014 at 11:02 am

    To be fair, when the Democrats controlled the House (Jan. '09 – Jan. '11), Gallup found the majority of Americans were against ME.

    But I also shed no tears when Blue Dogs got the boot, except for the fact that when they did, all Democrats in the House suffered when the GOTP took control. And the GOTP would not have been able to take control if enough people had gotten out to vote in the '10 General Elections. All the more reason for EVERYONE to vote in ALL elections – local, state, Federal, primary, general, special, etc.

  • 31. Zack12  |  November 19, 2014 at 11:48 am

    Some of those Blue Dogs like Richard Shelby and Ben Campbell switched parties.
    I do understand what you are saying though, espescially on the Senate level.

  • 32. RQO  |  November 19, 2014 at 6:51 pm

    To be even more fair, politicians following the polls rather than brains and morals deserve to lose office at some point.

  • 33. ebohlman  |  November 20, 2014 at 1:15 am

    However, even back then an overwhelming supermajority of the population thought that people shouldn't be fired for being gay. In fact most of them thought it was already illegal (and GLBT people fared only slightly better on that question).

  • 34. Mike_Baltimore  |  November 19, 2014 at 10:32 am

    (Somewhat) off topic:

    Here is the take by the 'Advocate' on Pam Bondi:

    (… )

  • 35. brandall  |  November 19, 2014 at 12:21 pm

    "So far, Bondi has managed to prevent licenses from being issued, but her other victories are few."

    What victories? She has lost every Florida case. Is the Advocate reporter counting the denial of a pass through in Shaw v Shaw as a win? Someone else jump in here if I'm wrong.

  • 36. scream4ever  |  November 19, 2014 at 1:04 pm

    I believe she also supported bypassing directly to the state supreme court.

  • 37. Zack12  |  November 19, 2014 at 1:23 pm

    Indeed, it was the only thing I won't rip her on.
    The State Supreme Court is the one that said no, not the other way around.

  • 38. scream4ever  |  November 19, 2014 at 1:53 pm

    It's possible the Florida Supreme Court could change their minds with the other district request to bypass directly to them. We just have to wait and see…

  • 39. brandall  |  November 19, 2014 at 2:09 pm

    The Third District court has essentially signaled they will not pass though the case. Bondi's motion for pass though was "noted" by the court several weeks ago. Equality Florida said it basically means they are going to say no and are therefore asking for the full bevy of briefings to be filed by all parties.

  • 40. dorothyrothchild  |  November 19, 2014 at 1:35 pm

    Thanks for posting, there were some great links in there. I had no idea – she's engaged for the 3rd time to some dude that looks old enough to be her dad, flew her whole wedding party to the Cayman Islands and then cancelled the wedding the day of due to issues with the pre-nup. The hypocrisy here that she's been appointed to "defend marriage" is mind blowing.

  • 41. brandall  |  November 19, 2014 at 12:29 pm

    Alaska's ME ban legal bill could top $361,000 in a state facing a $3 billion deficit….And the case is still on appeal.

  • 42. EricKoszyk  |  November 19, 2014 at 1:33 pm

    Not sure if this has been posted already. First same sex marriage licenses issued in South Carolina.

  • 43. Steve27516  |  November 19, 2014 at 1:35 pm

    Hmm. I'm surprised we haven't heard anything yet about Roberts granting a temporary stay for South Carolina while he refers the stay request to the other Justices. The existing stay elapses in fewer than 20 hours. Has he already arranged with the other Justices for a unified decision to be announced before noon Eastern tomorrow?

  • 44. Jaesun100  |  November 19, 2014 at 1:41 pm

    Maby they will just all vote and Deny it sometime before noon tomm…..

  • 45. Raga  |  November 19, 2014 at 2:42 pm

    I'm more surprised that he hasn't even requested a response from the Plaintiffs. That could only mean that he is pretty sure the full court will deny anyway. And this is not the closest it has come to. In Idaho's case, Kennedy issued a (temporary) stay just a few minutes before marriages were set to resume, so anything can happen before noon tomorrow.

  • 46. brooklyn11217  |  November 19, 2014 at 4:24 pm

    Have plaintiff' responded? I know there has been no request for them to do so, but I thought that in the past, parties had put in a response regarding a stay without a specific request (but maybe I am mistaken, and that wasn't at SCOTUS).

  • 47. Raga  |  November 19, 2014 at 7:45 pm

    Not yet – the docket doesn't show anything. Perhaps they will tomorrow morning.

  • 48. StraightDave  |  November 19, 2014 at 3:00 pm

    I don't know why they don't just set up an auto-reply in their inbox for this stuff.

    "If you are contacting us to whine about having to follow well-established law, your request will automatically be routed to our spam folder. You will also be sent a bill for excessive and unreasonable misuse of our IT infrastructure. Have a nice day."

  • 49. Steve27516  |  November 19, 2014 at 3:58 pm

    Buh bye.

  • 50. guitaristbl  |  November 19, 2014 at 4:29 pm

    We may laugh about it but as I was reading the orders from their most recent conference, I noticed a petition where they denied cert but also barred the person who filed it from filing any other appeals in non criminal cases because they abused the somehow the court's rules or something. So yeah if someone keeps bugging them in an annoying an unfounded way they can punish them.

  • 51. guitaristbl  |  November 19, 2014 at 1:38 pm

    Montana ban struck down ! :

    And the ruling itself :

  • 52. Jaesun100  |  November 19, 2014 at 1:42 pm

    A stay ?

  • 53. guitaristbl  |  November 19, 2014 at 1:45 pm

    Nope, the injunction takes effect immediately according to the ruling. They will have to go to the 9th.

  • 54. Jaesun100  |  November 19, 2014 at 2:03 pm


  • 55. MichaelGrabow  |  November 19, 2014 at 2:28 pm

    This is the 54th court ruling since June 2013 in favor of the freedom to marry. Just four courts – most notably, the U.S. Court of Appeals for the 6th Circuit – have upheld marriage discrimination.

    Sixth Circuit
    What is the fourth?

  • 56. guitaristbl  |  November 19, 2014 at 2:33 pm

    Puerto Rico

  • 57. MichaelGrabow  |  November 19, 2014 at 2:36 pm

    Oh yeah! Thanks

  • 58. SteveThomas1  |  November 19, 2014 at 2:35 pm

    Puerto Rico

  • 59. Steve27516  |  November 19, 2014 at 1:42 pm

    Gold and silver!
    Thank you for the post, guitaristbl !

  • 60. Zack12  |  November 19, 2014 at 2:10 pm

    Welcome to equality Montana!

  • 61. guitaristbl  |  November 20, 2014 at 3:56 am

    5 hours to go for the stay to be lifted in South Carolina. Probably way too early in the east coast to have any kind of action yet, but the clock is ticking…Against Wilson..!

  • 62. DACiowan  |  November 20, 2014 at 4:32 am

    I am hoping the Supreme Court actually writes an explanation specifically stating settled circuits are not going to be undone and South Carolina needs to comply already. Be nice if they wag a finger at the Kansas mess too.

  • 63. guitaristbl  |  November 20, 2014 at 5:03 am

    Kansas does not need just a finger obviously but a punch in the face. If the officials are indeed refusing to follow the ruling in Marie, they should suffer the consequences and be held in contempt of court immediately.
    As I said, it's unfortunate that things had to come down to that is what it is.

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