Equality On TrialPotential class-action challenge to Alabama same-sex marriage ban won't be dismissed

Potential class-action challenge to Alabama same-sex marriage ban won’t be dismissed

April 27, 2015

By Scottie Thomaston

LGBT Legal Cases Marriage equality Marriage Equality Trials

Buzzfeed reports:

WASHINGTON — The ongoing feud between Alabama and federal courts over the state’s ban on same-sex couples’ marriages continued Friday, as a federal judge kept alive advocates’ attempt to take marriage equality statewide.

U.S. District Court Callie Granade has not ruled on the underlying class-action request — which would apply Granade’s ruling that Alabama’s marriage ban is unconstitutional to probate judges, who grant marriage licenses, statewide — but she refused on Friday to grant state and local officials’ request to dismiss the amended class-action complaint.

Judge Granade denied motions to dismiss from Alabama Attorney General Luther Strange, as well as two probate judges: Don Davis of Mobile County and Tim Russell of Baldwin County.

The attorney general had argued that he was not a proper defendant in the case, but as Judge Granade pointed out in her order, he’s said the opposite in other challenges to Alabama’s ban. The probate judges raised a whole host of issues, largely challenging the court’s jurisdiction and asking the federal court to step aside since the state supreme court has reached out to decide the marriage issue.

The denials of all the motions means the case will proceed. There’s still no order on class certification, that is, whether the plaintiffs and defendants will be certified as classes for purposes of challenging the same-sex marriage ban in all 67 counties. Judge Granade could decide that request soon, or she could wait until the Supreme Court issues its ruling in the marriage cases this summer.

The order denying the attorney general’s motion to dismiss is here. The order denying the probate judges’ motions is here.

Thanks to Equality Case Files for these filings

Equality news round-up: Michigan won’t have... Both sides face skepticism from Justices on...

3512080 Comments2015-04-27+15%3A00%3A40Scottie+Thomaston

1. Wolf of Raging Fires | April 27, 2015 at 8:11 am

Why wait? I don't understand the waiting thing. Get it done now. Justice delayed is justice denied.
2. 1grod | April 27, 2015 at 8:59 am

Wolf: Why Wait?: Judge Granade needs to assess the potential impact of her ruling and/or granting a temporary stay on the general public's perception of the judicial system as well as on the class of plaintiffs and class of defendants judges, all resident of Alabama. While the 11th Circuit and the Supremes oked lifting of the stay in Searcy v Strange, that was well before March 3 when the AL Supreme ruled on Ex parte Alabama. She would also likely look at the status of the other five cases in the state, all being held 'en suspens'. http://www.al.com/news/index.ssf/2015/04/gay_marr… She is particularly aware that the merits of Searcy is similarly frozen at the 11th Circuit pending the outcome of the Supreme Court. Whatever her decision in Strawser v Strange, she knows it will be appealed on merits and even on stay. Do you really think that between now and when the Obergefell v Hodges decision is announced, if the stay is oked to be lifted at the Circuit Court and if that decision is appealed to the US Supreme, going first Justice Thomas and perhaps all of the Court, the Supremes would be free/willing to deal with that petition? Recall how angry Georgia born 'Justice Clarence' was on February 8th. The Judge would also be aware of the bind in which she could be placing the 67 county probate judges, knowing how difficult it previously had been to get 51 to buy in. YUK! Wolf, it is easy to wax elegant about the maxim Justice delayed is Justice denied, but I think this lady, who has demonstrated the wisdom of Solomon, has a very heavy burden to lift – at what cost. As learnt during the 21 days before March 3, there remain a lot of agendas at play in that state. Confront them now or in July when the fog has lifted. Who among us wants shit to hit the spewing fan while the Supreme Court is deliberating? Ray Stewart Moore for one would be in his glory! Re: the waiting thing, four days ago, she dismissed not only the position of the AG, Mobile Probate Judge and her putative class proxy Probate Judge from Baldwin Co, but sliced and diced the AL Supreme Court's decision by noting it has no bearing of the case before her, as none of the plaintiffs, potentially ALL same sex couples in Alabama wishing to be married, were party to that case. And by the way, her federal court had made the call on constitutionality FIRST. She also had the audacity to cite the AL Supreme Court's decision to refute both probate judges' argument on immunity. Way to go Ginny – aka Callie Virginia
3. FredDorner | April 27, 2015 at 12:24 pm

While I can see a good argument for waiting until after SCOTUS rules in June, my impression is that Granade isn't inclined to let the SCOTUS review of the 6th circuit cases interfere with due process in the 11th. However I wonder if the 11th Circuit's suspension of proceedings applies to this case?
4. mu2 | April 27, 2015 at 8:34 am

A tragic but somewhat ironic Alabama incident from the other day, a storm off their coast wreaked havoc on some 100 boats, killed several. I'm sorry for their demise but I can't help thinking of all the times assholes like Jerry Foulball and Pat ROBert$on have blamed us for deadly weather in places where SSM has been approved. Probably won't hear anything from the publicly loudmouth homophobes about that particular "act of god"…
5. 1grod | April 27, 2015 at 12:02 pm

Scottie: While I thought Judge Granade would find in favor of the class action (plaintiffs and defendants) as well as rule on merit in one judgment, you raised for us the possibility that this would be done in two moves. I like that inference. By deciding the class action first, particularly regarding the defendants, she would undermine the AL Supreme Court's mandamus decision. She could bide her time with the finding on merits. In doing so, this would make it much more difficult for Chief Judge Roy to order all probate judges to ignore the Supreme Court's decision in Obergefell v Hodges. Any and all counties would be open to civil suit if she then ruled on merit. Does Madame Justice play chess?
6. FredDorner | April 27, 2015 at 12:27 pm

So you're saying that she'd wait until after SCOTUS rules so that probate judges would have a binding order? That's interesting, and it would make the order comparable to US v Brittain of 1970.
7. 1grod | April 27, 2015 at 1:15 pm

Fred: The AL Supreme Court found that while Judge Grenada might speak for the Southern District Court, her decision could not bind the Middle or Northern District. They could, and to avoid confusion must. And, the actual scoped of her decision in Strawser was four couples. While their March 3 decision excluded Judge Davis, giving him an opportunity to address why he would not also be so bound, they subsequently bound Davis as well. Understanding a certain truth to their findings, on March 6, 2015, National Centre for Lesbian Right asked Judge Granade for (1) leave to file a second amended complaint naming additional plaintiffs and additional defendant, (2) certification of the federal case as a class action encompassing all same-sex couples and all county probate judges in the State of Alabama, and (3) an order and injunction directing all Alabama probate judges to issue marriage licenses to any otherwise qualified same-sex couple. I think Granade will address 1 and 2 soon and will rule on # 3 when the Supreme Court rules in Obergefell. Doing so would enable her to craft her decision more precisely. Ruling on # 3 now needlessly involves the Upper Level Courts. If she did not know that she would been in a fight on January 23, or on February 9 when the stay was lifted, she knows it now. IMO, Thomas and Scalia in their February 8 published decent invited the bigots in Alabama and Georgia to throw a span or two into the works.
8. Zack12 | April 27, 2015 at 12:38 pm

The whole thing is one big mess and given the fact the 11th Circuit isn't going to weigh in until SCOTUS does, I can see where she wants to take her time in making sure no funny business can happen once a ruling is handed down.
9. ReadLearn | April 27, 2015 at 12:40 pm

I think you are correct. She is waiting until after the SCOTUS ruling, because Alabama will still not comply.
10. flyerguy77 | April 27, 2015 at 2:22 pm

I suspect her to rule before June..
11. guitaristbl | April 27, 2015 at 1:09 pm

I agree with the other commenters. Granade has no reason to get into this now, SCOTUS will provide the last word and untie her hands and take her out of the difficult position to start a judicial war with the Alabama "supreme court" (always quotations since we are not talking about a court in anyway, much less a supreme one).
Tbh I expect the Alabama "supreme court" to cause trouble even after a possibly positive SCOTUS decision. Then it will get nasty..For them and Moore especially.

Anyway, moment of truth..In 18 hours oral arguments begin and we will most probably know where this will be going.
12. 1grod | April 27, 2015 at 7:45 pm

What to expect during oral arguments tomorrow: Ari Ezra Waldman http://www.towleroad.com/2015/04/scotuswaldman1.h…
13. F_Young | April 27, 2015 at 2:48 pm

Gay marriage rejected by Northern Ireland Stormont Assembly

http://www.belfasttelegraph.co.uk/news/general-el…
14. guitaristbl | April 27, 2015 at 3:03 pm

meh, no surprise there…The DUP is essentially a very slightly toned down version of the GOP (VERY slightly). As long as they control Stormont it's pointless to even try.
It will most probably take court action for marriage to come in NI.
15. JayJonson | April 28, 2015 at 6:26 am

The surprise is that the vote was so close: 47-49. I suspect that NI will soon get tired of being known as the land of bigots, especially if the Republic of Ireland votes in favor of marriage equality.
16. DeadHead | April 27, 2015 at 4:55 pm

SCOTUSBlog will be live blogging updates from the oral argument Tuesday morning beginning at 10:45 a.m. at http://live.scotusblog.com/Event/Live_blog_Oberge…
17. 1grod | April 27, 2015 at 6:27 pm

Beginning at 10:45 a.m. EDT, 7:45 am PDT
18. Iggy_Schiller | April 27, 2015 at 7:23 pm

Who will be there for the oral arguments? We could do an EoT meeting ^_^
19. scream4ever | April 28, 2015 at 3:27 am

I will be!
20. Zack12 | April 27, 2015 at 8:36 pm

I've seen several articles talking about how some fear the court split the baby.
Let's face it, even I have that fear to a small degree but as I've said before, the spliting the baby or going slow ship sailed last fall.
There really is no good way to put the in state bans back in place, it's all or nothing.
21. VIRick | April 27, 2015 at 9:06 pm

"…. it's all …."

Zack, the denial of certiorari in cases appealed by the states from the 4th, 7th, and 10th Circuits last October, and the subsequent denial of stays in additional cases appealed by other states from the 9th and 11th Circuits, has about doubled the number of states with marriage equality. That's the Supreme Court's own doing (with protests from Argle-Bargle and Clarabell), and the direction the majority on the court want all the circuits to rule.

We're only here where we are because Sutton and Cook in the 6th Circuit refused to read the memo.

Besides, the baby-splitting concept is already passé simply because it's untenable. Some argue that the baby is temporarily split in Missouri, Kansas, and Alabama, but in checking each, we soon discover that it's split in three different ways, with each state being unique, and with Kansas and Alabama directly contradicting each other. Still, that's not the Supreme Court's doing,– that's the local asshats performing their little hissy-fits without even reading each other's memos.
22. RnL2008 | April 27, 2015 at 11:52 pm

Hey Zack, if we DIDN'T worry a bit….we might set ourselves up for a split, but like Rick stated, SCOTUS has basically shown their hand on this issue and just because the idiots from the 6th opted to FORCE SCOTUS to rule on this issue instead of them, doesn't mean SCOTUS will split their ruling….the chaos and harm that would be done would come down on them and they simply AREN'T going to be blamed simply because Sutton and Cook are haters towards Gays and Lesbians.

I don't believe we will get a 7-2 ruling, but I do believe in a 5-4 ruling….but anything could happen, it's just not likely to go against us.
23. Zack12 | April 28, 2015 at 12:04 am

Indeed and in addition, the going slow approach has already gone out the window by the fact couples have been getting married in all of the states where the bans have been struck down.
It's pointless to put a genie back in the bottle once he's out.
Same with the marriage bans.
Putting them back in place with the going slow apporach at this point would create chaos.
24. RnL2008 | April 28, 2015 at 12:14 am

Oh Zack, I so much agree with you. If SCOTUS were to "SPLIT" the baby so to speak or rule against us, there will be so much chaos that the riots going on in Baltimore will look like child's play…….and it has always been my belief that SCOTUS takes personal rights and freedoms serious and rule on the side of personal rights. That's NOT always been the case in recent rulings, but it is one I believe will happen here.

I mean if SCOTUS was to uphold the ruling from the 6th…….those current states we have will try to utilize the ruling to overturn the other circuits ruling and that would be a mess SCOTUS would NOT take a chance on happening.
25. 1grod | April 28, 2015 at 5:30 am

Zack, of the 390,000 celebrated ssm, 60,000 couples resident in states with bans. There are 600,000 unmarried same-gender couples who will benefit from a favourable ruling. http://williamsinstitute.law.ucla.edu/research/ce… IMO, in the face of a mobile society that we North American are, it is unjust that marriages – contracted to signify permanency – can be in a State inflicted state of flux. Justice Kennedy in Windsor spoke of the unacceptability of a second-class marriage. What would he call the situation in Kansas – celebration but non-recognition. He also spoke of the impact on kids. What impact on a child's perception of an adult world is there to be aware that my parents who were married, aren't – well not where we live – and they are not divorced, they are still happily together. Try that on your teenager, who is looking for hypocrisy under every stone. Justice Scalia when your voting imagine any of your 28 grandchildren having to explain that contradiction of the status of their family. You would not wise it on them, so why is it so acceptable for the children of gays?
26. JayJonson | April 28, 2015 at 6:33 am

I do not think that the majority opinion will split the baby. There will be a 5-4 ruling authored by Kennedy and joined by the other 4 members of the Windsor majority declaring that the fundamental right of marriage includes the right of same-sex couples to wed.

However, I think that it is possible that Roberts and Alito might write an opinion that dissents in part and concurs in part. They will dissent from the majority opinion that same-sex marriage is a constitutional right, but they will concur in the majority's belief that the fourteenth amendment requires that valid marriages performed in one state must be recognized in other states.

Hence, on the question of whether the constitutional right to marriage includes same-sex couples, the vote will be 5-4; but on the second question of recognition, it may be 7-2.
27. wes228 | April 28, 2015 at 6:46 am

I don't even think that would happen. Both Roberts and Alito would have upheld the Defense of Marriage Act. How could they possibly square that logic? It does not violate Equal Protection/Due Process for the federal government to not recognize validly performed same-sex marriages, but it does when a state government does it?
28. JayJonson | April 28, 2015 at 8:02 am

They could do it on what they would describe as federalist grounds. If a state's decision to marry same-sex couples is valid, then other states must recognize that validity even if the Court says that federal principles mean that they can make their own decision as to what marriages will be performed in their state. I am not recommending this absurd twist in logic, but it is possible that someone like Roberts and Alito could buy it.
29. davepCA | April 27, 2015 at 9:44 pm

Setting my alarm clock a bit early so I can check in on EoT, SCOTUSblog and other sources starting bright & early. Tomorrow will be an historic day and I don't want to miss any of it! See you all here.
30. Raga | April 28, 2015 at 12:34 am

Reminder: http://www.supremecourt.gov/publicinfo/press/pres…
31. DeadHead | April 28, 2015 at 5:05 am

Raga are you in DC for the trial? I hope so but if you're not, I do hope you'll provide us with your analysis after you listen to the audio recording. Your analysis' are always wonderful to read, they rock!
32. Raga | April 28, 2015 at 6:34 am

Alas, I'm in India and busy. I'll listen to the audio for sure but it'll be hard for me to do anything more before the weekend 🙁
33. Sagesse | April 28, 2015 at 3:44 am

This is it folks. I am beyond snowed under at work, so will be catching up later in the week, but my thoughts are with everyone today.
34. Sagesse | April 28, 2015 at 3:49 am

There's this thing about faith… they say it's blind.

Republicans’ Gay-Marriage Hysteria [Daily Beast]

"Marriage equality is so overwhelmingly accepted, in fact, that a popular narrative among social conservatives is that those who remain opposed to gay marriage are being bullied and discriminated against by those who support it.

"But if you had been medically frozen in, say, 2003 and thawed out on Saturday at the Iowa Faith and Freedom Coalition Spring Kick-Off event, you would probably be under the impression that a clear victor of this particular culture war has yet to emerge.

"At the Point of Grace Church in Waukee, a Des Moines suburb, candidate after candidate (or likely-candidate) pledged support for a constitutional amendment that would overrule the Supreme Court’s decision and allow states to ban same-sex marriage again. (How this would work is not quite obvious.)"
http://www.thedailybeast.com/articles/2015/04/27/…
35. Sagesse | April 28, 2015 at 4:04 am

What people are saying:

Supreme Court Will Rule for Gay Marriage—But It Won’t Go Far Enough [Daily Beast]
http://www.thedailybeast.com/articles/2015/04/27/…

Lawyers Seek Sea Change on Gay Rights at Supreme Court [New York Times]
http://www.nytimes.com/2015/04/28/us/same-sex-mar…

Why Chief Justice John Roberts Might Support Gay Marriage [New York Times]
http://www.nytimes.com/2015/04/28/opinion/why-chi…
36. RemC_Chicago | April 28, 2015 at 4:44 am

SCOTTIE, we're proud that you get to witness this historic day and we are with you in spirit!
37. DeadHead | April 28, 2015 at 4:59 am

One of the news programs Sunday showed a brief clip of people sitting in the line. There was a guy in a wheelchair near the front of the line who looked like Scottie.
38. MichaelGrabow | April 28, 2015 at 7:04 am

**heart eyes**
http://joemygod.blogspot.com/2015/04/clinton-camp…
39. MichaelGrabow | April 28, 2015 at 7:37 am

After Ginsburg's Q, the Chief Justice went next. The petrs had said they were looking to "join the institution of marriage." The chief objected that perhaps they were not looking to redefine it, not join it. And he emphasized that he had looked up all the definitions he could find, and it was always a man and a woman

Justice Kennedy said he had "a word on his mind .. and that word is millennia"

He pointed out that the definition of marriage had prevailed for millennia and it seemed a fast change; on the other hand, he noted that the time between Lawrence and this case was about equal to the time between Brown and Loving — this raised the question for him of whether this might all be too fast to redefine such a long standing institution
40. palerobber | April 28, 2015 at 8:17 am

the "unchanging definition of marriage" should be a soft ball for plaintiffs' attorney's. look forward to hearing audio of their reply.
41. Tony MinasTirith | April 28, 2015 at 7:38 am

Live Video Coverage Outside the Supreme Court
http://www.c-span.org/video/?325472-3/coverage-su…

Live SCOTUSBLOG in 12 minutes http://live.scotusblog.com/Event/Live_blog_Oberge…
42. palerobber | April 28, 2015 at 8:17 am

could we get an open thread to comment on scotus oral arguments?
43. palerobber | April 28, 2015 at 8:30 am

"100 Scholars" amici brief:
"[…] even in ancient Greek and Roman societies, which encouraged same-sex intimate relations, marriage was limited to man-woman unions. Patterson:16-17,23-27; Oxford:902; Wardle(a):784-85."

SCOTUSBlog live blog:
"Justice Alito pointed out that Plato had written approvingly of homosexual relations, even thought the Greeks limited marriage to heterosexual couples."

who the hell cares – the ancient Greeks also held slaves and women as chattel.
44. palerobber | April 28, 2015 at 8:45 am

also it's apples to oranges…

when Plato wrote "approvingly of homosexual relations" in Symposium he was talking about relationships between male soldiers at war, not long term domestic unions between gay or lesbian partners.
45. 1grod | April 28, 2015 at 9:11 am

who the hell cares: Until you hear the discourse, perhaps it is premature to judge. Are these people on the bench out of touch with the upset and displacement of fellow American citizens by such hypocrisy as seen in Kansas where you can celebrate wedding in counties representing 83% of the state's population, but except for the Bureau of Records, the State refuses to recognize them. There are 13 states that are not equality states, four of them represented in the Court today. Is there any reality in the soft questions the Justices are apparently asking. It is they who brought 18/37 states into the equality fold . Let's hear serious not factuous questions about ancient Greeks.
46. palerobber | April 28, 2015 at 9:39 am

SCOTUSblog live blog:
"And [Roberts] emphasized that he had looked up all the definitions he could find, and it was always a man and a woman"

very odd – as if governments take their definitions of civil marriage from dicitonaries and not the other way around.
47. davepCA | April 28, 2015 at 9:46 am

I guess he didn't bother to check some 'obscure' sources like Websters Dictionary or the Oxford Dictionary, which both include reference to the fact the definition of 'marriage' includes same sex couples…..
48. Steve84 | April 28, 2015 at 11:35 am

Or read the Bible some time and notice all the polygamy

This nonsense is infuriating. There is simply no one, unchanging so-called "institution of marriage". It has always changed and the modern version is less than 150 years old. Even less when you include things like no-fault divorce.
49. DeadHead | April 28, 2015 at 11:44 am

I figure the polygamists will argue THEIR case under the "religious liberty/freedom" laws/acts.
50. davepCA | April 28, 2015 at 11:45 am

The change just a few decades ago, in which women no longer lost nearly all of their rights as autonomous citizens when they married, was a VERY significant change in what marriage was, what it did, how it worked, and all of the benefits and responsibilities that it conveyed, and yet it was still "marriage" after that change. The change to allow an addition group (same sex couples) to participate is a MUCH less significant change because it causes no changes to any of those things. Marriage still conveys the same rights, benefits and responsibilities that it did before same sex couples were legally marrying.
51. Steve84 | April 28, 2015 at 2:06 pm

Coverture was mostly abolished in the second half of the 19th century.
52. RnL2008 | April 28, 2015 at 11:27 am

Roberts OBVIOUSLY didn't do good research as there are times in history that Same-Sex marriage did take place like here: http://www.care2.com/causes/the-forgotten-history…
53. ChrysT17 | April 28, 2015 at 1:16 pm

I don't understand why the lawyers arguing for SSM (in this case and others) accept this fallacy and let it stand without rebuttal. It's a strong (sounding) argument for the anti side and refutable with a little anthropological research.
54. RnL2008 | April 28, 2015 at 1:20 pm

It's hard to explain why NO one uses it, when it has been out there….hell, even in Wikipedia they have stuff on the history of Same-Sex folks marrying……just type in Same-Sex marriage throughout history……and if nothing pops up….let me know and I'll provide the links!!!
55. Eric | April 28, 2015 at 1:47 pm

I'm not sure why it isn't clarified that many societies did have same-sex marriage, until their contact with the Abrahamic religions, then the persecution began and continues to this day.
56. RnL2008 | April 28, 2015 at 1:53 pm

I DON'T know either and for a man of Robert's education……ya can't tell me he is ILLITERATE regarding research!!!
57. palerobber | April 28, 2015 at 10:48 am

i notice the lawyer for Michigan enlists the speedy negative consequences of no fault divorce, yet other anti-marriage briefs claim we don't yet know the consequences of gay marriage 11 years after Goodridge.
58. palerobber | April 28, 2015 at 11:26 am

petitioners' lawyer on Q2 got the US age of consent range wrong (it's 16-18, not 13-18). so he's left trying to explain, pointlessly, why a state should be able to non-recogzine a 13 year old's marriage from another state.
59. Tony MinasTirith | April 28, 2015 at 9:17 am

Audio from the first argument already posted!
http://www.supremecourt.gov/oral_arguments/audio/…

Interestingly, this time around the recorded audio streams as soon as the page is loaded.
This time the file downloaded in less than 30 seconds, as opposed to last time when it took all day.
60. SWB1987 | April 28, 2015 at 9:59 am

Ugh mary bonauto wasn't my first choice
61. 1grod | April 28, 2015 at 11:44 am

SWB: help me understand what in Ms Bonauto's delivery invited the justices to give her such a ruff yet superficial time. John Bursch was given an equally hard time, but he should a remarkable disregard for the Supremes, frequently discounting the effort of individual judge's to summarize his viewpoints. Also help me understand why immediately articulate Donald Verrilli was able to establish a rapport..
62. RnL2008 | April 28, 2015 at 11:56 am

I agree with ya 1grod…….the Justices are definitely giving the attorney for the proponent or anti-gay lawyer……and he is just NOT answering their questions!!
63. RemC_Chicago | April 28, 2015 at 12:11 pm

Her rebuttal to the State was masterful (sorry about the direct cut & paste but I don't have time to completely re-write):

MS. BONAUTO: First, I just want to say that
8 the idea that the ideas of marriage will change is a
9 false dichotomy. Right now, differentsex couples can
10 choose to marry and rear children. They can choose to
11 marry at 70 or 90 because of their commitment to one
12 other. We honor both marriages. It is only samesex
13 couples who are foreclosed from marrying under either
14 vision.
15 Second, we agree that these restrictions
16 are, in fact, linked to gender. There's official
17 classification here, and they are sex linked in an
18 additional way, and that is ideas about what is a proper
19 relationship for a man to have, a real man or a real
20 woman, and that is obviously not with a person of the
21 same sex.
22 I hear that Michigan loves adoption, and, in
23 fact, Michigan has placed intensely vulnerable children
24 with these petitioners who have nurtured them to a
25 healthy childhood. Does Michigan deny the marriage
1 because they didn't conceive those children together,
2 when Michigan would let other adoptive parents who are a
3 differentsex couple marry? No. Michigan is drawing a
4 line because it does not approve of the adult
5 relationship, no matter what the protestations they
6 follow.
7 Next, we hear a line it's not disrespectful
8 because it's drawn based on biology. I have to say one
9 casualty of the marriage litigation is an impoverished
10 view of what is marriage and what is the role of
11 biological procreation. The State's entire premise here
12 is that if samesex couples marry, then differentsex
13 couples won't and have their children in a marriage.
14 Those two could not be further apart. People make their
15 own decisions. It is beyond attenuated.
16 And the idea also that there are other
17 people who raise children and good for them, it's
18 something, of course, that I hope policymakers would
19 support. But it's adult relationships that we're
20 talking about at the foundation here are different adult
21 relationships, and telling samesex couples who have
22 made that commitment to one another and have committed
23 to raising children that they can't is what is
24 stigmatizing.
25 And then, if I may, my my last point is
1 that the only way I can really understand Michigan's
2 points about procreation and biology and so on is when I
3 look, for example, at page 31 of their brief. And they
4 say that what they care about is people who have
5 children together staying together and providing a
6 longterm, stable situation for their children.
7 That interest applies full force in this
8 context, because by denying marriage to samesex
9 couples, you are denying not only the protection for the
10 adults, which is independently important, you are
11 denying those protections and that security that would
12 come from having married parents.
64. SWB1987 | April 28, 2015 at 10:25 am

Is it me or is the anti gay marriage attorney sound gay?
65. palerobber | April 28, 2015 at 10:49 am

all i hear in his voice is prick.
66. DeadHead | April 28, 2015 at 11:46 am

He sounded like both, a gay prick.
67. RnL2008 | April 28, 2015 at 12:34 pm

That's funny…….lol <3
68. RemC_Chicago | April 28, 2015 at 11:37 am

Loved this, From the Dept of Justice's defense (cut and past from transcript):

1 understand that if this Court concludes that this [ME] issue
2 should be left to the political process, what the Court
3 will be saying is that the demeaning, secondclass
4 status that gay and lesbian couples now inhabit in in
5 States that do not provide for marriage is consistent
6 with the equal protection of the laws. That is not a
7 wait and see. That is a validation.
69. RemC_Chicago | April 28, 2015 at 11:43 am

One of the moments when you want to give Scalia a piece of your mind:

JUSTICE SCALIA: All of the evidence [about the rearing of children by same-sex parents] shows
12 there's not a problem.
13 GENERAL VERRILLI: I I think all of the
14 leading organizations that have filed briefs have said
15 to you that there is a consensus in that, and
16 JUSTICE SCALIA: Well, I think some of
17 the some of the briefs contradicted that.
NOTE TO SCALIA: ABOSULTELY NONE OF THE RELIABLE, PROFESSIONAL, AUTHORIZED EXPERTS AND ASSOCIATIONS CONTRADICT THIS. READ JUDGE FRIEDMAN'S RULING FROM MICHIGAN.
70. RnL2008 | April 28, 2015 at 11:47 am

Folks, if people AREN'T marrying for love and commitment……why would they marry just for having sex? Please, we ALL can have sex WITHOUT marriage……people marry regardless of sexual orientation for the same reasons, commitment, love taking care of that person, being responsible for another life………and yet, these anti-gay folks just DON'T get it!!
71. sfbob | April 28, 2015 at 12:55 pm

People not infrequently marry for reasons other than love, but "in order to have sex" isn't one of those other reasons. Back before the Affordable Care Act my college girlfriend (yeah, I did play the other side of the fence just once when I was young) married her boyfriend merely so he would be able to be covered by her insurance. They wouldn't have bothered to get married otherwise and they were very clear about that.
72. RnL2008 | April 28, 2015 at 1:00 pm

That should be one's decision on why, who and how they marry, NOT the State setting specific gender restrictions as they do now.

It is NOT my business nor the state's business on why two people opt to marry. In fact heterosexuals have been marrying to help immigrants get their green card and for other reasons like taxes…..no one get's to tell these folks who they can marry or why….YET, when it comes to our marriages and our right to marry….these folks think they have a right to tell us we DON'T have that right, that a fundamental right goes away simply because the choice of a spouse is someone of the same gender as myself……that's NOT a right, but a "SPECIAL" privilege in my opinion!!!
73. RemC_Chicago | April 28, 2015 at 12:07 pm

Oops. The State Lawyer has an unfortunate slip of the tongue:

MR. BURSCH: But that's why you're drawing
11 distinctions based on sexual orientation in these laws.
12 Oh, gosh, no, because the the State doesn't care
13 about your sexual orientation. What the State cares
14 about is that biological reality.
74. RnL2008 | April 28, 2015 at 12:21 pm

Here is an article regarding oral arguments: http://www.reuters.com/article/2015/04/28/us-usa-…
75. tigris26 | April 28, 2015 at 1:04 pm

Thanks for the link! I like this article much more than some of the others that have been popping up.

While predicting the outcome is a little more gray at this point than we original were thinking, Justice Kennedy is still holding strong to his belief in the dignity and well-being of same-sex couples and their children.

Kennedy certainly seemed to join the liberal Justices in piling on the questions to Mr. Bursch.
76. RnL2008 | April 28, 2015 at 1:07 pm

You're welcome…..now I'm listening to the argument on the 2nd question and I feel a bit better here, and I still don't believe SCOTUS is going to continue to all this mess to go on and to rule in favor of question 1 for the States, but rule in our favor on question 2 will truly make a CATASTROPHIC mess that will take decades to clean up if that will even be possible.
77. tigris26 | April 28, 2015 at 1:56 pm

Yeah, I know what you mean. When I first started tuning into SCOTUSblog this morning and heard Kennedy talking about the "millennia" thing, my heart dropped to my stomach. But then Kennedy did add at the end of that statement how he definitely recognizes how the same amount of time has passed between Lawrence and this case that did between Brown and Loving. So, he can understand how significant change can happen just within a little over a decade's time.

Also, I noticed on SCOTUSblog how people were asking the blog observers who were reporting from the court room if a "split-the-baby" ruling was a possibility. The blog observers replied that while it was a possibility, it seems very unlikely.
In particular, even though Kennedy still appears to be grappling with keeping both his deep love of gay rights and his affinity to the states, he was not terribly interested in the second question. He basically said there was no point to question 2 if the answer is "yes" to question 1. This is the other reason I still feel optimistic in Kennedy leaning towards supporting the plaintiffs. I am still optimistic for at least a 5-4 ruling in favor of marriage equality. Justice Roberts was hard to read at times even. He could still surprise us…

I'm sure Kennedy is aware of the mess it would cause by recognizing "out-of-state" marriages but not making the states themselves give out marriage licenses. That whole path is just bizarre and stupid, in my opinion. That opinion is shared by a lot of observers too, so I agree with the people from SCOTUSblog that a "split-the-baby" decision is unlikely.
78. RnL2008 | April 28, 2015 at 2:07 pm

I would agree with you as well and one thing I have learned over the last few years is sometimes what happens in oral arguments DOESN'T actually mean how SCOTUS will rule at the end of the day.

Here is a scenario that has crossed my mind and it goes back to the lack of Standing in the Prop 8 ruling. On question 1, it is possible that Justice Kennedy could rule with Justice Scalia, Justice Thomas and Justice Alito based on his comments in the Windsor ruling, BUT and it's a huge but, if that happens…I see Chief Justice Roberts POSSIBLY siding with Justice Bryer, Kagan, Ginsburg and Sotomayor……but again, that's just a scenario I'm thinking is a slim possibility.

With regards to Question 2……that appears to be a ruling in our favor and it could be 6-3 ruling, but it would be totally irrelevant if question 1 goes in our favor!!!
79. tigris26 | April 28, 2015 at 2:25 pm

Yeah, it would be a very very slim possibility of Roberts joining Breyer, Kagan, Ginsburg, and Sotomayor WITHOUT Kennedy. Now, if Kennedy joins the liberal Justices (on Q1) like he's still looking like he might do, then I can see Roberts possibly wanting to be a part of that majority – making it a 6-3 in our favor.

However, my bet is more on a 5-4 ruling in our favor with Kennedy being the swing vote as he always is. Even after today's arguments, I still can't see Kennedy being swayed away from his passion for the dignity of same-sex couples and their children.

I am curious how the ruling will be broken down in June. Will is be spilt into a ruling for Q1 and a ruling for Q2? Or is it to be just one single ruling?
Either way, it's going to be a nail-biting two months!!
80. RnL2008 | April 28, 2015 at 2:27 pm

I agree, now that oral arguments are done….now the waiting truly begins!!!