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Part of Georgia marriage case to move to Eleventh Circuit Court of Appeals

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In an order yesterday, the federal district court hearing a challenge to Georgia’s same-sex marriage ban put part of the challenge on hold pending the outcome of Supreme Court review of the issues, but left other parts of the case open for further review.

The procedural background of the order is fairly complicated, but here it is laid out as simply as possible:

– Discovery is stayed, which means any motion filed which requires discovery from either party will have to be put on hold as well.

– Motions that don’t require discovery (such as documents and specific information) from either party can still be filed and decided.

– The plaintiffs had filed their complaint, which is generally the first document of substance in a case, to which a defendant’s (the state’s, in this case) answer is required. The judge ordered the state defendants to submit an answer to the complaint.

In addition to those points, the district court is allowing an appeal of the order from January 8 resolving the motion to dismiss the case.

Both parties can appeal the order, because both parties won and lost parts of it. Since either party can appeal, here’s generally what the order said, and who can appeal which parts:

– First, the court held that Baker v. Nelson, the 1972 summary dismissal by the Supreme Court of a same-sex marriage case from Minnesota, doesn’t apply. It held that there have been many “doctrinal developments” in equal protection and due process case law since then. The state can appeal this part of the ruling.

– Second, the court held that marriage for same-sex couples is not a fundamental right. The plaintiffs can appeal this part.

– Third, the court held that heightened judicial scrutiny does not apply either under due process or equal protection. The plaintiffs can appeal this part.

– Fourth, the court held that under equal protection, the state’s marriage laws don’t discriminate on the basis of sex or sex stereotyping. The plaintiffs can appeal this part.

– Fifth, the court held that the marriage laws discriminate based on sexual orientation. The state can appeal this part.

– Sixth, the court held that the laws should be analyzed under rational basis, the most lenient form of judicial scrutiny. The plaintiffs can appeal this part.

– Seventh, the court held that under rational basis, the motion to dismiss “does not address how Georgia’s asserted interests in child welfare and procreation are advanced by the State’s prohibition on same-sex marriages, and the State’s refusal to recognize lawful marriages performed in other States.”

This kind of appeal from a motion to dismiss isn’t typical – the judge specifically certified it, suggesting that the Eleventh Circuit would be able to have contrary rulings in front of it to aid its decision-making.

But the state had wanted the whole case put on hold, so the order isn’t a clear win for either side. Expect to see an appeal to the Eleventh Circuit in the Georgia case soon.

Thanks to Equality Case Files for these filings


  • 1. Rick55845  |  January 30, 2015 at 8:21 am

    Thank you for bringing some clarity to this very confusing case, Scottie.

    This judge really went his own way, didn't he?

  • 2. Decided_Voter  |  January 30, 2015 at 8:33 am

    This is the best summary I've seen on this yet. Thank you.

    To keep with your format, I will just add the state can appeal the Seventh part.

  • 3. hopalongcassidy  |  January 30, 2015 at 10:25 am

    Can and will, we must presume.

  • 4. Brad_1  |  January 30, 2015 at 10:06 am

    Great work, Scottie. Thank you.

  • 5. Raga  |  January 30, 2015 at 11:52 am

    Thanks for unraveling the tangled order, Scottie. I was in confusion until your explanation today.

  • 6. VIRick  |  January 30, 2015 at 12:29 pm

    Thanks, Scottie! You did an excellent job of clarifying with your own finely-executed "Hinkle Maneuver" here.

    Unfortunately, viewing the bigger picture, the low-information voters and the Georgia trailer trash will never understand what just happened.

  • 7. micha1976  |  January 30, 2015 at 12:58 pm

    I think I read somewhere that plaintiffs definitely plan to appeal the order. Cant find it anymore, though…

  • 8. VIRick  |  January 30, 2015 at 1:09 pm

    Writer Lyle Denniston explained:

    Judge Duffey noted that the Eleventh Circuit Court already has before it a federal judge’s decision nullifying Florida’s ban, and he pointed out that he has taken a different approach from the Florida decision and suggested that it would be proper for the Eleventh Circuit Court to have those differences before it, if it is willing to let Georgia appeal.

    The plaintiffs and defendants now have ten days to appeal the January 8 order to the 11th Circuit, which can either accept or reject the appeal. Lambda Legal has said they will be filing an appeal within a few days. If the 11th Circuit accepts the appeal, Georgia’s case will be on the same track for a decision from the 11th Circuit as the Florida and Alabama cases.

  • 9. Mike_Baltimore  |  January 30, 2015 at 1:14 pm

    The thing I liked best about the order (probably the only thing) was highlighted in Scottie's first point – we have a judge who FINALLY and unequivocally says 'Baker v Nelson' does not apply, and goes on to explain why it doesn't apply.

  • 10. guitaristbl  |  January 30, 2015 at 1:53 pm

    That's the most complicated order imo that concerns marriage litigition thu far in any state. The judge used any legal maneuver he had in his hands to not make a decision on the merits and get the issue of his hands and hoping the 11th will do the dirty work. Remains to be seen if the 11th will relieve him of his duties and hear the case along with the ones from Florida and Alabama and decide the merits.

    I expect the plaintiffs to be more eager to grab on this opportunity and appeal the parts of the order that do not go their way.

    A cowardly position but hey we'll take it, it does speed things up in the 11th as a whole.

  • 11. VIRick  |  January 30, 2015 at 2:17 pm

    "The judge used any legal maneuver he had in his hands to not make a decision on the merits and get the issue off his hands …."

    Guitar, indeed, he did! All on his own, he maneuvered to get those icky gays out of his courtroom, and fob the bulk of the matter off onto the 11th Circuit Court to handle the case the rest of the way. The good news is: we got past this weasel of a judge.

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