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Fifth Circuit will hear Mississippi marriage case on same day as cases from Texas and Louisiana

LGBT Legal Cases Marriage equality Marriage Equality Trials

Fifth Circuit Court of AppealsThe Fifth Circuit Court of Appeals has decided that it will hear the challenge to Mississippi’s same-sex marriage ban on January 9, the same day that similar cases from Texas and Louisiana will be heard.

This seems to be a reversal from just yesterday when the appeals court said it won’t hear the Mississippi case that day.

The cases will be heard by the same three-judge panel. The identity of the panel will be revealed one week before the hearing.

The Louisiana case is also before the Supreme Court, where it’s awaiting a conference where the Justices will decide whether to take it up before judgment at the appeals court. The same-sex couples in the case have waived the 14-day waiting period that typically keeps the Court from distributing a case for conference for 14 days after the response brief is filed. The response brief was filed on December 2, and the state supports Supreme Court review.

Thanks to Equality Case Files for these filings


  • 1. josejoram  |  December 5, 2014 at 10:43 am

    These are good or bad news?

  • 2. Scottie Thomaston  |  December 5, 2014 at 10:45 am

    It's good they're hearing them all at once. And January 9 isn't TOO far off, although the same-sex couples in Texas have been waiting a long time.

  • 3. guitaristbl  |  December 5, 2014 at 10:45 am

    Good news I guess from the 5th. I couldn't stand more than one days of bigoted treatment in oral arguments in the 5th. I hope SCOTUS grants DeBoer after the january 9th conference and why not, on the same day. Would immensly satisfying for it to happen while oral arguments go on in the 5th.

  • 4. nicolas1446  |  December 5, 2014 at 10:47 am

    We won't be saying that if we get a good panel. In that case we would want them to rule to make the 6th circuit matter even less.

  • 5. guitaristbl  |  December 5, 2014 at 10:50 am

    Does it matter whether we get a good panel or not (which is extremely unlikely) ? The attorneys for the states will go en banc and get any pro ME ruling reversed there anyway.

  • 6. nicolas1446  |  December 5, 2014 at 11:07 am

    We en banc takes months. I was saying that if we get a good panel we would want them to rule before all same sex marriage cases are put on hold when SCOTUS grants cert.

  • 7. guitaristbl  |  December 5, 2014 at 11:11 am

    Oh I have a gut feeling an en banc request in response to a pro ME ruling in the 5th would be treated as a burning emergency…

  • 8. BillinNO  |  December 5, 2014 at 12:13 pm

    As we say in New Orleans, "Yeah, you right".

  • 9. Raga  |  December 5, 2014 at 11:16 am

    I wouldn't be surprised if one of them active judges beats all the states' attorneys to it, sua sponte calling for a rehearing en banc, which will no doubt be briefed and voted on extremely quickly and with much enthusiasm.

  • 10. Raga  |  December 5, 2014 at 11:29 am

    Help me out here. What would be our luckiest (or should I say least unlucky) panel? Is there a website ranking the judges according to their (un)fair-mindedness? Can anyone who knows more about current Fifth Circuit jurisprudence shed some light?

  • 11. RemC_Chicago  |  December 5, 2014 at 11:47 am

    Looking but in the meantime found this interesting read:

    "For two decades, the 4th and 5th Circuits were viewed as the most conservative in the nation. But during the past three years, the 4th Circuit at Richmond, Va., has shifted significantly toward the left on many issues, as six judges appointed by Obama took the bench.

    By contrast, Obama has appointed only two judges so far to the 5th Circuit. Ten of the circuit’s 15 active judges were nominated by Presidents Reagan and George W. Bush, leaving the court solidly conservative."

    Note: current Obama count is 3, not 2.

  • 12. Mike_Baltimore  |  December 5, 2014 at 2:26 pm

    What's 3 out of 15 vs. 2 out of 15?

    Not much.

    We're still screwed if the other judges go by religion/philosophy as the basis for their decisions rather than using laws to direct their decisions.

  • 13. Zack12  |  December 5, 2014 at 7:31 pm

    It is truly amazing what Obama has been able to do with the 4th circuit, it truly is.

  • 14. RemC_Chicago  |  December 5, 2014 at 11:55 am

    An interview with Gregg Costa:

  • 15. guitaristbl  |  December 5, 2014 at 12:11 pm

    He clerked for Renhquist ? Yeah that's not a good sign I think…

  • 16. RemC_Chicago  |  December 5, 2014 at 12:00 pm

    From the Texas Observer, February 2006, "The Worst Judges in Texas:"

    Edith Jones (who was previously the chief judge on the Fifth Circuit) has recently "hit the conservative lecture circuit, where she has criticized the Supreme Court for decisions in a host of areas, from rulings on family law to pornography. She has gone on the record enough times to ensure some tough sledding if she ever got in front of the Senate Judiciary Committee as a candidate for the highest court in the land. But the word around Houston is that Jones, despite her high profile, has not been a serious candidate for the Supreme Court for a long time. It wasn’t the sleeping lawyer case that did her in, observers say, it was her performance in a case involving a sexual harassment claim. After hearing testimony that a woman had endured, among other things, a co-worker pinching her breast at work, Jones retorted, “Well, he apologized.” Nominating a woman to the nation’s highest court loses some of its luster when the candidate in question is widely considered to be hostile to women in general."

  • 17. guitaristbl  |  December 5, 2014 at 12:07 pm

    I can only say from my limited research on the justices there that apart from the democratic appointees (with Graves not being very trushworthy imo mainly due to his religious affiliation – 7th day adventists are not the most moderate branch of christianity) the only republican appointee to be trusted would be Grady Jolly imo. He has ruled against creationism and abortion restrictions consistently so I can see him being somewhat favourable towards LGBT rights. Some say that Prado is also a moderate judge, which remains to be seen I guess.

    I think its easier though to point out the very bigoted ones directly to be honest : Edith Jones first of all. We know she is racist, I doubt she is not extremely homophobic. Edith Clement is described as a very conservative judge, extremely close to the originalist philosophy so she is a Scalia of the 5th essentially. And of course we have Southwick, whose nomination was opposed both by HRC and african american organizations. He is the man that joined an opinion on a custody case involving a lesbian mother saying :

    "I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual's exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State's policies, in that her rights to custody of her child may be significantly impacted."

    Jerry Edwin Smith is a right wing hack of the worst kind given his attitude on APA cases.

    And then there is Owen, Elrod and Haynes, three women appointed by Bush jr. I can't say much about them.

  • 18. Zack12  |  December 5, 2014 at 1:27 pm

    Owens record on abortion rights is horrific and Catherina Haynes doesn't think a woman having to drive 400 miles is an undue burden on them.
    Don't know much about Elrod but any judge who makes it a point to regularly appear at the Federalist Society meetings as much as Sutton does is likely to be a no vote.
    I don't know much about the senior judges on the bench who could hear our case other then Emilio Garza, who has no qualms seeing mentally ill people executed, ordered a rape victim to cheer for her rapist and wanted to shut down MS's last abortion clinic, something Jolly overruled him in.
    None of these four are names we want to see either.
    The only question is going to be how anti-gay the option going against us is, that's it.

  • 19. BillinNO  |  December 5, 2014 at 6:37 pm

    Im not so sure about Judge Prado- I hear the Devil wears him.

  • 20. RemC_Chicago  |  December 5, 2014 at 12:13 pm

    Wow. Went through the entire list of judges. As noted on EoT previously, mostly all are Bush or Reagan appointees but for 2 by Clinton, 2 by Carter (!), and 3 by Obama. On assumption only, I'd say we'd want to have the Clinton & Obama appointees. Gregg Costa, appointed by Obama, was a clerk for Rehnquist. Are the clerks matched to judges based on their ideological viewpoints?

  • 21. Zack12  |  December 5, 2014 at 2:05 pm

    In many cases yes so that is a red flag for me along with the fact that given how young he is, he wasn't blocked to the 5th circuit the way Goodwin Liu was to the 9th.
    Given how Republicans like to stack the Circuit Court with young judges in their late 30's early 40's while not allowing Democrats to do the same is a red flag to me that this judge is no moderate but a right wing hack.
    I hope I'm wrong.

  • 22. Mike_Baltimore  |  December 5, 2014 at 2:45 pm

    Attorneys (usually young) apply for clerkships, the justices (or judges, whichever the case may be) review the applications, and choose who will be clerking for them.

    So no, in theory, clerks are not matched to judges based on ideological viewponts, but in reality they are matched.

  • 23. Wolf of Raging Fires  |  December 5, 2014 at 10:54 am


  • 24. RnL2008  |  December 5, 2014 at 10:57 am

    Why does this site keep flipping back and forth between the regular format and the mobile format? This is frustrating along with idiots who actually believe that SCOTUS is going to uphold the ruling from the 6th!!!

  • 25. Wolf of Raging Fires  |  December 5, 2014 at 11:02 am

    Same here

  • 26. RnL2008  |  December 5, 2014 at 11:08 am

    I mean really if SCOTUS was going to rule against us, they have had opportunity to do so… think now they will is possible, but not probable in my opinion!!!

  • 27. DeadHead  |  December 5, 2014 at 11:57 am

    Could somebody at EoT PLEASE put the pressure on the tech support to fix this flip flopping between mobile/pc versions? It has become very frequent and annoying. Toggling the On/Off button does not work.

  • 28. Mike_Baltimore  |  December 5, 2014 at 2:56 pm

    When I was in college, I worked for the college radio station. One September, there were intermittent interruptions of the FM signal. It wasn't until the Chief Engineer (CE) noticed that the disruptions ONLY occurred when a certain fan placed in a certain position was on and blowing air (the studios were not air-conditioned, thus we had lots of fans). After investigating for about an hour, the CE finally found a loose wire (deep inside an electronics cabinet) that was shorting out the broadcast as it blew in the air. After fixing the wire, there were no more interruptions, thus ending about three weeks of intermittent interruptions of the radio signal.

  • 29. RnL2008  |  December 5, 2014 at 11:54 am

    Folks, if ya DON'T like my comments, then simply DON'T read them……nothing in my previous post deserved a mark down……..but hey, if it makes ya feel good….what the hell, right?

  • 30. hopalongcassidy  |  December 5, 2014 at 11:56 am

    Some readers hereabouts will give a mark down just to be a prick. Don't let it bother ya.

  • 31. RnL2008  |  December 5, 2014 at 12:00 pm

    Thanks, I try not to let it bother me……and it really is not a big issue…but sometimes….it's like be a big person and just tell me what you disagree with. Thanks for the comment:-)

  • 32. Jen_in_MI  |  December 5, 2014 at 1:14 pm

    Oh Rose, you are one of my favorite people to read here – your passion for equality is undeniable! Don't use your precious time wondering about the motivations of faceless people you don't know, for their "disapproval" truly means nothing. Wishing you a nice evening with your wife. 😉

  • 33. RnL2008  |  December 5, 2014 at 1:19 pm

    You are so right…….and I have truly more important issue going on than to worry about who does or doesn't like my comment.

    Thank you for the kind wishes…'s raining cats and dogs here and preventing us for going out to Sac State……weather has been bad the last few days.

  • 34. FilbertB  |  December 6, 2014 at 9:47 am

    Love your posts. I rarely comment but I press the like button on your posts consistently. You are one of the reasons I love EOT!

  • 35. RnL2008  |  December 6, 2014 at 11:48 am

    Thank you:-)

    I tr really hard to add to this site by trying to make informed comments.

  • 36. galen697  |  December 5, 2014 at 1:49 pm

    Different topic but still relevant. Per SCOTUSblog, both the Michigan and Louisiana cases have been listed for the Supreme Court's Jan. 9th conference. Looks like that's going to be a very busy day!

  • 37. jdw_karasu  |  December 5, 2014 at 2:40 pm

    The 5th may need to act fast if the earlier SCOTUS conference is any indication:

    Sep-29 = Long Conference with 4th, 7th & 10th Circuit cases on the plate
    Oct-06 = denial of cert on those cases

    One week turn around.

    The judges of the 5th will know this, unless they're completely obtuse. SCOTUS isn't going to take long to issue a cert on one of the cases, most likely the MI one. That in turn would stay the 5th.

    Frankly one of the more interesting things to watch will be if the judges on the 5th panel go all Ponder and issue a ruling quickly, or if theyact in no hurry knowing that SCOTUS will take it out of their hands in a few days.

  • 38. jdw_karasu  |  December 5, 2014 at 6:16 pm

    The 5th may need to act fast if the earlier SCOTUS conference is any indication:

    7th Circuit on Baskin v. Bogan & Wolf v. Walker

    Aug-26 Hearing
    Sep-04 Ruling

    7 weekdays. Posner & Co. probably had a good idea how they would rule before the hearing. Posner is more of a wordsmith than most, so he likely wanted to polish up the final ruling. If we draw 3 GOP Judges, they all are of the same mindset, and want to roll something out fast…

    One of them could have it done over the weekend and rule on the Jan 12. Which might beat SCOTUS, depending on how fast SCOTUS goes. There are a number of anti-ME ruling out there to draw from. The State briefings will point to the 5th Circuit law/cases that the judge can hang his hat on. The judge would't need to get as twisty as Sutton, and keep it short and the the point (as we've seen on some of our Wins after the initial flurry of rulings).

    If you get 3 that want to rule before SCOTUS forces a stay, and they're all in lockstep (i.e. kills off the chance of a dissent needing to be written that eats up a few days)… they could rush it just to give Their Side a pair of Circuit wins to off set our wins in the 4th, 7th, 9th & 10th and all the various District wins.

    Not likely, but something fun to watch that week/weekend/following week. 🙂

  • 39. nicolas1446  |  December 5, 2014 at 6:58 pm

    Well however they rule it won't change the outcome because Kennedy has already made up his mind so we can just hope they don't have time so that the 6th circuit can forever look bad in history.

  • 40. Mike_Baltimore  |  December 5, 2014 at 7:53 pm

    Off topic (and for those who need a lighter side of the news):

    Headline at the 'Advocate':
    'Ohio Judge Mistakenly Grants Divorce to Same-Sex Couple' (although he now says he may vacate the decision.)

    Turns out he was relying on documents prepared by another judge, and the documents didn't specify that the couple was same-sex. (Well, that's his excuse right now. Hang on, though, as the excuse might change.)

  • 41. Ryan K (a.k.a. KELL)  |  December 6, 2014 at 8:15 am

    What is the 11CA waiting on to issue a date for orals? The 5CA is moving in an expedited manner now, especially in regards to Mississippi. You have to wonder if the 11CA is just throwing its collective hands up, assuming SCOTUS will apply a stay to Brenner v. Armstrong given their pending review in DeBoer v. Snyder, and they will never have to even really have orals and decide the case (other than issue judgement in whatever form SCOTUS does in DeBoer).

    If SCOTUS grants certiorari in DeBoer, what's the process in the circuit courts to place pending or in process cases (as we will have had orals in the 5CA, proceedings in the 11CA, who knows in the 1CA for PR and 8CA for Arkansas and Missouri) on hold? Is that done by directive of SCOTUS, self-determined by the circuit courts, or through a motion by either side in the case? If SCOTUS grants cert, would it be best to let things continue or come to a standstill?

  • 42. cpnlsn88  |  December 6, 2014 at 9:42 am

    I don't know for sure but if SCOTUS grants cert they become the main centre of action. Any ruling either way would (potentially at least) be superfluous and would be akin to briefing notes from the Circuits of Appeal. With DeBoer we are fortunate that if cert is granted we are quickly into briefings from parties, amicus briefs and SCOTUS hearings in the next few months and a good trial record. Of course from the point of view of briefs we have been here before many, many times in Hollingsworth, Windsor and the times Circuits ruled as well as SCOTUS deliberating on multiple stay requests. The issue is therefore fairly mature by now and not so much on the edge of new(ish) legal reasoning. SCOTUS has been around this now several times and is now ready to rule with a majority f states having marriage equality without the sky falling in.

  • 43. Raga  |  December 6, 2014 at 4:24 pm

    The difference is that the Eleventh hasn't expedited Florida's appeal. If I remember right, there wasn't even a motion to expedite from either side. In fact, Bondi asked for and obtained a month long extension to file her opening brief. In regular appeals, according to Eleventh Circuit rules, an oral argument slot is not assigned until briefing is complete.

  • 44. Ryan K (a.k.a. KELL)  |  December 6, 2014 at 4:28 pm

    How much more briefing is still required…when is briefing completed?

  • 45. Raga  |  December 6, 2014 at 5:40 pm

    Plaintiffs' Response Brief is due December 15, and an optional reply brief from Bondi is due 14 days from the date the response brief is filed. If no further extensions are granted, briefing will therefore be guaranteed to be complete by December 29 (perhaps sooner) at which point the clerk will look for the earliest open oral argument slot to assign the case to. (3-judge panels are assigned to oral argument slots through a separate "random" process.)

  • 46. Zack12  |  December 6, 2014 at 11:47 am

    On a different note, the Missouri AG has appealed the federal ruling striking down that state's ban.
    This is another Circuit I'd rather not hear from this time.
    They already made their thoughts on marriage equality clear in the Bruning case, no need to see them do it again.

  • 47. bayareajohn  |  December 6, 2014 at 6:27 pm

    On still a different note, I'm again being pushed to the mobile pages, and can't turn it off. The switch is ignored. By entering a topic from the mobile page, I can sometimes get back to regular pages, sometimes not.

    This only started a week ago. It can't be terribly hard to find out what changes were made about then.

  • 48. SeattleRobin  |  December 7, 2014 at 1:31 am

    I'm still having trouble also. I really don't like the mobile version. There's no way to adjust the text size and the teensy print is difficult to read with middle-aged eyes!

  • 49. hopalongcassidy  |  December 7, 2014 at 8:49 am

    It was obviously some software tweak that ended up being a bug. Any competent programmer would have copies of what was working before it went FUBAR.

  • 50. SeattleRobin  |  December 7, 2014 at 1:33 am

    On yet a different note, here's a little humor for Notorious RBG fans:

  • 51. Sagesse  |  December 7, 2014 at 5:22 am

    For those who are having trouble keeping track, a good summary of what happened, and didn't happen to ME in Kansas.

    Why the Supreme Court's Decision Not to Decide Same-Sex Marriage Made a Mess in Kansas [The Jurist]

  • 52. hopalongcassidy  |  December 7, 2014 at 8:47 am

    That's fascinating and a little bit terrifying as well.

  • 53. Rick55845  |  December 7, 2014 at 9:55 am

    Thank you for posting the link to that article in The Jurist. It cleared up a lot of confusion I had about the effect of the various rulings and injunctions in Kansas. It also clarified for me what the effect of a preliminary injunction is. It should make it easier for me to understand future rulings.

    It is indeed a mess in Kansas. Let's hope that SCOTUS grants cert in one or more cases and settles the issue permanently, and soon.

  • 54. rob2017  |  December 7, 2014 at 9:23 am

    The article in The Jurist link above on Mich- issippi animus toward LGBT is disturbing.

  • 55. Rick55845  |  December 7, 2014 at 10:13 am

    Agreed. We GLBT still have a long way to go before we truly will be treated equally under the law. But we have even further to go before we will be seen as equals and as citizens deserving the protection of laws by those who despise us.

  • 56. franklinsewell  |  December 7, 2014 at 11:37 am

    For those worried about whether or not the Supremes can accept a case in January and decide by June …

    This from SCOTUSBlog:

    "The Court has three more dates on which cases will be sent to the Justices for consideration at the January 9 Conference: December 10, 17, and 23. Of course, consideration at the first January Conference would not necessarily mean that the Justices would grant review then, but having the cases ready very likely would assure that, some time in January, they could vote to grant review. Any case granted in January has a strong chance of being decided before the current Term ends, probably in late June."

  • 57. DJSNOLA  |  December 7, 2014 at 1:54 pm

    I live across the street from the Fifth Circuit. So Ill be there on the 9th for sure!

  • 58. Raga  |  December 7, 2014 at 7:32 pm

    "I live across the street from the Fifth Circuit."

    Bless you. What kind of protective armor do you use?

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