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READ IT HERE: Plaintiffs’ briefs in Eighth Circuit challenge to Arkansas and South Dakota’s same-sex marriage bans

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The plaintiffs’ (same-sex couples) briefs have been filed in two cases in the Eighth Circuit Court of Appeals challenging two states’ marriage bans. The briefs were filed in the Arkansas and South Dakota marriage cases.

Arguments in these cases, as well as cases from Missouri and Nebraska, will take place May 12.

You can read the briefs here:


15-1022 – Arkansas Plaintiffs' Brief by Equality Case Files

South Dakota:

15-1186 – South Dakota Plaintiffs' Brief by Equality Case Files

Thanks to Equality Case Files for these filings


  • 1. DrBriCA  |  March 20, 2015 at 9:05 am

    Here's hoping that the Missouri plaintiffs appeal the stay up to SCOTUS! The Eighth refused to lift the stay yesterday.

  • 2. Raga  |  March 20, 2015 at 9:58 am

    Me too, but the lack of any coverage on this beyond the fact that the motion was denied is depressing – trying to stay positive here, but it's hard. As a separate matter, I'd have preferred another state's plaintiffs (e.g., Nebraska) appealing to SCOTUS, since Missouri is a "limbo" state where a state court case resulted in marriage licenses already being issued in some parts (three counties, I believe, from Wikipedia). Still, someone should take it up there. SCOTUS is already behaving unusually in denying stays of lower court rulings (thereby allowing disruption of status quo) after agreeing to hear appeals involving the same questions. I believe they wouldn't be taking this unusual step unless five Justices already believe that there is a substantial probability of concluding on the merits that it is a fundamental rights violation – which is extremely serious and trumps any other harm and/or resulting chaos/confusion (see Alabama), and shouldn't depend on the federal circuit that the couples live in. I believe SCOTUS will lift a stay if asked.

  • 3. DrPatrick1  |  March 23, 2015 at 10:30 am

    Raga- I disagree that they have been "behaving unusually in denying stays of lower court rulings (thereby allowing disruption of status quo)…" The status quo was a denial of a stay, and they did not disrupt this by granting a stay. The status quo of allowing an unconstitutional law to be enforced was already disrupted with the lower court ruling. I think it was entirely consistent for them to deny the stay.

    WHAT WOULD be much different, would be if they reversed an established stay. That would be a bit unusual, given they have already granted cert in cases which should definitely answer the underlying question. This is a different step which would be quite surprising for them to take.

    I agree it would be nice to send the request to dissolve the stay to SCOTUS to see what they would do. The upside could be they withdraw the stay, spreading equality sooner than June 2015. The downside could be they maintain the status quo, maintaining the stay, which would empower any judge who still rules on the issue before June 2015 to issue a stay in the first place. Right now, there is good reason to suggest that any prodiscrimination judge will simply not rule, or even hear, the case until after June 2015, and any proequality judge would like to rule before SCOTUS. Thus, it is hard to imagine how any real couple is harmed by trying now and failing in SCOTUS. They will rule in our favor but not until June anyway. SO if we try and succeed we bring more equality faster, and if we fail nothing changes. While not a win-win scenario, it is at least a win-no lose situation. I think we should try, but if we lose we should be neither surprised nor devastated. This would not portend a negative ruling in June.

  • 4. Raga  |  March 23, 2015 at 8:34 pm

    DrPatrick, I think we're talking about different meanings of "status quo". Let me clarify.

    "The status quo was a denial of a stay, and they did not disrupt this by granting a stay."
    In considering whether to stay a lower court's ruling or not, the status quo I was referring to concerns the underlying issue, which is enforcement of the marriage laws before said ruling. While the lower court's decisions about their constitutionality are themselves under appeal, and the Supreme Court has agreed to hear those appeals, the usual scenario heavily favors the preservation of status quo – and therefore, I reasoned, there must be something really strong in the "likelihood of success on the merits" stay-factor to counter that – denial of a fundamental right would be a strong candidate. A Justice who determines that there is a strong likelihood that a fundamental right has been denied would be hard-pressed to grant a stay, even if it means preserving the status quo.

    "The status quo of allowing an unconstitutional law to be enforced was already disrupted with the lower court ruling."
    You and I and most lower courts agree that these laws are unconstitutional, but the Supreme Court has yet to rule that way. All they can take into consideration until then in choosing whether to grant or deny stays is the likelihood of success on merits.

    According to your interpretation of "status quo", when the district court and Tenth Circuit denied the stay to Utah and the Supreme Court granted the stay, it was a disruption of status quo. Under my interpretation, it wasn't – it was a reinstatement (should have been a preservation, but many marriages did take place during the gap) of status quo.

    I concur with your second paragraph. It would be even more unusual for them to lift a lower court's stay, but "unusual" in the sense that they rarely do it. They did that early this term with the Texas abortion clinics closure case (partially), preserving status quo (allowing the continued operation of abortion clinics instead of forcing them shut). See their order here. It is simply an application to vacate stay (and not a mandamus petition like I've heard some others claim here and on Equality Case Files).

    "If we fail, nothing changes" – I disagree. There are people who are dying, expecting children (as the recent Texas petition to lift stay shows), etc. who may not be many in number, but nevertheless deserve to exercise their constitutional rights as soon as possible. And if it takes an appeal to SCOTUS to lift stay to try, I say why not go for it? I think, despite it being unusual for them to lift a stay, there is a fighting chance that they would, given (my impression) that they must have already had a strong reason to disrupt status quo in the Eleventh Circuit and it would be unfair to the people in the Eighth Circuit states that they should wait until a final ruling on the merits whereas those in the Eleventh Circuit states need not and are already entitled to enjoy the right to marry.

    "I think we should try, but if we lose we should be neither surprised nor devastated. This would not portend a negative ruling in June."
    I completely agree with you here.

    Of course, I may be entirely wrong and perhaps the Supreme Court, at this point, is simply deferring to the Circuit Courts of Appeals on the stay issues ("maintaining status quo" according to your interpretation). Sending an appeal to lift a stay would also serve the purpose of testing out all the above scenarios/hypotheses.

  • 5. Zack12  |  March 20, 2015 at 9:11 am

    I wish we knew the panel already.
    That will determine whether we get a quick 3-0 ruling against us or one that can be dragged out until SCOTUS rules.

  • 6. guitaristbl  |  March 20, 2015 at 9:12 am

    Our hopes now can rely on a pro-equality judge getting on the panel to slow down a decision from the 8th. If there are 3 anti-equality judges I expect them to even break the 7th circuit's record in issuing an anti-equality opinion.

  • 7. Silvershrimp0  |  March 20, 2015 at 11:34 am

    The 5th Circuit released 3 unpublished opinions today. The marriage equality cases were not among them. I was really hoping we'd hear some good news from the 5th today. Hopefully we'll get something next week.

  • 8. NetAmigo  |  March 20, 2015 at 11:40 am

    I've noticed that they may add more opinions as published ones, later in the day.

  • 9. Zack12  |  March 20, 2015 at 11:40 am

    It's going to be in the next couple of weeks, I'm certain of that.

  • 10. scream4ever  |  March 20, 2015 at 12:24 pm

    For sure before the Supreme Court holds their oral arguments.

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