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Eighth Circuit asked to put Nebraska marriages on hold pending appeal

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Yesterday, a federal judge struck down Nebraska’s same-sex marriage ban as a violation of the Equal Protection Clause, because the ban discriminates on the basis of sex.

The judge denied a request for a stay pending appeal, but he allowed a temporary stay until March 9 so the state could ask other courts for a stay.

The state immediately appealed the case to the Eighth Circuit Court of Appeals. This morning, the state asked the Eighth Circuit for a stay pending appeal. Presumably, a response will be filed.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  March 3, 2015 at 8:39 am

    "Here, the defects in the district court’s injunction are readily apparent. Because it applies to “all relevant state officials, ”all state officials are left to wonder if he or she falls within the injunction’s ambit. Notably absent from the injunction is any mention of Nebraska’s county clerks."

    Judge Bataillon must have been closely following Florida and Alabama's crazy tricks to evade the judicial orders and therefore intentionally did not start trying to define roles or positions. The umbrella approach is correct.

    Oh….and NOT ONE MENTION OF ANY OF THE SCOTUS STAY DENIALS since October 6, 2014.

    UPDATE: Apologies to my buddy Raga for accidentally echoing the same talking points he made in the previous EoT article on this same topic.

  • 2. TomPHL  |  March 3, 2015 at 9:57 am

    Aren't city, county etc. officials actually state officials? These government entities are created by the state can be destroyed by the state; they are not in any way sovereign. Aren't they just the means the state uses to administer local affairs? Any lawyers know the answer?

  • 3. SteveThomas1  |  March 3, 2015 at 10:36 am

    The answer to that question will differ from state to state. In the few states I have some minimal knowledge of, city and county officials are not classified as "state officials". It's true that the cities and counties are often subdivisions of the state, and can be created or destroyed by the state, and governmental officials at any level are generally classified as "state actors" from a constitutional point of view (qualify for limited immunity, can be sued in Ex Parte Young proceedings, etc.). But if you successfully sue, for example, your city and get a judgment, it's the city treasury that must pay, not the state treasury.

  • 4. Sagesse  |  March 3, 2015 at 11:10 am

    The relevant question is…

    If the state has deputized county clerks (or probate judges) to act for the state in implementing the state's marriage laws (issue marriage licences), then who has the authority to direct those officials how to implement the state's marriage laws. Surely it's the state? And in rare cases where it's not, how does that work, anyway?

  • 5. SteveThomas1  |  March 3, 2015 at 11:40 am

    Well, whoever gives out marriage licenses and keeps registries, etc. will ultimately derive authority from the state. If folks could just sue the state, it would be easy. Unfortunately, a combination of sovereign immunity and the 11th Amendment means that one can't sue the states themselves for constitutional violations. So you have to sue government officials in charge of whatever state action (here, denying marriage licenses) you're complaining about. This is known as an Ex Parte Young action, and for those purposes one must sue the actual correct official. In the case, for example, of California, there is a state office in charge of marriage licenses and the county officials who actually issue them are directly supervised by the state officials who were parties to the Hollingsworth case. So in California, in particular since none of the relevant state officials wanted to put up roadblocks, it only took a single injunction. In Kansas, on the other hand, apparently the county officials who actually issue licenses are actually members of the judiciary and are not supervised at all by any official in the state government. This allows folks to drag their heels a lot more than in some other states. (Being a part of the judicial branch of the state brings some extra complications, but they're pretty technical.) That's why the issue of precisely which officials are named as defendants is vitally important in some states and not that big a deal in some others.

  • 6. TomPHL  |  March 3, 2015 at 2:33 pm

    It also occurs to me that, considering the wording of the injunction, officials in Nebraska should be wondering if somehow the injunction doesn't apply to them rather than if it does.

  • 7. guitaristbl  |  March 3, 2015 at 8:45 am

    Of course they will grant it, if not fast track it to listen to all 4 cases in May and rush to issue a bigoted opinion.

  • 8. scream4ever  |  March 3, 2015 at 8:50 am

    I'm hoping we will have at least one judge on the panel who is on our side to slow things down.

  • 9. brandall  |  March 3, 2015 at 9:04 am

    That would be nice, but it won't matter in terms of the stay expiring in 6 days. Regardless of which way the 8th AC decides, either side will appeal and we'll be at SCOTUS by Thursday. SCOTUS will deny the stay by early Monday morning. We have between 5 to 7 votes consistently backing us now.

  • 10. DrBriCA  |  March 3, 2015 at 9:32 am

    The big question is whether or not those 5-7 votes are willing to overrule the 8th, should the circuit panel place a stay. Will they show deference to the Circuit Cout or will they be equitable in their actions compared with other state stay requests since Oct. 6?

  • 11. Ryan K (a.k.a. KELL)  |  March 3, 2015 at 8:04 pm

    I have to agree with that, as I dont know if the SCOTUS is inclined to overrule a stay pending appeal by the 8CA.

  • 12. VIRick  |  March 3, 2015 at 10:10 am

    "…. the stay (is) expiring in 6 days. Regardless of which way the 8th AC decides, either side will appeal and we'll be at SCOTUS by Thursday. SCOTUS will deny the stay by early Monday morning. We have between 5 to 7 votes consistently backing us now."

    Yes, I'm in perfect accored with you that that will be the up-coming scenario.

    At that point, we can then all celebrate the "Revenge of the Bataillon," a new space odyssey in which gay-love conquers all.

    Note: Un bataillon est une unité militaire regroupant plusieurs compagnies, soit de 300 à 1200 hommes.

  • 13. RemC_Chicago  |  March 3, 2015 at 10:25 am


  • 14. hopalongcassidy  |  March 3, 2015 at 1:03 pm

    I think the word for the military outfit is 'batallion', isn't it?

  • 15. Sagesse  |  March 3, 2015 at 1:26 pm

    Yes, but the judge's name comes from the French word for 'battalion'… hence the deifintion in French :). Rick is being clever.

  • 16. weaverbear  |  March 3, 2015 at 1:47 pm


  • 17. AndresM11  |  March 3, 2015 at 2:51 pm

    Rick is always clever (and charming :P)

  • 18. VIRick  |  March 3, 2015 at 2:18 pm

    Hop, Judge Bataillon's surname is the French word for battalion, thus the definition in French, just as Sagesse suggested (but bearing in mind that Brandall has been nefariously influencing some of my more extreme flights of fancy).

    In particular, I thought you'd especially enjoy the part, "being from 300 to 1200 men." To me, at least, nothing else can quite compare to being swarmed by a horde of hot, cute, eager gay men. A battalion's worth will do.

  • 19. hopalongcassidy  |  March 3, 2015 at 2:43 pm

    Aha. I sit corrected. Je non parlez Francaise …as you can see.

    Me gustan trescientos caballeros calientes, por seguro!

  • 20. DACiowan  |  March 3, 2015 at 3:25 pm

    Je ne parle pas français.

    There you go. 😉

  • 21. Steve27516  |  March 3, 2015 at 2:07 pm

    Mmmm … de 300 à 1200 hommes …

  • 22. Zack12  |  March 3, 2015 at 10:33 am

    That is about the only shot we have.
    We need Jane Kelly, Kermit Bye or Diane Murphy on the panel when our case is heard.
    If we don't get them, then you will see a quick 3-0 ruling against us be issued in short order.
    Of all the Republican judges on the 8th, Lavenski Smith has been labeled the most "moderate" one of them all and he ruled against us in 2006.
    I don't see that changing if he hears it again.
    There are no Republican allies on that court as far as I can tell.

  • 23. brandall  |  March 3, 2015 at 9:32 am

    UPDATE: Cert denied to on the Prop 8 petition to God and the Supremest Court. In its' response issued in less then 24 hours from receipt, the Supremest court responded:

    ""The appeal is dismissed for want of a substantial federal question."

    One Justice, Mary Mother of God (AKA ruthless MMG) who is the 967th cousin 232 times removed of notorious RBG wanted her dismissal vote made public on the order.

    Shortly thereafter, residents of Pearly Gates who had married in California during the "window" celebrated by eating nothing but cookies, cupcakes, cakes and other "ironic" taste treats.

  • 24. Elihu_Bystander  |  March 3, 2015 at 9:56 am


    of course MMG = Mary Margarte Ginsburg

  • 25. VIRick  |  March 3, 2015 at 9:59 am

    Brandall, now I'm REALLY beginning to wonder about you!! LOL

    When God made us all gay men, he bestowed upon us a double-humor gene. However, in your case, I suspect you went back for "extras" and maneuvered to receive a second helping.

  • 26. weaverbear  |  March 3, 2015 at 1:49 pm

    And they said we got online to get helping of 'other' things!

  • 27. Sagesse  |  March 3, 2015 at 10:31 am

    Posting here since this is a Nebraska page. Still a long way to go.

    Senators seek clarity on HHS policy against gay foster parents []

  • 28. jpmassar  |  March 3, 2015 at 11:00 am

    Some Republicans to file Amicus brief in support of Same-Sex Marriage at SCOTUS

    Right Turn has learned that an impressive array of Republicans and Gen. Stanley McChrystal will be filing an amicus brief on Friday in support of gay marriage with the Supreme Court in DeBoer v. Snyder. The case will decide, in the wake of cases striking down the Defense of Marriage Act, if states can restrict marriage to heterosexual couples or if gay marriage falls within the protection afforded by the 14th Amendment.

    The brief’s signatories include former Republican National Committee chairman Ken Mehlman, conservative pundits S.E. Cupp and Alex Castellanos, former White House chief of staff Ken Duberstein, former Mitt Romney senior advisers Beth Myers and Carl Forti, conservative economists Doug Holtz-Eakin (formerly director of the Congressional Budget Office) and Greg Mankiw (formerly on the Council of Economic Advisers), former senator Alan Simpson (R-Wyo.), former homeland security adviser Fran Townsend and former Massachusetts state Senate minority leader Richard Tisei. The presence of an esteemed general suggests that there is no segment of society in which gay marriage is not gaining acceptance. There are on the list centrist Republicans, more libertarian figures and even social conservatives. In a phone interview Mehlman said, “I think the diversity of the people is a reflection of what we have seen which is increased support in every demographic [for gay marriage].”

  • 29. SPQRobin  |  March 3, 2015 at 12:05 pm

    The Parliament of Slovenia approved same-sex marriage just now, as expected. 51 voted yes, 28 no. It hasn't been as much in international news as other countries, but it's awesome to have another European country in the marriage equality list 🙂

  • 30. SethInMaryland  |  March 3, 2015 at 12:17 pm

    congrats 🙂 more good news as the momentum continues to build

  • 31. EricKoszyk  |  March 3, 2015 at 12:31 pm

    It's a big deal because it is the first country in central Europe to do so.

  • 32. davepCA  |  March 3, 2015 at 12:42 pm

    This is wonderful! Congratulations Slovenia!

  • 33. wes228  |  March 3, 2015 at 12:54 pm

    Remember it could still be subject to a referendum.

  • 34. davepCA  |  March 3, 2015 at 1:14 pm

    Bah! I looked for something like that in the news reports I was reading and didn't see any mention of this. Not good.

  • 35. SPQRobin  |  March 3, 2015 at 1:21 pm

    In 2012, a similar law was rejected in a referendum.

    Afterwards, they changed the constitution so that there are two limits on referendums:
    – it cannot be called on laws eliminating an unconstitutionality in human rights (I guess the courts will have to determine whether this law falls under that)
    – when a majority rejects a law in a referendum, there is an additional requirement that at least one fifth of all voters must vote against it

    The first referendum under the new rules was invalid due to the new turnout requirement:

  • 36. davepCA  |  March 3, 2015 at 2:01 pm

    That first rule sounds encouraging….

  • 37. Steve84  |  March 3, 2015 at 2:09 pm

    Unlike the US, a country that understands how to do direct democracy.

  • 38. guitaristbl  |  March 3, 2015 at 3:19 pm

    Interesting..The first one could be used to stop it. Even if it fails on that aspect, the 2nd rule is promising as well. 20 % of the population needs to vote against the proposed law, not just turnout to vote. I highly doubt they will meet that requirement. This looks like it is is here to stay.

  • 39. Wolf of Raging Fires  |  March 3, 2015 at 1:32 pm


  • 40. terryweldon  |  March 3, 2015 at 2:07 pm

    And now – SLOVENIA!

    That's the first Central European country / former Soviet bloc country to go this far.

  • 41. hopalongcassidy  |  March 3, 2015 at 2:50 pm

    Considering the long history of homophobia in the Balkans, it's an important if small step.

  • 42. itscoldoutside  |  March 3, 2015 at 4:25 pm

    We were never in the Soviet bloc because Yugoslavia was part of the Non-Aligned Movement. I will celebrate the day when one of those countries passes marriage equality even more than I celebrated today.

    I still think the new law will be repealed in a referendum. The Catholic church here is a different beast than in the US and should never be underestimated. What's interesting is that even before the new rules for referenda the Constitutional Court only allowed the referendum against same-sex marriage in 2012 to go forward in a 5-4 vote. Perhaps the new changes will embolden them though I'm not optimistic.

    Love the website, by the way. Been here since the very beginning. Yes, Prop 8 was THAT big of a deal. 🙂

  • 43. guitaristbl  |  March 3, 2015 at 3:28 pm

    The vote of the slovenian parliament could prove to be a very important event for the whole region (Central Europe), if it indeed stays as it is, and it is not repealed from a referendum (given the new rules established it seems difficult for that to happen).
    Slovenia is a former yugoslavian republic, it will be the first of those to approve marriage equality with no other former yugoslavian country being close to such a change I fear (Croatia who would have been the next logically now has the constitutional amendment that bans marriage equality and that could prove difficult to repeal).

    It will also have a huge impact in Central Europe. It puts to shame traditionally more liberal nations such as Austria, Switzerland, Germany and the Czech Republic and it could catapult progress on that matter there as well (bills are pending in Austria and Germant and the law is underway in Switzerland). The possibility of a backlash against LGBT people in more conservative countries in the region is also present but not that worrying.
    Slovakia had a referendum that failed less than a month ago, opponents will need time to recover from that.
    Hungary has registered partnerships but also a constitutional ban on marriage equality already. I doubt they can do something worse to punish LGBT people (although homophobia is at rise there due to the rise of the nationalistic (fascist if we want to be honest) Jobbik party).
    Croatia already has the ban in place so nothing substantial should happen.
    Serbia is on its way to enter the EU and their government wants to show an LGBT-friendly face to Brussels, same as Montenegro.
    Any effect is unlikely to spread further than this area.

    Still EXTREMELY important progress if it stands.

  • 44. Pat_V  |  March 3, 2015 at 4:25 pm

    All your points are valid. I would maybe qualify the impact this is likely to have on other countries like Switzerland or Germany. Since all of us following this blog are so aware of all the minute developments in the US and in the world, it is easy to overestimate the amount of attention that most people are paying to these developments. Of course, when the US or Germany will get nationwide marriage equality, this will be huge news that will be widely discussed in the media. For Slovenia however, this is a tiny 2-million people country which is viewed as pretty insignificant, even within Europe (I'm sure more than half of Western Europeans wouldn't even be able to name the capital of Slovenia). So in that respect, I'm a little less optimistic that population and lawmakers in Germany and Switzerland will pay a lot of attention to this (maybe Austria will pay a bit more attention, since they have a common border).
    I'll see how much news coverage this makes – but I suspect it will be relegated to a tiny insert in most newspapers, and likely won't even be mentioned in general TV news. I may be wrong.

    But yeah, in general, it's very cool that now, we will have a new dark blue spot in Eastern Europe, and the bloc Switzerland-Austria-Germany-Czech Republic is starting to be surrounded by equality not just from the west and north.

  • 45. VIRick  |  March 3, 2015 at 4:26 pm

    Guitar, Slovenia's move should also totally shame Italy, given that the two share a common border.

    Last year, the Italian prelates burst their hemorrhoids when Malta approved same-sex civil unions, then had a holy shit-fit, a few months later, when Croatia did likewise (despite their constitutional ban on same-sex marriage).

  • 46. itscoldoutside  |  March 3, 2015 at 4:54 pm

    Not to diss our beloved neighbours but the Italians are renowned for not caring what goes on in the world. The biggest impact will be on the Balkans and maybe Austria.

    And the population numbers aren't all that when harmonization of law across the EU comes into play. Often people only mention political power and neglect the body of law already established in the EU courts regarding LGBT rights. This will only add to that.

  • 47. Decided_Voter  |  March 3, 2015 at 4:59 pm

    Alabama Supreme Court:

    148 pages. I'm going to be honest – I don't feel like reading it. I imagine it's a twisted justification.

  • 48. DACiowan  |  March 3, 2015 at 5:09 pm

    PDF form:

    The order itself starts on 133, if you want to avoid all the BS and cut to the chase.
    The one dissent, Justice Greg Shaw, was on procedural grounds (p. 136) meaning we didn't have a single judge on our side.

    FOAD, AL SC.

  • 49. davepCA  |  March 3, 2015 at 5:39 pm

    Just read the first chunk of it – it's so chock full of blatant anti-gay bumper sticker rhetoric that either hilarious or annoying, depending on your mood. Calling marriages of same sex couples "purported" marriages, and employing scare quotes around the word 'marriage' in the same phrase ('purported "marriages" '), Lots of long-winded bloviating about how wonderful marriage is, the implication that therefore the gays shouldn't get any of it cuz that will ruin it, all sorts of idiotic sky-will-fall nonsense about the current "chaos" and "confusion" baused by same sex couples marrying – marriage touches so many aspects of the law! How will all the judges and know what to do? How will they know what a marriage is?? Oh my God!! And right there on page 86 "only by defining marriage as something it is not…" The threadbare definitional argument. What idiots.

  • 50. Decided_Voter  |  March 3, 2015 at 5:50 pm

    They don't want to see how well it's gone in all the other 30+ states where same-sex couples can marry. Alabama is dealing with nothing new – it's towards the end of the marriage equality process.

    Next try.

  • 51. brandall  |  March 3, 2015 at 5:52 pm

    Oh my. Unfortunately, Alabama has now EXCEEDED my expectations for being the most bias and bigoted state in the union from a political and judicial viewpoint.

    Please, no offense to a lot of good people (like Scottie) who live there. But, trying to countermand a Federal Court order takes the cake.

  • 52. A_Jayne  |  March 3, 2015 at 5:17 pm

    "The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition."

  • 53. brandall  |  March 3, 2015 at 5:57 pm

    They are intentionally trying to setup a constitutional/judicial showdown that has not been seen in modern times. They know it. Very ugly. I hope no one gets hurt in the streets of Alabama as the politicians and now the AL Supreme Court are enticing defiance and rebellion against the Federal Courts and, in essence, the entire Federal government..

  • 54. A_Jayne  |  March 3, 2015 at 5:19 pm

    "As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser."

  • 55. ColleenJuniper  |  March 3, 2015 at 5:23 pm

    This is so baffling, as well as infuriating. Any legal historians know of a time in the past 100 years when a State Supreme Court willfully contradicts the ruling of its federal district court on a constitutional matter? If so, what was the penalty or solution?

  • 56. tornado163  |  March 3, 2015 at 5:29 pm

    I thought that a law had to survive ALL challenges to stay in force. So once the federal district court said the marriage laws were unconstitutional, and that decision wasn't stayed by any higher federal court, then whatever the AL Supreme Court says is pretty much moot because the AL Supreme court can't overrule the federal district court. What am I missing?

    Also, did the AL Supreme Court's decision state that AG Strange does have control over the probate judges? I thought it did, but that was a long decision to read. If so, couldn't that give federal judge Granade the power to force AG Strange to order all probate judges to issue marriage licenses? Since federal judges defer to state Supreme Courts on matters purely about state law – like how probate judges work.

  • 57. brandall  |  March 3, 2015 at 5:39 pm

    The AL Supreme Court can issue whatever decisions it chooses to. The final arbitrator is SCOTUS in those situations where a District or Circuit court rules in the contradictory manner with a state Supreme Court.

    However, attempting to thwart a Federal District court order and ordering the state staff to stop performing SS marriages in contradiction to the Federal District order is quite a blatant move. It's illogical, but they are trying to put a "stay" on the Federal District court. I tried to find out the last time this has happened and was not successful. I'll bet this might have occurred leading up to the Civil War.

    So, now SCOTUS will have 2 motions for emergency relief by Friday if at least one couple tries to marry, is denied and then goes to the Federal District court.

    I just wrote an email to Lyle @SCOTUSblog. He'll probably know the answer to our historical question.

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