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READ IT HERE: Opening brief in Kansas’ appeal of same-sex marriage case

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Officials in Kansas have filed their opening brief in Marie v. Moser, which challenges the state’s same-sex marriage ban. The plaintiffs won the case in federal district court based on the Tenth Circuit’s decisions in Kitchen v. Herbert and Bishop v. Smith, but Kansas continues to challenge the ruling. A panel of Tenth Circuit judges would be bound by existing precedent, so it’s not obvious why the state is pushing this appeal.

You can read the opening brief here:

14-3246 Appellants' Opening Brief by Equality Case Files

Thanks to Equality Case Files for these filings


  • 1. RnL2008  |  January 29, 2015 at 10:04 am

    Are you flipping kidding me……446 pages of BS from Kansas officials who already should know that they are going to lose this appeal……..someone needs to walk up to these idiots and smack them on the head………clear reason why ya just CAN'T fix stupid!!!

  • 2. RnL2008  |  January 29, 2015 at 10:36 am

    Okay, but still were all the attachments really necessary? My guess is no, but let's waste the courts time by adding the unnecessary stupid fluff and really upset the Judges…….Kansas has got to know that this ISN'T going to go well for them when there is already binding precedent by the 10th.

  • 3. MichaelGrabow  |  January 29, 2015 at 10:10 am

    What an incredible waste of time and money.

  • 4. davepCA  |  January 29, 2015 at 12:30 pm

    So it's like Kansas is attempting a "Hail Mary" pass.

    After the game has already ended.

    And everyone in the stadium has to pay a huge extra fee for it.


  • 5. Jaesun100  |  January 29, 2015 at 10:38 am

    They want that on the record in case the Supreme Court rules against us , they don't want to be bound by precedent so they will push this right on..

  • 6. VIRick  |  January 29, 2015 at 4:51 pm

    Jaesun, yes, state officials in both Kansas and Idaho, ignoring precedent, reality, and common sense, are attempting whatever desperate legal maneuver they can possibly conjure in a vain effort to keep their case "alive" (never mind that both cases have already been pronounced DOA months ago), hoping against hope that by some miracle, SCOTUS will uphold the bans in the 6th Circuit this June, and thus, their own "corpses" will be resuscitated and resurrected.

  • 7. Zack12  |  January 29, 2015 at 11:14 am

    I still won't be shocked if the National Guard has to get called out to Kansas when all is said and done.
    Kansas often flys under the radar when it comes to bigotry but trust me, it is there in spades.
    And with Sam Brownback running the show, I fully expect them to fight equality with every last breath.

  • 8. Raga  |  January 29, 2015 at 11:21 am

    Any update on whether Michigan plans to appeal or seek a longer stay in Caspar v. Snyder, where two weeks ago, a federal judge ordered Michigan to recognize the 300 or so marriages that took place in the window between Friedman's ruling and the Sixth Circuit's stay? I don't see any appellate record on PACER, so Michigan has just one more week to file an appeal and ask the Sixth Circuit to extend the stay.

  • 9. Raga  |  January 29, 2015 at 11:25 am

    BREAKING: Georgia federal case put on hold. In the meantime, Judge suggests an interlocutory appeal from his order denying the motion to dismiss within ten days.

    ORDER that the Motion to Stay Proceedings Pending a Ruling by the United States Supreme Court is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to discovery in this action, but DENIED with respect to non-discovery pleadings, including the Answer required to be filed by Defendants Aderhold and Fenton. Defendants Aderhold's and Fenton's Answer is required to be filed on or before February 17, 2015. IT IS FURTHER ORDERED that the Court's January 8, 2015, Opinion and Order 49 is CERTIFIED under 28 U.S.C. § 1292(b). The Court determines that its January 8th Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the January 8th Order may materially advance the ultimate termination of this litigation. The ten-day period within which to appeal the Court's January 8th Order will run from the date of this Order. Signed by Judge William S. Duffey, Jr on 1/29/2015.

  • 10. Steve27516  |  January 29, 2015 at 11:46 am

    Raga, I'm sorry but I don't understand what this means. Can you interpret, please? Thank you!

  • 11. Raga  |  January 29, 2015 at 12:00 pm

    I don't fully understand it either. To the extent I do, the judge has put all significant proceedings (discovery, fact-finding, trial, summary judgment, etc.) of the case on hold pending the outcome of the Sixth Circuit cases from the Supreme Court. However, other proceedings such as the pending defendants' answer to plaintiffs' amended complaint are not on hold.

    Meanwhile, the judge is suggesting that his order denying the motion to dismiss is itself a significant ruling that, if appealed immediately, might move the case along quicker while the other proceedings are stayed. Georgia has ten days to file such an appeal with the Eleventh Circuit.

  • 12. guitaristbl  |  January 29, 2015 at 12:01 pm

    So this order may work as the venue that can land the case before the 11th circuit and potentially be heard along the Florida and Alabama cases.

    So essentially the case is somewhat out of the district court. Wow this man really does not want to rule..!

  • 13. guitaristbl  |  January 29, 2015 at 11:53 am

    So basically state defendants can appeal the denial of dismissal but the district court stays proceedings on the actual questions presented ?

    And what does that mean : "The Court determines that its January 8th Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the January 8th Order may materially advance the ultimate termination of this litigation." ?

    That the Order he released on january 8th, if appealed to the 11th can lead to an ultimate resolution on the merits as well ? So he wants the hot potato off his hands entirely without making a decision on the merits ?

  • 14. Raga  |  January 29, 2015 at 12:07 pm

    I think he is referring to the fact that this case (despite having been filed several months ago) is still at a very early stage in the district court. There is not even a summary judgment motion that would allow him to rule on the merits, so he can't do so. It may take ages for such motions to be now filed and briefed, and the case could possibly head towards a trial which would add a lot more delay beyond July (when SCOTUS is expected to rule). So he is suggesting that an appeal now to the Eleventh Circuit might move things along at a much faster pace.

  • 15. Steve27516  |  January 29, 2015 at 12:16 pm

    Interesting! Thank you, Raga and guitaristbl.

  • 16. guitaristbl  |  January 29, 2015 at 12:31 pm

    So if defendants take on his proposition the case is effectively out of district court (I doubt the 11th will remand it for decision on the merits since it has both Florida and Alabama before it). That leaves only the cases in ND in district court, once the Nebraska case is also decided on that level.

  • 17. VIRick  |  January 29, 2015 at 2:16 pm

    I'm still convinced that "North Dakota and the 6th Circuit" makes for a perfect name for an EoT rock group.

  • 18. VIRick  |  January 29, 2015 at 1:32 pm

    "…. this case (despite having been filed several months ago) is still at a very early stage in the district court."

    The Georgia case has been one of the slowest-moving of all the marriage cases, seemingly setting new records for delays. It's also a massive case which has been expanded several times over. Here's my summary of it, as of 26 August 2014, published on a different web-site:

    "The Georgia same-sex marriage case, 'Innis v. Aderhold,' originally filed on 22 April 2014 by Lambda Legal, has been expanded to a putative class-action suit on behalf of all unmarried same-sex Georgia couples and all Georgia residents with valid marriages from other jurisdictions but which are not presently recognized by the state of Georgia.

    In addition, on 1 August 2014, the court granted the plaintiffs’ motion to amend their complaint to add two additional plaintiffs and an additional defendant."

  • 19. Zack12  |  January 29, 2015 at 1:42 pm

    It's slow because the judge is a bigot that wants to drag this out as long as possible before he rules against us.

  • 20. DrBriCA  |  January 29, 2015 at 3:16 pm

    Oh, I would say "Bishop" from Oklahoma with 10+ years from filing to district ruling (and another 9 months until cert denial of the appellate ruling) holds the record as slowest moving. 😉

  • 21. VIRick  |  January 29, 2015 at 4:36 pm

    DrBri, you got me there. You're correct. The Oklahoma case, "Bishop v. Smith," at 10+ years, was indeed, the grand-daddy of them all.

    I was thinking more in terms of the remaining current, pending cases, and how little movement the Georgia case has seen since it was filed.

  • 22. VIRick  |  January 29, 2015 at 12:33 pm

    Guitar, the short answer to your last question is "Yes."

    Raga/Guitar, I have two notes recorded concerning Judge Duffey's order of 8 January 2015 thaat may help provide for the long answer:

    "Late Thursday, 8 January 2015, a federal judge dismissed the state of Georgia’s "Motion to Dismiss," which would have otherwise stopped a challenge to its ban on same-sex marriage. The case," Inniss v. Aderhold," will move forward, District Court Judge William Duffey Jr. ruled."

    and on 20 January 2015, this was noted:

    "Recently, on 8 January 2015, District Judge William Duffey denied the state’s request to dismiss Lambda Legal’s case, stating in court documents that the argument Olens presented that marriage is only for procreation is not a valid reason to stop the case from moving forward."

    It sounds as if he's telling the state that if they are dis-satisfied with his 8 January 2015 order, they can go ahead and immediately appeal this order denying the state's "Motion to Dismiss."

    Georgia translation, Judge Duffey speaking (off-the-record):

    "State of Georgia, get this case involving those icky gays out of my courtroom. Even though your arguments relative to pro-creation are totally lame, immediately appeal the order in which I denied your equally lame "Motion to Dismiss." Then, I don't have to deal with it any further. That way, too, the 11th Circuit Court of Appeals can handle the big announcement when the time comes, 'You've been told.'"

  • 23. Raga  |  January 29, 2015 at 12:44 pm

    Perfect translation 🙂

  • 24. VIRick  |  January 29, 2015 at 2:41 pm

    By offering an unsolicited "escape route" upon which the state can appeal, it's quite obvious that Judge Duffey wants this case out of his face. He doesn't want to deal with it at all, and further, doesn't want to end up being stuck as the last federal judge to rule on the wrong side of history in a marriage case. He'd much prefer to allow Sutton (and Cook) to claim that dubious "honor." I can literally see him squirming, practically begging to be released from his dilemma.

  • 25. DrBriCA  |  January 29, 2015 at 3:20 pm

    It'll be interesting to see this summer if he'll be like the Nevada judge and hand over the pro-ME ruling to another judge, or if he'll just issue a one-sentence ruling: "See Obergefell and don't bother me."

    (Clearly, if/when SCOTUS rules in our favor, Georgia could start issuing immediately, but you know there will be stubborn clerks who will wait until a district judge in their own state specifically enjoins them.)

  • 26. micha1976  |  January 29, 2015 at 1:07 pm

    Didn't the judge grant the motion to dismiss in part (regarding the due process and heightened scrutiny claims)? Wouldn't have plaintiffs have standing to appeal (or at least cross-appeal) his order on that basis as well?
    I think it would be way better to have the 11th Circuit handle this case instead of this District Court judge ASAP…

  • 27. Raga  |  January 29, 2015 at 1:11 pm

    Good point! I think the Plaintiffs should appeal immediately (or cross-appeal if the Defendants appeal first) now that the judge is encouraging an appeal.

    If the Eleventh overturns the dismissal of Plaintiffs' fundamental right or heightened scrutiny claim, that pretty much seals the deal in terms of the merits. Yup – a 11th Circuit appeal would be a much quicker road for the freedom to marry in Georgia.

  • 28. micha1976  |  January 29, 2015 at 1:24 pm

    I don't think an appeal to the 11th Circuit would be resolved before June, but it might be resolved quicker after the SC decides. I'm still shaking my head over this District Court judge in Nevada who preferred to recuse himself than to do what the 9th Circuit forced him to do…

  • 29. Zack12  |  January 29, 2015 at 2:07 pm

    Because that judge was prejudiced against us from the start (as shown by his ruling)and was going to be damned if he was going to sign any order granting marriage equality in Neveda

  • 30. VIRick  |  January 29, 2015 at 2:26 pm

    Remember, too, that Tara Borelli, having successfully gotten the Nevada decision reversed at the 9th Circuit Court, is now working on the Georgia case. She's good. I trust her abilities.

  • 31. wes228  |  January 29, 2015 at 3:11 pm

    How could the plaintiffs appeal? So far, they've gotten what they wanted: the motion to dismiss the lawsuit was denied.

  • 32. Raga  |  January 29, 2015 at 3:14 pm

    The motion to dismiss the lawsuit was denied, but the judge did dismiss specific claims – due process and heightened scrutiny – of the Plaintiffs – see micha's comment above. We've seen cross-appeals from Plaintiffs on specific claims, e.g., the current cross-appeal at the Eighth Circuit by Missouri Plaintiffs even though the district court struck down the state ban.

  • 33. DrBriCA  |  January 29, 2015 at 3:24 pm

    Great idea! He was rather dismissive about most of the plaintiffs' merit claims in his earlier ruling, so the plaintiffs themselves could appeal now that he's cluing both parties in that he wants this topic to be off his docket. Brilliant. Would be great to ensure that heighten scrutiny gets reviewed as well!

  • 34. VIRick  |  January 29, 2015 at 1:16 pm

    "I think it would be way better to have the 11th Circuit handle this case instead of this District Court judge ASAP…"

    Micha, it would appear that the District Court judge in Georgia would be in perfect agreement with you on that point.

  • 35. JimmyGa  |  January 29, 2015 at 2:10 pm

    Breaking where? Sitting on pins and needles.

  • 36. guitaristbl  |  January 29, 2015 at 2:24 pm

    I don't know if anything has seen any of the fillings about this, someone should check the docket :

    I do see why the state wants the Louisiana Supreme Court to hurry, to get an anti equality opinion before SCOTUS rules in order to somehow influence things but I don't see why the plaintiffs would do that. I thought this court was known to be extremely conservative.

  • 37. flyerguy77  |  January 29, 2015 at 3:10 pm

    HA HA Louisianan is out of the luck.. With 5th Circuit's decision predictions LOUISIANAN Supreme Court's future decision will be DEAD

  • 38. Raga  |  January 29, 2015 at 5:35 pm

    The article says both sides urged the Court to hurry up. The dicket shows that oral argument was held at 2pm this afternoon. There was a live feed of the argument from the Court's website. How come such an important hearing schedule wasn't reported here before? I can't find the recording anywhere. If someone finds it, please post it here. Thank you.

  • 39. VIRick  |  January 29, 2015 at 6:07 pm

    "The dicket shows …. "

    Raga, perhaps Louisiana's mini-skirt is too high.

    In any case, in French, it's "la bite," but don't ask why it has a feminine gender.

  • 40. Raga  |  January 29, 2015 at 6:09 pm

    You have keen, discerning eyes 🙂

  • 41. VIRick  |  January 29, 2015 at 9:18 pm

    Raga, thanks for the coy compliment, but your typo did remind me that whenever I'm visiting my friend in DC, those keen, discerning eyes, in night-vision mode, have noted that if the "girls" down the block, looking for "johns," move an inch too far, and the mini-skirt is too high, the dicket shows.

  • 42. guitaristbl  |  January 30, 2015 at 10:47 am

    Impossible ! Oral arguments on the merits in Constanza before the Louisiana Supreme Court and we did not have a single report ? If it is true, it's not good news, not at all…!

  • 43. VIRick  |  January 30, 2015 at 11:28 am

    The Original 2005 Louisiana Supreme Court Ruling on Same-Sex Marriage

    The article quoted herein, was written on 19 January 2005, the date upon which the Louisiana Supreme Court first upheld the state constitutional ban on same-sex marriage. Of particular importance is the fact that 4 of the 7 judges who issued this ruling are still sitting on the Louisiana Supreme Court:

    NEW ORLEANS (AP) — The Louisiana Supreme Court on 19 January 2005 unanimously reinstated the anti-gay marriage amendment to the state constitution that was overwhelmingly approved by voters in September 2004. The high court reversed a state district judge's ruling in October 2004 which struck down the amendment on the grounds that it violated a provision of the state constitution requiring that an amendment cover only one subject.

    "Each provision of the amendment is germane to the single object of defense of marriage and constitutes an element of the plan advanced to achieve this object," the high court said. The court's ruling effectively puts the amendment in the state constitution. "We're obviously delighted," said attorney Michael Johnson, who represented the Alliance Defense Fund, which argued for the amendment's legality before the Supreme Court.

    But gay rights activist and state legislative candidate Chris Daigle said the amendment did nothing to strengthen the institution of marriage. "High divorce rates, high adultery rates, poverty, lack of education, parents having to hold more than one job, those are the real threats to marriage," he said.

    The amendment was sent to the ballot by the Legislature and approved by 78% of the voters on 18 September 2004. Legislative backers said that although gay marriages are banned by state law, the amendment was needed to ensure that courts would not authorize the marriages, as had happened in Massachusetts.

    In striking down the "defense of marriage" amendment, Judge William Morvant of Baton Rouge had ruled that the amendment also prevented the state from recognizing any legal status for common-law relationships, domestic partnerships and civil unions between both same-sex and heterosexual couples.

    Six of the justices joined in the majority opinion authored by Justice Jeanette Theriot Knoll. The seventh, Chief Justice Pascal Calogero, wrote a concurring opinion.

    At issue was a provision of the amendment that stated: "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be recognized." Opponents had warned that the amendment went far beyond banning same-sex marriage and would deny contractual rights to all unmarried couples — whether gay or heterosexual — in such areas as owning property, willing it to heirs, and taking legal care of an incapacitated partner. As a result, they contended, the amendment had more than one object, and therefore could not become part of the constitution. But the Louisiana Supreme Court said the each part of the amendment is "germane to the object of 'defense of marriage.'"

  • 44. scream4ever  |  January 30, 2015 at 11:39 am

    The ruling was based on a technicality. Legal challenges like this rarely ever succeed on these merits anyways. Regardless of whatever the Louisiana Supreme Court does, the Fifth Circuit seems poised to strike down their ban at any moment.

  • 45. Raga  |  January 30, 2015 at 11:58 am

    'the Fifth Circuit seems poised to strike down their ban at any moment" – assuming they didn't shove all their papers into a corner on the evening of January 16.

  • 46. scream4ever  |  January 30, 2015 at 12:40 pm

    Considering the plaintiffs and defendants in the Texas case both requested that they issue a ruling (and I don't believe anyone from either side in Louisiana or Mississippi has asked for it to be put on hold), I fully expect that they will issue a ruling. We probably would've heard by now if they decided to put it on hold, or so you'd think.

  • 47. Zack12  |  January 30, 2015 at 1:16 pm

    Keep in mind a dissenting judge can drag things out by taking his or her sweet time in writing their option, which I imagine Judge Smith is doing.
    It could also be that if the ruling is in our favor, the pro-equality judges will want to wait until March at the earliest.
    That will give the 5th less time for an en banc, which will certainly overturn our 2-1 ruling.

  • 48. flyerguy77  |  January 30, 2015 at 1:22 pm

    I think if we are right, about 5th Circuit, they will lift the stay or SCOTUS will, 5TH enbanc won't have enough time to rule right now, we need to focused to be positive, and have good vibes.. We don't need to worry about En-banc hearing….

  • 49. scream4ever  |  January 30, 2015 at 8:06 pm

    Oh no of course. I absolutely don't expect a ruling from the 5th until March at least. There average period between oral arguments and decisions handed down in the 5th circuit is 6 weeks. I just think the 5th would've announced it by now if they were even considering staying the case.

  • 50. Raga  |  January 31, 2015 at 12:52 am

    Here's the video, from ECF:

    It is only a recognition case, and the Chief Justice, at least, seems to be on our side on this one. Even if a majority of this Court might be reluctant to suggest that Louisiana must allow same-sex couples to marry within its borders, there is a chance that perhaps they will, on the limited question of recognizing out-of-state marriages, affirm the lower court.

    As a side note, it seems that a majority of the Court were students of the older attorney arguing for our side – he argued well, despite having an absent-minded-professor look. He did forget his pocket watch on the podium after he was done, though 🙂

  • 51. JayJonson  |  January 31, 2015 at 7:32 am

    The Louisiana Supreme Court has never been known for its courage or perspicacity. The justices are elected and are terrified of the Roman Catholic Church and the Family Research Council. They are not likely to do the right thing. It is also not a well-respected court, so I doubt that any ruling from them will have any effect on the SCOTUS decision.

    I did find it interesting that the Chief Justice (who had to sue to get the position) seems favorable to a Full Faith and Credit decision re marriage recognition.

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