Equality On Trial

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• 1. DACiowan  |  November 25, 2014 at 6:47 pm

  The order specifically mentions "the State of Mississippi and all its agents, officers, employees, and subsidiaries." After the Kansas fiasco it's awesome to see a judge slam the door shut on the state trying to find wiggle room.

• 2. netoschultz  |  November 26, 2014 at 12:37 am

  Montana judge also did that so all the clerks had to issue marriage licenses. South Carolina judge didn't, but his language was clear that it had to apply statewide.

• 3. jpmassar  |  November 25, 2014 at 6:55 pm

  WHY IS THE WEBSITE SO INCREDIBLY SLOW OF LATE????

• 4. guitaristbl  |  November 25, 2014 at 6:55 pm

  From the ruling :

  "“The Fourteenth Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi’s traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights.
  Today’s decision may cause uneasiness and concern about the change it will bring, But ‘”(t)hings change, people change, times change, and Mississippi changes, too.’ The man who said these words, Ross R. Barnett, Jr., knew firsthand their truth.”

• 5. guitaristbl  |  November 25, 2014 at 6:55 pm

  From the ruling :

  "“The Fourteenth Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi’s traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights.
  Today’s decision may cause uneasiness and concern about the change it will bring, But ‘”(t)hings change, people change, times change, and Mississippi changes, too.’ The man who said these words, Ross R. Barnett, Jr., knew firsthand their truth.”

  "It has become clear to the court that people marry for a number of reasons: marriage is a
  profound source of emotional support; marriage is a private and public expression of
  commitment; some marry in exercise of their religious beliefs; some do so because it opens the
  door to economic and government benefits; there are those who marry to present a certain status
  or image; and others do it for the noble purpose of legitimizing their children. In reviewing the
  arguments of the parties and conducting its own research, the court determined that an objective
  person must answer affirmatively to the following questions:
  Can gay and lesbian citizens love?
  Can gay and lesbian citizens have long-lasting and committed relationships?
  Can gay and lesbian citizens love and care for children?
  Can gay and lesbian citizens provide what is best for their children?
  Can gay and lesbian citizens help make their children good and productive citizens?
  Without the right to marry, are gay and lesbian citizens subjected to humiliation and
  indignity?
  Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned
  prejudice?
  Answering “Yes” to each of these questions leads the court to the inescapable conclusion that
  same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse,
  of marriage. "

• 6. MichaelGrabow  |  November 26, 2014 at 7:33 am

  This is great.

• 7. jpmassar  |  November 25, 2014 at 6:57 pm

  "The court concludes that Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law."

• 8. Raga  |  November 25, 2014 at 7:12 pm

  Quick summary of a thorough 72-page opinion granting preliminary injunction:
  (1) Sexual orientation satisfies the factors for quasi-suspectedness, but unfortunately, circuit precedent mandates rational basis review, which the ban fails.
  (2) Unconstitutional animus is found, just like in Windsor.
  (3) The court declines to resolve the question of whether this is gender discrimination.
  (4) The bans violate the fundamental right to marry and fail strict scrutiny.

  There is a 14-day temporary stay to allow time for the Fifth Circuit or Supreme Court to decide on a longer stay.

• 9. guitaristbl  |  November 25, 2014 at 7:15 pm

  " If
  Baker lacked resonance when the Second Circuit resolved Edith Windsor’s case, it was dead in
  the water when the Supreme Court was finished with it.
  Here, the State argues that the Supreme Court has never explicitly overruled Baker. But
  that is not the standard. The Court’s instruction was to examine “doctrinal developments.” Hicks,
  422 U.S. at 344. They are legion. At oral argument, despite its valiant effort, the State could not
  persuasively explain otherwise. Nor could it explain what further doctrinal developments could
  possibly be necessary to render Baker irrelevant.
  Four decades of major changes in this area of the law are enough. Baker does not prevent
  this Court from reaching the merits of the plaintiffs’ claims. "

• 10. guitaristbl  |  November 25, 2014 at 7:15 pm

  On Baker :

  " If
  Baker lacked resonance when the Second Circuit resolved Edith Windsor’s case, it was dead in
  the water when the Supreme Court was finished with it.
  Here, the State argues that the Supreme Court has never explicitly overruled Baker. But
  that is not the standard. The Court’s instruction was to examine “doctrinal developments.” Hicks,
  422 U.S. at 344. They are legion. At oral argument, despite its valiant effort, the State could not
  persuasively explain otherwise. Nor could it explain what further doctrinal developments could
  possibly be necessary to render Baker irrelevant.
  Four decades of major changes in this area of the law are enough. Baker does not prevent
  this Court from reaching the merits of the plaintiffs’ claims. "

  And on the "democratic" process (in possibly one of the best passages in any decision I have read) :

  "Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.
  The judiciary plays a unique role in this process. The above cases were not put to a vote
  of the American people. The votes had already been counted; the legislatures had already acted.
  Most voters thought nothing wrong with the status quo, unconstitutional as it may be.
  This was always a risk of our representative democracy. James Madison wrote that
  “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Federalist No. 10. He and his colleagues “knew times can blind us to certain truths.” Lawrence, 539 U.S. at 579. Mistakes would be made.
  In their wisdom, though, they created a co-equal branch of government where aggrieved
  persons could try to show “that the laws once thought necessary and proper in fact serve only to oppress.” Id. The judiciary has been charged with hearing these claims for more than two
  centuries. The will of the majority is usually affirmed. Every now and then, however, the
  majority has done an injustice to a person’s rights, and the case must be resolved in his or her favor."
  "The judiciary enforces individual rights against the tyranny of the majority. It does not
  matter how political the issue; how reviled the individual; or how vocal, politically savvy, and
  passionate the majority. That is its duty under Article III of the United States Constitution.8
  It is with this understanding that the court considers same-sex marriage. "

• 11. MichaelGrabow  |  November 26, 2014 at 7:33 am

  Powerful stuff. I am liking this judge more and more.

• 12. Scottie Thomaston  |  November 25, 2014 at 7:17 pm

  The tech team is working on it. Yeah I know it is frustrating.

• 13. guitaristbl  |  November 25, 2014 at 7:42 pm

  Hardest Scalia trolling to date :

  "In Lawrence, the Court held that the “right to liberty under the Due Process Clause gives
  [homosexuals] the full right to engage in their conduct without intervention of the government.”
  539 U.S. at 578. In so doing, the Court recognized that the Due Process Clause “afford[s]
  constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574. The Court’s reasoning indicates that gay and lesbian persons have the same liberty interests as heterosexuals.
  In dissent, Justice Scalia declared that the Court’s reasoning opened the door for gay and
  lesbian persons to claim a constitutionally-protected right to marry. Id. at 600-05 (Scalia, J.,
  dissenting). That proved true. "

  And if that's not enough :

  "This conclusion is reinforced by Justice Scalia’s dissent in Windsor, where he again
  observed that the majority’s reasoning would open the door to strike down state bans on samesexmarriage. Id. at 2709-11 (Scalia, J., dissenting). When read in conjunction with Loving and Lawrence, the undersigned must agree."

  Having his own words used to make the case for the exact opposite cause of what he supports must be the most humiliating thing for the know-it-all Scalia..!

• 14. josejoram  |  November 26, 2014 at 6:02 am

  Did Scalia previewed this sort of outcome?

• 15. guitaristbl  |  November 26, 2014 at 6:16 am

  I think the plot twist is that Scalia is passionately in favor of ME deep down inside and he wrote those dissents to pave the way for the ultimate outcome lol !

• 16. SteveThomas1  |  November 26, 2014 at 7:16 am

  Funny as it would be were that true, Scalia is indeed passionately opposed to same-sex marriage. His statement in Lawrence was intended to be a reductio ad absurdum argument: he argued that you can't invalidate sodomy laws because the inevitable consequence would be an absurdity like letting LGBT folks marry. The rhetorical force of his argument depended on a view that no rational person could contemplate marriage between two people of the same gender (which is precisely the view to which marriage equality opponents appeal when they claim that marriage is "definitionally" heterosexual). But the failure of Scalia's reductio argument is not in his account of the logical consequence of the Lawrence decision. As the Mississippi judge noted, that account is actually correct. Scalia's argument fails when people realize that there is indeed nothing absurd — not even something really unconventional — about the marriages being discussed.

• 17. Zack12  |  November 26, 2014 at 7:20 am

  Indeed, Scalia is no ally of ours but he does see the handwriting on the wall.

• 18. guitaristbl  |  November 25, 2014 at 7:44 pm

  And, finally, some nice countering to Glucksberg :

  "Gay and lesbian persons are full citizens that share the same rights as other citizens,
  including the right to marry. This conclusion does not conflict with Glucksberg. The right to marry is rooted in history and tradition, BUT HISTORY SHOWS THAT TRADITITION DOES NOT DICTATE WHO GETS TO EXERCISE CERTAIN RIGHTS. (Any doubt could be resolved by asking Mildred and Richard Loving, Estelle Griswold, William Baird, John Lawrence and Tyron Garner, and Edith Windsor and Thea Spyer.) The State’s narrow interpretation of this right diminishes the importance it has continuously been given by the Supreme Court, contrary to applicable case law. It also serves to undermine the dignity of gay and lesbian citizens by suggesting that they are unworthy of sharing rights fundamental to every free person. See Zablocki, 434 U.S. at 384 (“the right to marry is of fundamental importance for all individuals”); Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”). "

• 19. Wolf of Raging Fires  |  November 25, 2014 at 7:46 pm

  Double whammy!!!

  WIGGLE WIGGLE
  A-WIGGLE WIGGLE WIGGLE
  WIGGLE WIGGLE
  A-WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE WIGGLE!!!!

• 20. RnL2008  |  November 25, 2014 at 9:07 pm

  Awwwww, my wiggle boy:-)

• 21. jpmassar  |  November 25, 2014 at 7:58 pm

  thanks, Scottie!

• 22. Steve27516  |  November 25, 2014 at 8:28 pm

  Dance, Wolf, dance!
  🙂

• 23. Raga  |  November 25, 2014 at 8:56 pm

  If Mississippi appeals quickly, there is time for expedition of its appeal to put it on the same schedule as Texas and Louisiana. But the attorney for Mississippi didn't seem keen at all to do so, from what I read in the transcript of oral argument before the district court. He was quite content to take the "wait-and-see" approach, where whatever decision the Fifth Circuit takes in the Texas and Louisiana cases would apply then to Mississippi.

• 24. jdw_karasu  |  November 25, 2014 at 9:09 pm

  I was thinking in the other direction.

  The clock is running to file for an appeal. They have 30 days, which runs out prior to the hearing schedule in the 5th.

  If they file an appeal, which they certainly will, then there's a question of whether the 5th will roll it into the other cases for the same panel. If Mississippi slow walks an appeal for most of the 30 days, the 5th would have to push back the hearing to allow the Mississippi case to be briefed.

  They're already under the 14 day stay that Judge Reeves gave them. To go beyond that, they'd need to either go back to him, or get the 5th to stay the case pending appeal… that still would need them to file a notice.

  I suspect the 5th would just as soon roll all three into one case, not that Mississippi has been dealt with on a district level.

• 25. Raga  |  November 25, 2014 at 9:54 pm

  Let's see. I agree that it could go either way, but if Mississippi objects to the expedition of the appeal, the Fifth may let them lag and proceed with TX and LA as scheduled. If they push back oral argument on TX and LA, the Plaintiffs will have a fit – they're already fuming that the Fifth "expedited" their case and ended up scheduling oral argument for January instead of November. (Not that the Fifth will care what Plaintiffs think.)

• 26. jdw_karasu  |  November 25, 2014 at 8:57 pm

  The walk through "Suspect or Quasi-Suspect Class" is worth everyone's time to read.

  Actually, the whole thing is worth people's time to read. The 72 pages might feel like a lot of time to devote to reading it after having read so many others. But this is quite a good one. Judge Reeves went to town on this.

  As a side note, it's worth reminding folks again just how long the odds were that we'd draw Judge Reeves:
  http://en.wikipedia.org/wiki/United_States_Distri…

  5-1 GOP in District Judges, and 4-0 GOP with the Sr. Judges. The lone Democratic judge, and his number came up. Insane odds, and Judge Reeves made it count.

  The 5th now has TX and Mississippi going for us, and Louisiana with Judge Bigot. I wonder if the 5th will try to roll this into the hearing schedule of the other two so that just one panel hears all three, at one time. Depending on when Mississippi files their appeal (given the state, it likely will be ASAP), one then wonders if they'll need to push back the hearing to give time for all the briefings on this one to be filled.

• 27. RnL2008  |  November 25, 2014 at 9:06 pm

  Thank you…..it appears to be working now:-)

• 28. DeadHead  |  November 26, 2014 at 3:46 am

  My connection timed out twice this morning so its not fixed yet. Seems to be sporadically moving slow.

• 29. Steve27516  |  November 25, 2014 at 9:28 pm

  Hey, DACiowan –
  Off-topic for Mississippi, but related to Missouri:
  On the Wiki map, shouldn't the gold stripe for Missouri be light blue? In turning down the request to lift the stay in the federal case in Missouri, the judge pointed out that the existing stay expires Dec 09. So it's not an open-ended stay at this time.
  Confusing cases there, so maybe I'm missing something –
  Thanks –

• 30. DACiowan  |  November 26, 2014 at 7:25 am

  You're correct, the map has been changed.

• 31. josejoram  |  November 25, 2014 at 10:26 pm

  Here certainely denies the assertion that "there is not a fundamental right to marriage".

• 32. Raga  |  November 25, 2014 at 10:41 pm

  Has Michigan officially filed their response? The Supreme Court docket doesn't yet show that a response has been filed: http://www.supremecourt.gov/search.aspx?filename=…

• 33. DaveM_OH  |  November 26, 2014 at 5:34 am

  SCOTUSBlog says yes. My guess is that the Docket just takes some time to update.

• 34. josejoram  |  November 25, 2014 at 11:07 pm

  Off topic but interesting: http://www.bbc.com/news/world-europe-30190066

• 35. sfbob  |  November 25, 2014 at 11:22 pm

  One of the most striking things about Judge Reeves' decision is the amount of space he devotes to a discussion of anti-gay discrimination in general and within the state of Mississippi specifically. It's the sort of thing that should be referenced in as many contexts as possible from now on.

• 36. F_Young  |  November 26, 2014 at 1:21 am

  Given the tight timeline to get a SCOTUS decision in June 2015, and the expectation that the various state appellants and the circuit courts of appeal will slow walk the appeals, anybody think that the plaintiffs in all the circuits should seek cert before judgement?

• 37. Mississippi Court Lists t&hellip  |  November 26, 2014 at 1:25 am

  […] – full report at  Equality On Trial: Mississippi same-sex marriage ban struck down  […]

• 38. Mississippi Court Lists t&hellip  |  November 26, 2014 at 1:25 am

  […] – full report at  Equality On Trial: Mississippi same-sex marriage ban struck down  […]

• 39. Zack12  |  November 26, 2014 at 4:06 am

  I normally don't read through 72 pages of a court ruling but I did in this case and it is hands down the best ruling our side has gotten to date.
  Judge Reeves puts to bed the garbage argument by the other side how we haven't faced any "real" discrimination and also highlights quotes by several different politicians to highlight the bigoted motives of laws directed towards LGBT people in MS.
  My favorite moment though is when he gives Sutton and Cook's ruling upholding marriage bans the thrashing it deserves and basically calls them out for the right wing hacks that they are.
  All in all, a solid ruling for our side even though the 5th will simply ignore it.

• 40. guitaristbl  |  November 26, 2014 at 4:50 am

  I rarely read opinions nowadays with such interest and investment. This opinion is such a comprehensive history lesson on the anti-gay discrimination especially in Mississippi beginning from the somewhat "welcoming" 40s and 50s to the tough civil rights era. So many people I knew nothing about, so many incidents I was not aware of. This is a treasured opinion for sure, one every Supreme Court justice must read honestly. And this could easily stand as a SCOTUS decision bringing ME if we omit the Mississippi-specific references and focus on the larger picture of discrimination.

• 41. ebohlman  |  November 26, 2014 at 7:14 am

  You can say that again. We learn of Naim v. Naim, the interracial equivalent of Baker. We learn about the gay-bashing murder that was treated seriously at the same time Emmett Till's murder wasn't. This decision could be turned into a complete textbook.

• 42. SteveThomas1  |  November 26, 2014 at 7:25 am

  People were wondering why, given that in oral argument the judge gave all sorts of pro-marriage equality signals, it took this long for him to write the opinion. This history lesson is why. And bless him for it.

• 43. JayJonson  |  November 26, 2014 at 8:00 am

  Yes, this is an extraordinary ruling. Judge Reeves does not flinch. I love this passage, where he quotes Faulkner and makes the point that in Mississippi discrimination against gay people is by no means a thing of the past: "'The past is never dead. It’s not even past.' William Faulkner, Requiem for a Nun 92 (Random House, 1951). That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, 'other' people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination."

• 44. Pat_V  |  November 26, 2014 at 5:13 am

  A question from Europe:
  So with Thanksgiving coming up, all offices in the US will pretty much be closed after today, only to reopen on Monday, right? Which means there will be no new development, no new briefing, no new blog post, and very few comments on the site until Monday?
  Ouch ouch 🙁

• 45. SteveThomas1  |  November 26, 2014 at 5:34 am

  Pretty much. Incidentally, the 4-day weekend of Thanksgiving means that the 14 day temporary stay granted in Mississippi is practically speaking more like an 8 to 10 day stay. In the US generally little goes on during the Wednesday before turkey day other than frantic travel. (And the east coast is due, according to weather forecasts, for a winter storm: while it may or may not snarl travel, most folks I know have altered their plans to travel earlier in the day today than they would during mild weather.)

• 46. guitaristbl  |  November 26, 2014 at 6:12 am

  "The Sixth Circuit disagrees [with the other circuits].In upholding four states’ same-sex marriage bans, it expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, “from the claimants’ perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold.” DeBoer, 2014 WL 5748990, at *20 (emphasis added).
  THE UNDERSIGNED SEES THE JUDICIAL ROLE DIFFERENTLY. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place.47 The framers did not set up Article III to yield to “the superior force of an interested and overbearing majority.” The Federalist No. 10, supra. By honoring its obligation conferred by Article III, the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that CONSTITUTIONAL PRINCIPLES THAT SAFEGUARD LIBERTY AND GUARANTEE EQUALITY ARE NOT SUBJECT TO THE BALLOT."

  Burn Sutton and Cook burn ! Oh the way other judges treat this duo is so immensely satisfying..

• 47. Zack12  |  November 26, 2014 at 6:26 am

  The reality is many of the Bush Jr judges are NOT respected outside the small far right wingsphere because everyone sees them for what they are, right wing hacks posing as judges and nothing more.

• 48. KACinSTL  |  November 26, 2014 at 7:00 am

  I can hear a sweeping classical score when reading these words..

• 49. JayJonson  |  November 26, 2014 at 7:28 am

  Just heard that Justice Ginsburg underwent heart surgery this morning. We must all send best wishes for a speedy recovery to this remarkable woman.

• 50. F_Young  |  November 26, 2014 at 8:05 am

  Prayers are also definitely in order for those who are religious.

• 51. Ryan K (a.k.a. KELL)  |  November 26, 2014 at 8:27 am

  Ugh… Who said we shouldn't be in a rush to get DeBoer v. Snyder decided this term?

  "Supreme Court Justice Ruth Bader Ginsburg, 81, underwent a heart procedure today to have a stent placed in her right coronary artery. A blockage was discovered after Ginsburg "experienced discomfort during routine exercise" Tuesday night and was taken to the hospital, according to a release from the Supreme Court. Ginsburg is resting "comfortably" at MedStar Washington Hospital Center and is expected to be released in the next 48 hours."