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Mississippi marriage case fast-tracked, marriages put on hold

LGBT Legal Cases Marriage equality Marriage Equality Trials

Fifth Circuit Court of AppealsHere are some breaking news updates in the Mississippi marriage case in the Fifth Circuit Court of Appeals:

– The Fifth Circuit has fast-tracked the case, so it will proceed more quickly. It will be heard by the same three-judge panel hearing the Louisiana and Texas cases, but it won’t be heard on the same day as those cases. The court hasn’t scheduled arguments in the Mississippi case yet.

– Briefing will be completed by January 2.

– The Fifth Circuit has granted the request for a stay in the case. Marriages will be put on hold until the appeal process is finished.

The cases from Texas and Louisiana will be heard January 9, and it seems likely the Mississippi case would be heard close to that date.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  December 4, 2014 at 1:06 pm

    What a coincidence the 5th schedules oral arguments on the last day SCOTUS will review cases for this term….or is it a coincidence?

  • 2. Jen_in_MI  |  December 4, 2014 at 1:14 pm

    How convenient for them! You just know this timing is no accident.

  • 3. RnL2008  |  December 4, 2014 at 1:17 pm

    Will it truly matter? My guess is that SCOTUS will here one or more cases from the 6th and rule on this issue before the 5th circuit rules on this issue….just my opinion!!!

  • 4. guitaristbl  |  December 4, 2014 at 1:20 pm

    It may not be the last date the judges grant cases for this term, it's only their first January conference. I expect them to grant cases for the current term for at least another conference.

  • 5. guitaristbl  |  December 4, 2014 at 1:24 pm

    Oh so the arguments won't be heard at the same day but from the same panel…A strange programming choice but hey if it delays any kind of decision from the 5th I'll take it !
    Fingers crossed there is at least one judge in favour of ME on that panel that will be writing a long appeal,in the unlikely case SCOTUS does not act.

    Also the order seems to imply a strong likelihood for the state to succeed on the merits :

    "..we have recognized that a “movant ‘need only present a substantial case on the merits when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay.The instant motion presents just such a case."

    Not something we did not expect of course (and Graves who wrote the order is the most likely Obama appointee to rule against ME anyway).

  • 6. Raga  |  December 4, 2014 at 4:21 pm

    The programming choice isn't strange at all. The Tenth Circuit did the same thing with Utah and Oklahoma. Oklahoma followed Utah, and they agreed to expedite the appeal and for it to be heard by the same panel, but scheduled a separate oral argument a week after Utah's.

  • 7. Mike_Baltimore  |  December 4, 2014 at 6:48 pm

    The 6CA held separate hearings for each of the four states, one after the other.

    The 7CA held separate hearings for each of the two states (IN and WI), one after the other.

    We already have history of Courts of Appeals scheduling on the same day, but separate hearings, even if the hearings are in front of the same panel.

    My opinion? 5CA is trying to keep up with other CAs. In other words, nothing but a bunch of PR on the part of 5CA.

  • 8. wes228  |  December 4, 2014 at 1:27 pm

    Does anyone know how long it typically takes the Arkansas Supreme Court to render an opinion? Is it unrealistic to hope for a ruling before Christmas?

  • 9. guitaristbl  |  December 4, 2014 at 1:53 pm

    Considering two of the judges retire when the year ends (and with the man elected governor I expect this court to turn radically conservative from now on so we were just on time), I expect it anytime now personally. A ruling before christmas is very likely imo.

  • 10. Zack12  |  December 4, 2014 at 4:50 pm

    In regards to the governor's election in Arkansas, it's not like the Democrat was any better.
    Mike Ross voted yes on the Federal Marriage Amendment in 04 and 06, against DADT repeal and the Matthew Shepard act and has made it known he has no respect for LGBT citizens.
    Sad to say, but for LGBT folks in Arkansas this election, the only difference in bigots is which letter they had after their name.

  • 11. guitaristbl  |  December 4, 2014 at 4:53 pm

    Arkansas is turning into a right wing hellhole very fast, so it wouldnt matter if the democrat was bigoted or not. Anything that's not red in Arkansas these days is shot down.
    Anyway let's keep the positive here : We will get most probably a favourable ruling before one of the liberal courts of the country turns very conservative.

  • 12. Zack12  |  December 4, 2014 at 5:16 pm

    It was never a model of liberalism which is how it was so remarkable that it's Supreme Court was as liberal as it was.

  • 13. ebohlman  |  December 4, 2014 at 3:04 pm

    Local observers were saying they expected 4-5 weeks, so late this month sounds likely.

  • 14. nicolas1446  |  December 4, 2014 at 1:37 pm

    The defendants did not meet the requirements for a stay. They are not likely to succeed on the merits, they will not suffer irreparable harm if no stay is granted, and the plaintiffs will suffer irreparable harm if the stay is not lifted. Therefore, no stay should have been given. The Obama appointee that was on the panel that decided this not only agreed the state should get a stay, but he wrote the order which makes no sense to me. The 5th circuit sucks.

  • 15. brandall  |  December 4, 2014 at 1:47 pm

    In 16 days, it will be the one year anniversary of Shelby's Kitchen v. Herbert ruling and the start of SS marriages in Utah. The first gay=stay was issued Jan 6, 2014 and there has been literally thousands of comments on EoT since that date on why the gay=stays were allowed in the first place following your logic in your comment. The historical, rigorous requirements for a stay of a constitutional violation are no longer being followed when it comes to ME cases. Once we win at SCOTUS, it will be interesting to see how the gay=stay logic is cited as precedent when requesting or granting stays in other future constitutional cases.

  • 16. Eric  |  December 4, 2014 at 4:52 pm

    Not all Democratic appointees are pro-liberty.

  • 17. Zack12  |  December 4, 2014 at 5:17 pm

    Chester Straub (he wanted DOMA upheld) of the 2nd circuit is one of them.

  • 18. mariothinks  |  December 4, 2014 at 2:07 pm

    They just can't wait to rule against us…

  • 19. guitaristbl  |  December 4, 2014 at 2:20 pm

    Hopefully they won't have enough time to rule.

  • 20. nicolas1446  |  December 4, 2014 at 2:23 pm

    But they sadly will though since SCOTUS will probably not hear oral arguments until late March or April. The 5th has enough time to rule before then. That is why I am hoping for a positive ruling from the 11th.

  • 21. guitaristbl  |  December 4, 2014 at 2:26 pm

    Not really. Procedures in federal courts freeze as soon as SCOTUS grants cert to a case, not when it heard oral arguments or renders a decision.

  • 22. nicolas1446  |  December 4, 2014 at 2:38 pm

    I had it wrong then. I thought that they decided for themselves whether to put the case on hold.

    SCOTUS announces whether they will grant cert the following Monday after the conference which makes that date Monday January 12. The oral arguments on the 5th are on January 9. It will be very surprising to see a court of appeals rule in 3 days. (especially when two of those days are weekends)

  • 23. SteveThomas1  |  December 4, 2014 at 3:21 pm

    Actually, SCOTUS has taken recently to publishing orders in which they grant cert. on the same day as the conference, with the regular order list (which consists of essentially all orders finalized during a conference, generally with page after page of cert. denied orders) on the Monday after. This is not always what they do, but most often. So if they grant cert. in any ME cases, there's a good chance (but less than a certainty) that we'll hear about it on before the following Monday.

  • 24. DaveM_OH  |  December 4, 2014 at 3:28 pm

    Partially true – if SCOTUS issues an Order on a non-Monday, it's more than likely a grant (or denial of stay of execution, etc); however, most Grants and Denials still come out on Monday.
    See past Orders lists at

  • 25. SteveThomas1  |  December 4, 2014 at 4:01 pm

    Check out the orders from the last term, paying particular attention to the miscellaneous orders issued three days prior to the order lists in January:

  • 26. DaveM_OH  |  December 4, 2014 at 3:07 pm

    Yes but — because SCOTUS hasn't been asked to do anything in regards De Leon v. TX, that case is not necessarily stayed pending DeBoer et al. Robicheaux maybe, as their Cert before judgment petition is already pending.
    Now, would the 5th Circuit sua sponte suspend their consideration? Or would they suspend on the motion of De Leon or TX? Most likely. But again, to formally halt the process would require an action from the 5th; however, they could easily just agree not to write anything until the outcome of DeBoer.

  • 27. BenG1980  |  December 4, 2014 at 2:27 pm

    No, if SCOTUS grants cert, I expect all pending cases will be immediately stayed, and that will likely occur in early-to-mid-January.

  • 28. Fledge01  |  December 4, 2014 at 7:46 pm

    A petition for a stay has to first be submitted to SCOTUS before SCOTUS can grant a stay. They don't look around at all the cases to see if any of them are on point. The parties have to argue why their case would or would not be affected by a ruling in another case of which SCOTUS has granted cert.

  • 29. BenG1980  |  December 5, 2014 at 1:29 am

    I'm not saying that SCOTUS itself will stay the pending cases, but that the courts before which they are pending at such time would very likely do so, either upon motion of one or both of the parties or sua sponte.

  • 30. debater7474  |  December 4, 2014 at 2:34 pm

    In terms of hoping they won't have time to rule – the central problem with the 5th circuit is the problem of unanimity. There is a major difference in the time it takes to write an ME opinion that is unanimous and one that is divided – the opinion has to be written first, followed by the dissent only after the opinion is finished seperately. Then each side gets to go back and edit again. Explains why we got Posner in about a week and the ninth in a relatively brief period as well. If the circuit panel is unanimously againt us, which is quite likely, then we could easily see a very fast rollout of their opinion. if, however, we get one judge on their sides with us, the process could stretch out for one months. We just have to hope for one judge.

  • 31. Zack12  |  December 4, 2014 at 4:52 pm

    Sad to say but that is the best case scenario for us.
    Outside of Edward Prado, none of the George W judges on the 5th will rule in our favor.
    And the St. Ronnie and George Bush Sr ones are even worse, if that's possible.

  • 32. guitaristbl  |  December 4, 2014 at 4:55 pm

    It should be interesting if we got today's motions panel as the actual panel : Prado, Graves and Owen. And as I said personally I could trust Jolly from the Reagan appointees as well.

  • 33. Zack12  |  December 4, 2014 at 5:18 pm

    If we got Edith Jones, hoo boy.
    She would make the option Sutton wrote look like a pride proclamation.

  • 34. guitaristbl  |  December 4, 2014 at 5:26 pm

    Oh Leslie Southwick would be worse I think. Have you read his page on wikipedia ? As I said, worst panel possible : Edith Jones, Edith Clement, Leslie Southwick. They are capable of overruling Lawrence by themselves if given the chance. And use words and arguments that even the Bowers majority didn't in 1986.

  • 35. Zack12  |  December 4, 2014 at 5:59 pm

    I have read up on him and sad to say, Democrats made a mistake in blocking Bush's original pick for that seat, Charles Pickering.
    Southwick is a 100 times worse then Pickering ever could have been.
    As for the names you mentioned, put Emilio Garza on there as well.
    He might be on senior status but he still hears a lot of cases and each one shows what a vile human being he is.

  • 36. debater7474  |  December 4, 2014 at 7:52 pm

    Wow this was post was so full of typos. I promise I'm not illiterate.

  • 37. Mike_Baltimore  |  December 4, 2014 at 9:06 pm

    "illiterate" or 'illustrate'?

    'illiterate' means (as an adjective):
    unable to read or write

    As a noun, 'illiterate' means:
    a person who is unable to read or write.

    Since I've seen several of your posts in which you don't seem illiterate, and many others have commented on the fast-tracking of the Marriage case, I'm hoping it was you who made a typo, as I see none in the article.

  • 38. debater7474  |  December 4, 2014 at 9:20 pm

    I'm talking about my own post being full of typos, lol. Not the article.

  • 39. brandall  |  December 4, 2014 at 2:43 pm

    Another "retroactive" benefits win. After winning ME across the lands, securing benefits denied because someone couldn't marry will be fought in the courts and local/state/federal agencies. The SSA just announced a settlement for an RI couple married out of state, but RI did not recognize the marriage at the time of the spouse's death. I am assuming this settlement will apply to any couple in an out-of-state recognition situation. A good step forward for these couples under difficult circumstances. This adds to the CT and PA cases where we can go back in time and secure what our taxes paid for.

  • 40. davepCA  |  December 4, 2014 at 2:57 pm


  • 41. DaveM_OH  |  December 4, 2014 at 3:16 pm

    DeBoer is officially complete.
    Dec 3 2014Letter of November 25, 2014, waiving the right to file a rep[l]y brief in support of the petition.

    I guess they waited to read Snyder/Schuette's brief, and then said it wasn't worthy of a reply.

  • 42. guitaristbl  |  December 4, 2014 at 3:26 pm

    I do believe they should have filed a reply to shoot down Snyder tbh :-\ Anyway, I hope that does not hurt the case…

  • 43. nicolas1446  |  December 4, 2014 at 3:46 pm

    I agree. I don't see why they chose not to file a reply. And also, if they were not planning to file a reply they could have notified the court sooner and that would have put the petition on time for the December 12 conference.

  • 44. franklinsewell  |  December 4, 2014 at 4:24 pm

    They notified the court on November 25. The December 3 date is the date the Docket Entry was posted.

  • 45. Raga  |  December 4, 2014 at 4:29 pm

    Agreed, but it seems they waived reply on November 25? Which was the deadline for the December 12 conference? I wonder why it took so much longer to file the waiver?

  • 46. franklinsewell  |  December 4, 2014 at 4:51 pm

    Too much Thanksgiving turkey in the Clerk's Office? Who knows.

  • 47. franklinsewell  |  December 4, 2014 at 4:10 pm

    The petitioners in the Louisiana case (the state) waived the 14-day waiting period AFTER the reply brief is filed, so this is not the same.

  • 48. Raga  |  December 4, 2014 at 4:28 pm

    They waived reply on November 25? Then, according to the case distribution schedule, it should be distributed for the December 12 conference! Right?

  • 49. franklinsewell  |  December 4, 2014 at 4:30 pm

    Yes, but SCOTUSBlog reports that it has been scheduled for January 9. I think that November 25 must have been the day they sent the communication. Not sure why it wasn't noted on the docket until December 3.

  • 50. DACiowan  |  December 5, 2014 at 5:14 am

    Is the court giving time for amicus briefs?

    If you check the docket of an oft-relisted case, you'll notice that cases aren't distributed for a conference until four days before, meaning we'll know if DeBoer is distributed for the next conference on the 8th (Monday).

  • 51. Raga  |  December 5, 2014 at 8:11 am

    Nice! I really hope they make it to the Dec 12 conference. The docket report doesn't yet say which conference it is being distributed for. Something for the justices to formally discuss before Chrismas break, so they can mull over it more during the break if they want to relist for some reason.

  • 52. DACiowan  |  December 5, 2014 at 8:54 am

    To be precise, it looks like distribution is the Monday (at least a few days) before the conference, as the last November conference was on a Tuesday to avoid Thanksgiving but the distribution date was the previous week's Monday.

    I don't know if the waiver of reply not being docketed until the 3rd would invalidate the petition for this conference but we'll find out.

  • 53. Raga  |  December 4, 2014 at 4:31 pm

    Has anybody else noticed that the expedited briefing schedule is so unfair to the Plaintiffs? Mississippi gets 15 days for its opening brief, Plaintiffs get just 5 days from then for their answering brief, and then Mississippi gets another 9 days for a reply?

  • 54. guitaristbl  |  December 4, 2014 at 4:47 pm

    Did you expect anything different from the 5th ? That's why I am saying every filing we make is important and the plaintiffs in DeBoer should not have waived their reply.

  • 55. brooklyn11217  |  December 5, 2014 at 7:18 am

    I think Plaintiffs' proposed schedule purposefully gave them not much time to reply, since they wanted it expedited. I am sure that Robbie probably already has a great brief written. 😉

  • 56. Mike_Baltimore  |  December 5, 2014 at 7:21 pm

    Remember – the attorney for the Plaintiffs is Roberta Kaplan. I have a feeling she knows what she's doing.

  • 57. guitaristbl  |  December 4, 2014 at 5:22 pm

    Totally off topic but I was doing some historical digging..Did you know that the man alleged to have changed justice Powel's mind and vote in Bowers v. Hardwick (he initially voted to strike down the bans – thus changing the majority opinion and then voted to uphold the ban), Michael Mosman, then a clerk for Powel, is the sole active republican federal district court judge for the district of Oregon, nominated by Bush jr ? He also issued a temporary injunction to the civil union law in Oregon, stopping it from getting into effect. Eventually he dismissed the lawsuit brought by a group that wanted to bring the issue on the ballot that questioned the verification of signatures on petitions and let the law take effect..
    The fact that this man got on federal bench only solidifies how sick Bush and the GOP in general was and is really..

  • 58. Zack12  |  December 4, 2014 at 5:38 pm

    Sad to say but very likely.
    We are going to see more of these in the future as well, and just as Ginsburg said, the Hobby Lobby ruling will be used to justify all of them.

  • 59. KahuBill  |  December 4, 2014 at 5:59 pm

    Judge Michael Mosman – a graduate of Brigham Young Univ and law school. Mosman is an old Mormon name – kinda like royalty.

  • 60. OctaA  |  December 4, 2014 at 5:32 pm

    Does anyone know how likely this bill is to pass the senate or be signed into law by Snyder?

  • 61. guitaristbl  |  December 4, 2014 at 6:00 pm

    Well given that Michigan has a republican trifecta (GOP controlled house, senate, governorship) I would say very likely. And the LGB anti-discrimination bill that was discussed has stalled, mainly due to the inclusion of the T (although let's face it that's just an excuse for republican lawmakers). On the other hand Michigan has the leading case in SCOTUS on marriage equality. Having the legislature pass such a law and Snyder sign it right now could be bad timing when it comes to animus claims before SCOTUS by the plaintiffs when the marriage case is heard. I believe they may save it for after the ruling from SCOTUS, which, if positive, will only embolden them to pass it to attack the SCOTUS decision.

  • 62. Zack12  |  December 4, 2014 at 7:21 pm

    I expect to see a lot of them get passed when SCOTUS makes it ruling.

  • 63. Mike_Baltimore  |  December 4, 2014 at 9:39 pm

    Depends on whether the 'true believers' or the 'for the benefit of the GOTP' people are in control (and I don't know the answer to that).

    If the 'true believers' are in control, the legislation will be passed ASAP. If the 'for the benefit of the GOTP' people are in control, any anti-GLBT legislation possible will be passed soon after SCOTUS rules.

    The Michigan legislature begins it's next session on January 14, 2015, and that session continues until the end of 2016 (although not necessarily continuously). Thus they have lots of time to consider any legislative action they may take.

    In contrast, the next Maryland legislative session also begins on January 14, 2015, but by the state Constitution, the legislative session ends 90 days later (at midnight, April 13, 2015 [but can be briefly extended by 'stopping the clocks'] ). The governor can also call the legislature into 'special session', but next year the governor is GOTP and the legislature [both chambers] is Super-majority Democratic, so special sessions are not expected. The legislature can also call itself into legislative session, but only for overriding any vetoes by the Governor.).

  • 64. nicolas1446  |  December 5, 2014 at 6:52 am

    Those bills will not survive legal attack if SCOTUS says that gays are a suspect class subject to heightened scrutiny when they rule on marriage equality.

  • 65. Equality On TrialFifth Ci&hellip  |  December 5, 2014 at 10:35 am

    […] seems to be a reversal from just yesterday when the appeals court said it won’t hear the Mississippi case that […]

  • 66. Equality On TrialRelative&hellip  |  December 30, 2014 at 3:16 pm

    […] Graves, appointed by President Obama, did write the order granting a stay of marriages in Mississippi, but his order specifically noted that the case is […]

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