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Both sides face skepticism from Justices on marriage equality – Part 2

LGBT Legal Cases Marriage equality Marriage Equality Trials

Associate Justice Antonin Scalia. Attribution: Wikipedia
Associate Justice Antonin Scalia. Attribution: Wikipedia
After a short break, the Justices resumed arguments in the same-sex marriage cases. The second question was whether states can refuse to recognize legally valid same-sex marriages performed outside of of the state.

Douglas Hallward-Driemeier, an experienced appellate lawyer, argued for the same-sex couples. He initially faced skepticism from Justice Scalia, who said that states might have an institution of just opposite-sex marriage, so they shouldn’t be required to recognize same-sex marriages that were performed outside of the state. However, Justice Scalia’s skepticism didn’t seem to last long: he appeared to be much more welcoming to the idea that the Constitution’s Full Faith and Credit Clause may affect a state’s decision to withhold recognition of a marriage. He asked if New York can say that it will only recognize marriages performed in New York. But then, at a different point, he appeared to believe that the existence of same-sex marriage could harm opposite-sex marriage.

Tennessee’s solicitor general Joseph Whalen faced questions from Justices Breyer and Sotomayor as well as Chief Justice Roberts: can a state refuse to recognize marriages performed by federal judges? Isn’t there no fundamental difference between granting marriage licenses to same-sex couples and recognizing their marriages? How long has it been since Tennessee has refused to recognize an opposite-sex marriage? (1970, he said.)

Whalen argued a ruling in favor of recognition would impact a state’s ability to self-govern, and that pronouns and terms would have to change. Justice Sotomayor responded that states already change terms and pronouns in the context of adoption.

Whalen’s main thrust was that the democratic process and our “federal structure” should be allowed to address the issue, and the courts shouldn’t decide.

On rebuttal, Hallward-Driemeyer suggested that any gay or lesbian person in the military will eventually be stationed in a state that refuses to recognize his or her marriage.

It’s not completely clear how the Justices will rule. They could, of course, decide one issue one way, and another the opposite way. They could for example think that states should recognize existing same-sex marriages, but they shouldn’t have to perform them. But it seems clear, and Whalen conceded, that if the same-sex couples win on Question 1, they’d win on Question 2 as well.

Justice Kennedy, often considered the deciding vote in gay rights cases, only asked one question during arguments over the recognition issue, and it wasn’t a consequential one. But Chief Justice Roberts and Justice Scalia didn’t seem fully convinced, at least, that the recognition bans are valid.

It’s even more questionable how the issue of licensing marriages will be reserved. Justice Kennedy at one point seemed hung up on the fact that marriage has been opposite-sex for a millenia, but he also appeared to be empathetic toward the children and military spouses affected by the bans.

Chief Justice Roberts, who voted to uphold Section 3 of the federal Defense of Marriage Act (DOMA), was widely considered to be a potential vote in favor of licensing same-sex marriage. However, his questions appeared to be geared toward convincing other Justices to let the states work out the issue. He didn’t seem completely convinced that the couples should lose, and he didn’t give away a definitive position, but his questions and comments indicated that he’s not entirely sure that striking down the bans would be good.

It wouldn’t be surprising to see a 5-4 or 6-3 decision in favor of marriage equality, but it also wouldn’t be surprising if the Court decides to only strike down the recognition bans.

A decision is expected by late June.


  • 1. davepCA  |  April 28, 2015 at 1:39 pm

    …For anyone feeling frustrated by the fact that we can't actually WATCH the oral arguments, I thought now may be a good opportunity to re-post this link to what John Oliver suggests should be done to address this. Enjoy.

  • 2. David_Midvale_UT  |  April 28, 2015 at 2:25 pm

    They don't want the cameras to catch anyone rolling their eyes or looking bored. . . or, heavens forbid, falling . . . umm. . . let's not go there. (wink)

  • 3. David_Midvale_UT  |  April 28, 2015 at 2:32 pm

    Video. . . R O F L

  • 4. 1grod  |  April 28, 2015 at 2:30 pm

    Ari Ezra Waldman makes interesting observation re Question 2…. Both the oral and written transcript may also shed light, but the observation noted here about the questions asked [or not] and the judges' reaction to the lawyers is also quite telling.

  • 5. 1grod  |  April 28, 2015 at 5:55 pm

    Andrew Hamm provides links to a range on commentators on Obergefell v Hodges – great resource.:

  • 6. A_Jayne  |  April 28, 2015 at 7:17 pm

    Towleroad is difficult for me to read – the white type on black background plays havoc with my old eyes. And the (apparently) less-than-usual width of my screen means their buttons to social media pages cover the left side of the text, leaving a very short (height-wise) window in which I can try to read things. I usually don't bother.

  • 7. SteveThomas1  |  April 28, 2015 at 3:23 pm

    I confess to feeling just a tad sorry for the Tennessee guy: just a tad, since he is on entirely the wrong side. But of all the advocates, he was the one who seemed to have lost his way. You could practically hear his nervousness on the audio, and he seemed often to be repeating things he had memorized which weren't quite responsive to the questions he was asked.

  • 8. Rick55845  |  April 28, 2015 at 3:53 pm

    Me too. He failed. Good for us. Good for society. Bad for him. His kids (if he has or ever will have any) will be shamed. (Just kidding)

  • 9. Rick55845  |  April 28, 2015 at 3:56 pm

    OK, I don't feel that bad about the oral arguments. That is to say, I haven't lost any confidence that we will win this thing in the end. But speaking of ends, now that we've had the oral arguments, does anyone know when the anal arguments will be scheduled? Oral can be very nuanced, hard to do really well. But on the anal side, I know we will pound the State's ass!

  • 10. VIRick  |  April 28, 2015 at 8:46 pm

    "…. does anyone know when the anal arguments will be scheduled?"

    Rick, let us know when you find out. LOL

  • 11. jcmeiners  |  April 29, 2015 at 7:05 am

    And I always thought the anal arguments are in the briefs.

  • 12. VIRick  |  April 29, 2015 at 2:36 pm

    That's Clarence Thomas' approach.

  • 13. Mike_Baltimore  |  April 29, 2015 at 4:48 pm

    I think this is one reason almost all reports from SCOTUS by knowledgeable reporters after oral arguments (of any case) include the phrases 'my reading of the tea leaves' or 'my reading of the chicken entrails'. They know the oral arguments can give a misleading picture.

    One must look at the ENTIRE picture (the trial court's decision and the explanation [if given], the appellate court's decision and reasons, the briefs, etc., in addition to the oral arguments. If one just looks at the plaintiffs or defendants briefs, one can get a viewpoint much different than reality.

  • 14. RQO  |  April 28, 2015 at 4:32 pm

    !st – thanks Scottie for the reporting.
    Well, now we wait a couple months. Rose pointed out chaos if they rule against ME. The more I think about it, the more I agree. I don't think that will escape the Justices, but neither do I think that would sway them (they have security details and a pension). Interesting me most is what The RATS will put down in writing as their legacy. Something along the lines of brown people should sit in the balcony and pee in a different urinal? Kennedy is worried about the "millennia" . I guess he should be, that's how old he and most of these farts are (or act). I am 60 and eschew "social media". I, living in gun-happy exurbia, am as Abe Simpson "out-of-touch- get off my lawn" " as I can get. But an anti-ME ruling will be prima facia argument for a mandatory retirement age.

  • 15. mjnichol  |  April 28, 2015 at 5:26 pm

    I don't think Kennedy would have struck down the Federal DOMA if he thought the fact that marriages have been opposite-sex for "millenia" was that important a consideration relative to things like "dignity".

    I'm not sure why anyone thinks that the case will turn out any other way than in our favor. Kennedy's position on gay rights is clear, and the courts signals on rejecting stays in several states is also clear.

    Kennedy won't end his gay-rights legacy by rejecting the most important gay rights case that will ever be heard by the court. He bristles at the thought of being "inconsistent" in his opinions. Plus, what kind of legal chaos would be unleashed on the non-stayed states?

    I've heard zero convincing reasons as to why Kennedy will not rule in our favor. Playing both sides during oral arguments is no evidence at all.

  • 16. bayareajohn  |  April 29, 2015 at 1:10 am

    The response to the "millennia" comment should have been:
    "If we wait another millennia to consider a change, the new argument against it will be that it's been this way for TWO millennia…"

  • 17. DeadHead  |  April 28, 2015 at 6:19 pm

    Scottie did you take any pictures of your trip to Washington DC to share with all of us here on EoT? What were the crowds outside like? Were you able to meet with other people who live there and use this EoT board?

  • 18. 1grod  |  April 28, 2015 at 6:21 pm

    If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v.
    Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart.
    p 56 Martha Daughtry dissenting
    Baker was central to J.Sutton and D. Cook's finding in the cases today being heard under Obergefell v Hodges. How important was Nelson to the consolidated case today? Question 1: "it's also in the 1970s that the Baker case from Minnesota reached this Court " page 9; Question 2 not mentioned. What did we learn today about Judge Sutton's statement: 'The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves'. ZIP p18:
    PERHAPS the 5th, 8th and 11th Circuit Appeals Courts should take note of the way the USA Supremes – at Oral Argument – dealt with Jeff and Deb's assumptions.

  • 19. ianbirmingham  |  April 28, 2015 at 7:08 pm

    In the previous thread and this one, I'm posting my excerpts of what I think to be the important parts of the two transcripts. I'll come back later to discuss the significance of specific points.

    Scalia (page 5): … let's say someone gets married in a — in a country that permits polygamy. Does a State have to acknowledge that marriage?

    Hallward-Driemeier: Well, of course, the State could assert justifications for not doing so, and I think there would be justifications for not recognizing such —

    Scalia: — what would the justification be? That it's contrary to the State's public policy, I assume; right?

    Hallward-Driemeier: Well, no, Your Honor. I think that the justification would be that the State doesn't have such an institution. The — a polygamous relationship would raise all kinds of questions that the State's marriage laws don't address. … the point I'm making, Your Honor, I think is demonstrated by what has happened in those States where, by court order, States have had to permit same-sex couples to marry. All that has happened under their laws is that they have had to remove gender-specific language and substitute it with gender-neutral language. … plural relationships raise all manner of questions that are not addressed by this State's current marriage laws.

    Alito: What if it's not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry. Would a State — would another State be obligated to recognize that marriage?

    Hallward-Driemeier: I — I think probably not. But the State would have, in that instance, a sufficiently important interest in protecting the true consent of the married person. And — and most States don't recognize minors' ability to consent, certainly not to something that is as important as marriage. But what we see, in fact, is that, quite in contrast to the non-recognition laws at issue here, the States do recognize the marriages of persons who, by age, would not have been able to marry within their own States. That is the long-standing practice of all of the States, precisely because of the abomination, as it was referred to in the old treatises, of the notion that a — persons could have a different marital state in some jurisdictions than others.

    Sotomayor: Sir, how about the consanguinity situation? Virtually all states would recognize cousins through marriage getting married, but there's at least one state that doesn't; right? Are you saying that that State is —

    Hallward-Driemeier: I think that — that the constitutional test is the one that the Court set forth in Zablocki, which is does the State have a sufficiently important interest not to recognize it? And certainly in the case of incest, the State does have a sufficiently important interest.

    Sotomayor: This is not incest. They're not biologically tied.

    Hallward-Driemeier: Well, the States that I'm aware of that have the rules against cousin marriage do so under their incest statutes, and they simply define incest in a broad way that would encompass cousins who want to marry. At some point, certainly the familial relationship is so attenuated that I don't think the State would have a sufficiently important justification.

  • 20. ianbirmingham  |  April 28, 2015 at 7:09 pm

    Continued from Part 1…

    Ginsburg (page 11): May we clear this one thing. If the Petitioner prevails in the first case [question], then the argument [over Question 2] is moot; right?

    Hallward-Driemeier: That's — that's absolutely right, Your Honor. … the three States that have this issue, Tennessee, Ohio, and Kentucky, are, between them, able to identify only 5 instances in which they did not recognize a marriage that was valid outside the State, even though it could not have been celebrated inside. And those instances are incest, which we think the State would have sufficiently important justification to not recognize, miscegenation laws, not a precedent on which I think the Court would want to rely on in this instance, or other interests that I think probably would not survive today, such as the — the rule against allowing a divorced person to remarry. So they're — and — and more importantly, the most recent of those cases is from 1970. … We know from Windsor, because the Court held, that once married, a couple has a constitutionally protected liberty interest in their marriage. We also know from Windsor that where a — a sovereign disregards that marriage in a way that would be extraordinary and out of character with tradition, that that requires, at the very least, careful consideration. And that's what we have here.

    Alito (page 18): At the present time, what is the next most dramatic variation in the marriage laws of the States?

    Hallward-Driemeier: It probably is age.

    Alito: And what is the — what — what's the range?

    Hallward-Driemeier: The — the — I think it goes from 13 to 18. … the tradition of the States is to recognize a marriage that was entered into by someone of an age that could not have been entered within the State, because of the nature of the marriage once it's established, recognizing that the fundamental nature of that relationship is not one that the State should put asunder.

    Alito: Well, I thought you answered me earlier that a State could refuse to recognize a marriage in — contracted in another State where the minimum age was puberty.

    Hallward-Driemeier: Well, they — they could, and I do believe that if, in the individual case, it was shown that it was because of lack of consent, the — the State could decide not to recognize the marriage. But with respect to the categorical nature —

    Ginsburg: It would have to be shown, I think, the presumption would be in such a State that someone age 13 can't consent.

    Hallward-Driemeier: The age 13, I think probably you're right, but if it is a matter of 15 instead of 16, that the courts probably would recognize it, especially if, in reliance on their marriage, the — the couple had already conceived a child, it would do no one any good to destroy that marriage and the stable environment that it might provide for the children, just as it does no one any good — it certainly doesn't advance the interests of the children of opposite-sex couples to destroy the marriages that provide stability to the children of same-sex couples who are already married under the laws of other States.

    Hallward-Driemeier (page 24): … In the corporate context, once a corporation is established under the laws of one State, that corporation exists in all other States. Certainly, the families that our Petitioners have established are entitled to at least that same respect.

    Scalia (page 26): What about Article IV? I'm so glad to be able to quote a portion of the Constitution that actually seems to be relevant. "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Now, why doesn't that apply?

    Whalen: Your Honor, this Court's cases have made clear that the Court draws a distinction between judgements between States and the laws of each State. And the reason in part that the Court's decisions have said that is that otherwise, each State would be able to essentially legislate for every other state.

    Scalia: Public acts? It would include the act of marrying people, I assume.

  • 21. ianbirmingham  |  April 28, 2015 at 7:11 pm

    Continued from Part 2…

    Whalen: My understanding of this Court's decisions as the reference in the Constitution to public acts is that [it refers to] each State's laws.

    Scalia: So there — there's nothing in the Constitution that requires a State to acknowledge even those marriages in other States that — that are the same.

    Whalen: That's essentially correct, Your Honor.

    Scalia: Really?

    Whalen: Under this Court's decisions, that's — that's essentially right. There has been under the jurisprudence with regard to Allstate Insurance and Alaska Packers and so forth that there's — there's a minimal due process requirement to decline to apply another State's substantive law.

    Scalia: We — we can say the only marriages we acknowledge in — in New York are marriages concluded in New York; is that possible?

    Whalen: Yes, Your Honor.

    Scalia: Really?

    Roberts: What case is that? What case would you cite to support that proposition?

    Whalen: I'm not sure if I understood the question correctly, Your Honor.

    Breyer: He said — I mean, I already have several cases to read. I might as well get another one. (Laughter) What — what is the case that holds that the State of New York has the right to recognize only marriages made in New York? And when — if you marry in Virginia, New York has the constitutional right to say, we treat you as if you weren't married, whoever you are.

    Whalen: I did misunderstand the question. My understanding of the question was whether New York could decline to recognize an out-of-state marriage that did not comport with New York's law.

    Scalia: That's not what I said.

    Ginsburg: Because it is clear that if the law of the two States is the same, that was used against Fedder, the State cannot say we won't apply the other State's law, even though it's the same as our own.

    Whalen: My — my answer is based on essentially this Court's decision in Nevada v. Hall, because the State's own law sets its own policy and the other State's law would be in conflict with that State's policy.

    Scalia: But none of this has anything to do with Article IV, right? None of this has anything to do with Article IV? Full faith and credit, right?

    Whalen: It — full faith and credit provides the background for the — for the States to be able to assert that, indeed, we have the right to decline to recognize the out-of-state marriage based on the out-of-state —

    Ginsburg: You're making a distinction between judgements — full faith and credit applies to judgements. You can't reject a judgement from a sister State because you find it offensive to your policy, but full faith and credit has never been interpreted to apply to choice of law. That's the distinction.

    Whalen: Yes, Your Honor. And — and so, in — in essence, by deciding whether or not to recognize another State's marriage, the — the State is deciding whether or not to recognize the other State's law under which that marriage was performed.

    Sotomayor: You think marriage decrees are closer to laws than they are to judgements?

    Whalen: I do.

    Sotomayor: I mean, you need to get a judgement to divorce. And I think that, in my mind, that makes the decree much closer to a judgement than it does to a law.

    Whalen: … marriages have always been treated as a conflict of law matter throughout all the years — in fact, it — it gives rise to the entire conflict of law doctrine on — on which Petitioners rely here, which is Joseph Story's Commentaries — Commentaries on the Conflict of Laws.

  • 22. ianbirmingham  |  April 28, 2015 at 7:12 pm

    Continued from Part 3…

    Roberts: … outside of the present controversy, when was the last time Tennessee declined to recognize a marriage from out of state?

    Whalen: 1970 is the last one that I could point to. That involved a stepfather and stepdaughter.

    Roberts: … There have always been distinctions based on age and family relationship. So they weren't playing along under the same definition. And still, despite that, it apparently is quite rare for a State not to recognize an out-of-state marriage.

    Alito: … we have to assume that this first question has been decided against the Petitioner, or we wouldn't get to the second question. So we have to assume that we would hold that a State has a sufficient reason for limiting marriage to opposite-sex couples. And Mr. Hallward-Driemeier acknowledged that a State could refuse to recognize an out-of-state marriage if it has a very strong public policy against that marriage, if it's a polygamous marriage, if it's a — marriage of very young individuals. So the question is whether there could be something in between. … a sufficient reason to — for the State to say, we're not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state. I suppose that's possible, isn't it?

    Ginsburg (page 39): It is odd, isn't it, that a divorce does become the decree for the nation? A divorce with proper jurisdiction in one State must be recognized by every other State, but not the act of marriage.

    Sotomayor (page 42): Do you think that a State can fail to recognize the birth certificate of a particular — another State? Do you think the word "records" in the Constitution includes birth certificates?

    Whalen: Yes.

    Sotomayor: So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State's birth certificate?

    Whalen: I have to admit, Your Honor, I can't speak to that intelligently. … The reason I'm hesitant is that I know that there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for evidentiary purposes, or whether the effect of the record has to be acknowledged.

    Sotomayor: I recognize that's an issue. But if a birth certificate were to be a record, don't you think a marriage certificate — it's an official act of a State. As a record.

    Whalen: Well, the marriage certificate certifies the fact that there was a marriage.

    Kagan (page 44): You acknowledge that if the State loses on the first question, then the State also loses on the second question? It's a fortiori?

    Whalen: Yes, Your Honor.

  • 23. DrPatrick1  |  April 28, 2015 at 7:40 pm

    We will win on question 1, so don't worry.

    But what seems even clearer, is that in the event we lose on 1 we will win on 2. Just as Nevada's no fault divorce ushered in a new age in Divorce law, so too will having to recognize equality then force states to ultimately adopt equality.

  • 24. wes228  |  April 28, 2015 at 8:05 pm

    A win on only Question 2 would not necessarily be so neat and tidy. They could rule that the State of Ohio does not have a rational basis in refusing to add James Obergefell as John Arthur's surviving spouse on his death certificate. They could leave open the possibility that states would have a rational basis in refusing to recognize an out-of-state same-sex marriage as regards, for example, allowing a couple to adopt or file a joint income tax return.

  • 25. sfbob  |  April 28, 2015 at 10:34 pm

    However states would have a very hard time trying to justify recognizing a marriage for some purposes while refusing to recognize a marriage for others. Essentially this would do what Windsor implicitly prohibited: create two classes of civil marriage.

  • 26. 1grod  |  April 29, 2015 at 6:10 am

    Bob in Kansas, with counties representing 83% of the population granting licenses, an applicant being able to marry anywhere in the state, the Record Bureau is the only state department that acknowledges the celebration. For out-of-state celebrations and/or recognition, it would be non-recognition. So there are two classes of marriage: Recognized and Non-recognized marriages. This is the inanity there.

  • 27. sfbob  |  April 29, 2015 at 7:15 am

    Good point. Not sure whether you meant to type "inanity" or "insanity" but either one would seem equally appropriate.

  • 28. Raga  |  April 29, 2015 at 1:10 am

    Ohio's is not the only recognition case. The Tennessee case asks for full marriage recognition for their plaintiffs and the Court must answer that as well with a yes or no.

  • 29. SethInMaryland  |  April 28, 2015 at 8:00 pm

    Strange outcome i was wondering about , lets say we won q1 but lost q2 would it even matter about q2 ?

  • 30. wes228  |  April 28, 2015 at 8:07 pm

    While "Obergefell v. Hodges" is the name that all of these cases are generically referred to, it is still its own separate case which involves only the recognition issue. Obergefell v. Hodges is before the Court and they will have to address it. Although a win on Question 1 leaves them little wiggle room on Question 2. A win on Q1 necessitates a win on Q2, just not the other way around (we could lose Q1 but win Q2).

  • 31. SethInMaryland  |  April 28, 2015 at 8:13 pm

    So no,it wouldn't matter, winning q1 auto gives us on q2

  • 32. Mike_Baltimore  |  April 29, 2015 at 5:26 pm

    No, as states then would have to give all ME couples in the state a marriage application and/or license, but they would not have to recognize marriages from other states. This would cause, IMO, a serious problem for the states, as they would have to give a reason for ONLY recognizing not only marriages, but divorces, adoptions, etc., from their own state, but from no other. The states would probably lose, but it is not guaranteed.

    Thus a win on Question 1 is not an automatic win on Question 2. Probable, but not guaranteed.

  • 33. DrPatrick1  |  April 29, 2015 at 6:07 pm

    At the arguments, all agreed that a win on question 1 mooted question 2. If a state cannot have a constitutional reason for denying a license, they can't have a constitutional reason for ignoring a license. Thus, Scalia repeatedly asked Our to assume we lost question 1 when addressing question 2

  • 34. bayareajohn  |  April 29, 2015 at 6:59 pm

    Hard to imagine that the Court would leave things with an all-state requirement for ME but not clean up Q2. But what would a state even argue against recognition if they recognize their own? "Our gays are better than your gays"?

    Well, actually that makes as much sense as "Your gays make our straights have abortions."

  • 35. DrPatrick1  |  April 29, 2015 at 7:19 pm

    the exception to FFC is if it is against a state's public policy, but if they cannot have a constitutional public policy banning marriage, then they could not ignore the marriages of other states either. We needn't worry about 2, as we will win 1

  • 36. SethInMaryland  |  April 28, 2015 at 8:09 pm

    Another thing about q2 was that kennedy showed very little if any interest in q2 , that is very likely cause he is the 5th vote in q1

  • 37. wes228  |  April 28, 2015 at 8:34 pm

    Was there any mention of Baker? All this hullabaloo over Baker and it didn't seem like any Justice suggested issuing a ruling in light of Baker.

  • 38. SteveThomas1  |  April 28, 2015 at 8:37 pm

    One of the advocates in the 2013 cases tried to bring Baker up, and one of the Justices (can't remember which one) shot him down immediately. Serious advocates know that the Supreme Court is not even remotely interested in Baker.

  • 39. SethInMaryland  |  April 28, 2015 at 8:42 pm

    no it didn't come up

  • 40. A_Jayne  |  April 28, 2015 at 8:43 pm

    From the PropH8 hearing:

    JUSTICE GINSBURG: "Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny."

  • 41. 1grod  |  April 29, 2015 at 6:22 am

    Wes & Steve: In Question 1 – in providing a background, transcript (p 9, line 20) there is a reference as a fact that it had been in from of this Court given by Mary Bonauto. Question 2 nothing. Six Circuit's Sutton and Cook make much about not presuming to know the mind of the Supreme Court, while same panel judge Martha Daughtrey calls Baker v Nelson a dead letter, waiting for the moment when a stake can be put through its heart (p 59).

  • 42. SethInMaryland  |  April 28, 2015 at 8:39 pm

    I kinda wish higglebotom would now give kennedy some more amo by giving us the 5th ruling

  • 43. VIRick  |  April 28, 2015 at 8:56 pm

    "…. higglebotom …."

    Seth, I presume you mean Circuit Judge Patrick Higginbotham.

  • 44. SethInMaryland  |  April 28, 2015 at 9:11 pm

    Yea bad with names and my mind is not working well today due to i had to get quickly due to what is happening the city

  • 45. VIRick  |  April 29, 2015 at 12:28 am

    Seth, stay calm. I had to look up the judge's name myself.

    And yes, more importantly, we need the ruling from the 5th Circuit.

  • 46. 1grod  |  April 29, 2015 at 6:37 am

    Rick, until the ruling on Obergefell v Hodges, given the non-mention by any Judge of Baker v Nelson, IMO there will not be another ruling based on it as there was by Justices Sutton and Cook or Judge Juan M. Perez-Gimenez in Puerto Rico

  • 47. JayJonson  |  April 29, 2015 at 8:03 am

    I am afraid you give too much credit to the crazies to suggest that they will not cling to the only thing they have, which is Baker and the Sixth Circuit.

  • 48. 1grod  |  April 29, 2015 at 9:03 am

    Jay – good point. But when you consider the dialogue between Roberts and Verilli,about the 10 year impact of Lawrence on civic attitudes and the dialogue between Kennedy and Bonauto's exchange over how long the exhaustive discussions on the place of gay and lesbian people in our civil society, the significant of Baker v Nelson is treated in the same breath as Hawaii's Supreme Court indication that it would rule in favor of marriage equality; neither being given the time of day. In Prop 8's 2013 hearing before the Supremes, Justice R Ginsburg gave more time to it current relevance [same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much in Baker v. Nelson.".

  • 49. VIRick  |  April 29, 2015 at 12:52 pm

    "I am afraid you give too much credit to the crazies to suggest that they will not cling to the only thing they have, which is 'Baker' and the Sixth Circuit."

    Indeed, that's all the retrograde crazies have, which is why, as a defense, they keep bringing it up. But, "Baker v. Nelson" is a dead issue, killed off by more-recent developments, developments which the crazies attempt to ignore in order to reach their own pre-determined, bigoted decisions.

    Although most of the current focus is on the 6th Circuit ruling (and rightly so), I, like the administration in Puerto Rico, am more focussed on the equally dismal and idiotic decision rendered there, a decision which is no longer even being defended.

  • 50. Fogyreef  |  April 28, 2015 at 11:12 pm

    "Marriage" isn't about love.
    You can be in love and not be married.
    You can be married and not be in love.

    “Marriage" isn't about sex.
    You can have sex and not be married.
    You can be married and not have sex.

    "Marriage” isn't about morality.
    You can have morals and not be married.
    You can be married and have no morals.

    "Marriage" isn't about children.
    You can have children and not be married.
    You can be married and not have children.

    "Marriage" isn't about religion.
    You can be religious and not be married.
    You can be married and not be religious.

    "Marriage" isn't about tradition.
    You can be traditional and not be married.
    You can be married and not be traditional.

    "Marriage" isn't about happiness.
    You can be happy without being married.
    You can be married and not be happy.

    "Marriage" isn't about weddings ceremonies.
    You can hold a ceremony and not be married.
    You can be married with no ceremony.

    "Marriage" isn't about rings.
    You can wear rings without being married.
    You can be married without exchanging rings.

    "Marriage" isn't about vows.
    You can make vows without being married.
    You can be married without vows, only an affirmation; "I do".

    Supporters and non-supporters both need to learn what marriage ISN'T before trying to argue what it IS.

    Marriage is legally only about property, citizenship, kinship and inheritance. The marriage license is an application for State and Federal benefits granted a specific class of people and available equally as guaranteed by the Constitution. Any laws forbidding gay marriage are unconstitutional from their inception. Gay marriage has always been legal in the USA. It has been only the mood of the People preventing the indictment of the officials who acquiesce to the discrimination.

    Any discussions about marriage from a religious perspective are applicable only within the limited scope of that particular religion and carry no legal bearing. They are therefore moot in regards to the legality of marriage as it pertains to civil rights. All arguments about love, romance, reproduction, religious dogma, tradition and family values are CULTURAL MYTHOLOGY and are not related to the legal fiction called marriage.

    Spread the word. If you witness a news host, political pundit, radio host, written article or your Uncle Joe arguing against gay marriage for any reason other than the legality of the license granted by the State, it's up to you to contact them and call them on it, lest the debate be mired perpetually in the mud of ignorance and bigotry. Keep the debate on target.

  • 51. NorthernAspect  |  April 29, 2015 at 3:01 am

    Scalia voicing a modicum of potential support for the recognition question based on the Full Faith and Credit Clause was the biggest surprise for me of the oral arguments for Question 2.

    Although Scalia stating that the religious heckler was "refreshing" was very unsurprising, and ultimately unbecoming of the highest bench of the US.

  • 52. TomPHL  |  April 29, 2015 at 8:15 am

    I too was surprised that the Full Faith & Credit Cause was brought up by Scalia & forcefully expanded on by Sotomayer. I have always thought that this argument for the recognition issue had merit and had not been foreclosed by previous SC findings. I think we might do better than 5-4 on Q2.

  • 53. wes228  |  April 29, 2015 at 9:00 am

    If we lose on Question 1, there may be the possibility that they call for re-arguments on Question 2 because they would also need to resolve the matter of DOMA Sec. 2.

  • 54. A_Jayne  |  April 29, 2015 at 9:03 am

    The way the questions were phrased precludes another hearing on DOMA Sec.2 because if "The 14th Amendment requires states to recognize same-sex marriages performed in other states," then DOMA Sec. 2 is, by default, unconstitutional.

  • 55. wes228  |  April 29, 2015 at 9:08 am

    Scalia discussed Full Faith and Credit. The Constitution grants Congress authority to regulate full faith and credit between the states, so Congress also should be given an opportunity to defend the notion that allowing states to not recognize same-sex marriages does not violate equal protection.

  • 56. SteveThomas1  |  April 29, 2015 at 9:09 am

    DOMA Section 2 is still technically on the books, to be sure, but it doesn't really have any teeth. What business is it of Congress whether a state recognizes marriages performed in another state? If the failure to recognize violates a constitutional mandate, whatever Congress may say is irrelevant. And if the failure to recognize doesn't violate a constitutional mandate, what additional power is Congress imagining it's giving to the states? Recognizing marriages performed elsewhere is a state law matter, unless failure to recognize violates the US Constitution.

    There's also a question as to whether anyone would have standing to challenge Section 2. I rather doubt that there is.

  • 57. brchaz  |  April 29, 2015 at 10:07 am

    Scalia takes a very weak view of Full Faith & Credit and was not arguing in favor of a strongly enforceable recognition here. Scalia was simply using Full Faith & Credit as a bullfighter uses a red blanket – to taunt and enrage the hapless attorney standing before the Court.

  • 58. guitaristbl  |  April 29, 2015 at 7:34 am

    And after the 1st question, the 2nd one seemed like a breeze..A more experienced lawyer for our side, a mess of a lawyer for the other side and the 8 justices who can talk (not sure Thomas can actually..!) all seemed to various degrees sympathetic to the plaintiffs..
    I dare say that even if we do not win the first question (and even if we do for that matter), the 2nd question is certainly something more than 5-4 in my opinion.
    And I believe it is possible right ?
    DeBoer v. Snyder and Bourke v. Beshear can be decided with a 5-4 opinion in favour or against us.
    Obergefell v. Hodges and Tanco v. Haslam can be decided with as far as a 9-0 opinion (or an 8-1) in our favour.

    Scalia arguing in favour of recognition based on the full faith and credit clause (something I believe the plaintiffs' briefs were not pursuing and we had ruled out as a good way to get there as well around here) was interesting. Narrow but interesting.

  • 59. VIRick  |  April 29, 2015 at 2:43 pm

    "…. and the 8 justices who can talk (not sure Thomas can actually..!) …."

    Guitar, that's why we keep referring to him as Clarabell.

    Eons ago, for those who may not remember, Clarabell was the mute clown who was Buffalo Bob's side-kick on the "Howdy Doody" show.

  • 60. A_Jayne  |  April 29, 2015 at 2:49 pm

    He's a staunch believer in "Better to remain silent and be thought a fool than to speak and remove all doubt."

  • 61. JayJonson  |  April 29, 2015 at 8:11 am

    I also was surprised by the support for Question 2 from the RATS, but I suspect that it is part of a ploy to peel Kennedy off from the Windsor majority by giving him a victory on the issue of recognition. It was interesting that the first question Hallward-Driemeyer got was Roberts (or perhaps Alito, I can't distinguish their voices very well) expressing surprise at his brief because it spoke as much as about marriage equality as it did the recognition question. It was as though the RATS wanted somehow to isolate the two questions as though they were not related. I think they are trying to find a way limit the "damage" (from their perspective) and hope that they can tempt Kennedy with a half-win. I do not, however, think that Kennedy will defect as a result of this ploy.

  • 62. Zack12  |  April 29, 2015 at 8:28 am

    The only point Kennedy made during the second question was to bring up his earlier point about the gap of time between Lawrence and the cases they were hearing being the same as Brown and Loving.
    I think Kennedy knows there is no good way to split the baby on this one, it's all or nothing.

  • 63. StraightDave  |  April 29, 2015 at 8:36 am

    They don't need to give Kennedy anything on Q2. That one's already a done deal, easily. They have no bargaining leverage at all. Kennedy will never trade away his 5th vote on Q1 for 6 or 7 or even 9 on Q2. I think Q2 is in good shape for lots of reasons, which spread far wider than sexual orientation, which even some of the RATS seem to understand.

    But I do not agree with where everyone seemed to be leaning toward the end, that success on Q1 would make Q2 moot. That might be true for the class of people who live in TN, cross the border to NC, then go back home to TN to be recognized. All that would be unnecessary if TN married them at home in the first place.

    That scenario doesn't work for the class of people like the Tanco couple. They want their MA marriage, where they originally lived, recognized in TN. Q1 doesn't help them at all. They're not looking to get married in TN. It would only hypothetically help them if you required them to get get married for a 2nd time in TN, but that brings equal protection back into the picture. Why should they need to do something extra?

    Q2 will not go away and needs to be completely settled on it own merits.

  • 64. A_Jayne  |  April 29, 2015 at 8:49 am

    Re: "But I do not agree with where everyone seemed to be leaning toward the end, that success on Q1 would make Q2 moot."

    During oral arguments on Q2, the Justices themselves acknowledged that if Q1 is decided in favor of plaintiffs, then Q2 is moot. I understood that to mean, not that they will not (or will not need to) answer the question, but that if one is Constitutionally guaranteed, the other also is, by default.

  • 65. A_Jayne  |  April 29, 2015 at 8:51 am

    From the transcript of Q2:

    JUSTICE GINSBURG: "May we clear this one thing. If the Petitioner prevails in the first case, then the argument is moot; right?"

  • 66. StraightDave  |  April 29, 2015 at 12:27 pm

    Putting it that way, I'm more inclined to agree with you. I originally read it a differently.

    If this ends up being "You lost Q1 so your argument in Q2 is worthless. Therefore, you automatically lose that one, too", then I'm happy.

    There was more than one person mentioning Q2 mootness, so I didn't want it to just drop onto the floor and be forgotten about. It needs the same explicit smackdown, though that may be the easiest thing SCOTUS will have to do all year.

  • 67. VIRick  |  April 29, 2015 at 2:49 pm

    "It needs the same explicit smackdown, …."

    Yes, especially for the idiots running the non-recognition show in Kansas.

  • 68. guitaristbl  |  April 29, 2015 at 8:56 am

    Alito made his intentions towards that direction clear during the oral arguments for the 2nd question at 35:55 :

    "So there — there's a — a sufficient reason to — for the State to say, we're not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state.

    I suppose that's possible, isn't it?"

    Also you can listen to the audio and read the transcript at the same time in a dynamic format as it proceeds and see who is saying what at the same time on oyez :

  • 69. JayJonson  |  April 29, 2015 at 8:17 am

    We also need to recognize that what the RATS will describe as a "half-win" or compromise would actually be a major defeat for us. I.e., if we get only marriage recognition, we will lose many of the states that were won as a result of federal decisions. Ironically, we could now probably win marriage equality outright through referenda in at least two of the states that were at play at SCOTUS (Michigan and Ohio), but other states, such as Kansas, Utah, Oklahoma, Kentucky, Tennessee, South Carolina, Idaho, etc. we would lose. So we might wind up with about 25 states with marriage equality and 25 states without, becoming what Solicitor General Verrelli warned against: a house divided as we were under Jim Crow.

  • 70. Zack12  |  April 29, 2015 at 8:26 am

    Indeed, and it would be absurd to paint that as a victory.
    We are either one country or we're not.

  • 71. guitaristbl  |  April 29, 2015 at 9:00 am

    I don't think anybody said it would be a victory if we had an even unanimous decision on the 2nd question and a negative decision on the first one.

    But every analysis I have read says that ME advocates should come out of these oral arguments certain that they do not have a Roberts vote on question one and less certain than before that they have a Kennedy vote on the same question.

    For people who have presumably denied those petitions on October 6 (we assume that it was Roberts who did not provide the 4th vote to hear the cases), with all the effects that had, they asked some tough questions.

  • 72. Zack12  |  April 29, 2015 at 9:11 am

    It was always going to come down to Kennedy.
    Roberts was never going to be in our favor and despite a couple of his questions, I believe Kennedy will be the fifth vote for us.

  • 73. 1grod  |  April 29, 2015 at 9:50 am

    Is Justice Roberts supportive of J. Sutton's democratic process argument for good reason? NO, great article on why Americans are qualifiedly open to any/all processes.

  • 74. Rik_SD  |  April 29, 2015 at 9:53 am

    I can't get over this… WHY deny all those cert petitions if you plan to vote against us. Clearly Kennedy and Roberts voted to deny.. why do it? Letting the lower courts' decisions stand only to reverse course later just leads to chaos

  • 75. guitaristbl  |  April 29, 2015 at 10:26 am

    They may have thought that they can punt on the issue for another year or so that way without having to decide it. Many things could be true.

    I am currently leaning towards the "splitting" scenario myself as the one most likely to prevail. a unanimous (or nearly unanimous) reversal of the 6th circuit as of question 2 and a 5-4 decision on question 1, affirming the 6th.
    Is it the big victory expected ? Not at all, it definately means back to the ballot box unfortunately for the celebration issue.
    But that's what oral arguments showed most likely, a deeply divided court with a judge in the middle who has not made up his mind yet but seems very hesitant to proceed, despite the positive comments later.

    I may as well be wrong but I think the vast majority of equality activists are not as optimistic as they were before the oral arguments yesterday and with good reason.

  • 76. Zack12  |  April 29, 2015 at 10:43 am

    A ruling upholding the 6th will be a loss, period.
    Making us have to go to voters for our rights is an utter joke and means five to ten to twenty more years of fighting if not more.
    I'm sorry but we need to quit pretending that spliting the baby will be a victory, it sure as heck won't be.

  • 77. guitaristbl  |  April 29, 2015 at 10:54 am

    I do not disagree. I am saying what I predict.

  • 78. Zack12  |  April 29, 2015 at 10:56 am

    People are split but at the end of the day, many believe Kennedy will finish what he started.

  • 79. StraightDave  |  April 29, 2015 at 12:47 pm

    No Superbowls in NOLA, Dallas, Houston, or a financially-strapped Detroit will soften minds. Right now, I suspect some of the states are fighting more on principle to defend their "right to make laws" rather than the "rightness of those laws". Once their victory celebration is over, they can start to bemoan their pariah status.

    Anyway, I cannot imagine Kennedy willing to stare at the wreckage he will have caused, for literally the rest of his life. It would cancel out much of his prior good deeds. With the rest of the western world moving rapidly, he's not going to make a U-turn now. That is simply unfathomable.

    Maybe he would have preferred 2016/17, but that's not on the menu. Hopefully he realizes that by this time next year he will feel great about this and be hailed as a hero in most quarters.

  • 80. wes228  |  April 29, 2015 at 12:12 pm

    Keep in mind that a victory only on Question 2 may very likely result in an incredibly limited ruling: the State does not have a rational basis in not listing Obergefell as John Arthur's surviving spouse, not touching on whether a state may have a rational basis in not recognizing a same-sex marriage for the purpose of adoption, or filing a joint income tax, etc.

  • 81. JayJonson  |  April 29, 2015 at 11:15 am

    Rik_SD, we do NOT know that Roberts voted to deny. We only know that at least 5 justices voted to deny. We also know that at least 2 justices (Scalia and Thomas) dissented in the vote. But it is likely that the actual vote was 5-4. We have been through this before. Lots of news reports said that because only Scalia and Thomas made their votes known, it was a 7-2 vote, but that was simply stupid speculation on the part of reporters that do not as much about SCOTUS as they should.

    That being said, the fact that Kennedy almost certainly voted to deny those stays means that he is quite likely to vote for marriage equality.

  • 82. Rik_SD  |  April 29, 2015 at 11:22 am

    Well we don't know for sure, but it only takes 4 to grant cert and we know for sure that it was not Thomas or Scalia, so there can only have been at most one other in their camp.. and my gut says that is Alito…

  • 83. JayJonson  |  April 29, 2015 at 11:25 am

    It takes 5 votes to deny a stay. That is what we are talking about. It is pretty clear that those votes included the Windsor 5. It is in my view highly unlikely that Roberts or Alito joined them.

  • 84. Rik_SD  |  April 29, 2015 at 11:31 am

    No that's not what *I* was talking about. I was saying I do not understand why they would have voted to deny CERT on the 4th, 10th and 9th decisions.

  • 85. Zack12  |  April 29, 2015 at 11:38 am

    IMO to punt in the hopes they could delay nationwide equality.

  • 86. StraightDave  |  April 29, 2015 at 12:57 pm

    Yep, they delayed it by about 3 whole months. It was their only viable option, so they cynically took it. Sucks to be them.

    It meant that the first states fell sooner, but the final (and toughest) states fell later. Once the Circuits got into the game, the final answer was always going to be 2015.

  • 87. Decided_Voter  |  April 29, 2015 at 2:27 pm

    They may've also thought that was their best way to "slow-walk" it to try and get people more comfortable with it and see the sky is still in tact. It's working just as one would've hoped if that's the move they were playing on their chess board.

  • 88. JayJonson  |  April 30, 2015 at 6:25 am

    Or maybe even in the hopes that the Circuit courts would do the work for them and marriage equality would become the law of the land without SCOTUS taking a stand on it at all except to continue to deny cert.

  • 89. 1grod  |  April 29, 2015 at 12:00 pm

    Rik: 4th 10th and 7th. Although there is petition for cert from Idaho on the 9th Circuit Appeals' decision, it is outstanding.

  • 90. VIRick  |  April 29, 2015 at 1:46 pm

    "I do not understand why they would have voted to deny CERT on the 4th, 10th and 9th decisions. "

    Rik, the decision to deny certiorari to the 5 cases from the 4th, 7th, and 10th Circuits on appeal pending before the Supreme Court was announced on 6 October 2014. At that point in time, there was no circuit split. And yes, it takes 4 votes to grant certiorari. So, at that moment, one or two of the RATS (most likely, the head rat) was punting the issue down the road.

    Then, in handling stay appeals from the 9th Circuit, the Supreme Court lifted the stay on the original Idaho stay appeal on 10 October 2014, and on the Alaska stay appeal on 17 October 2014. In both instances, it took 5 votes to deny the stays.

    The negative decision in the 6th Circuit was announced on 6 November 2014.

    However, subsequent to this decision, and thus unchanged by it, the Supreme Court further denied stay appeals from the 11th Circuit, from Florida on 19 December 2014 and from Alabama on 9 February 2015. Again, it took 5 votes to deny the stays.

    So, as shown from October 2014 through to February 2015, we've got the 5 votes.

    The denial of certiorari last October immediately brought marriage equality to the 5 states in question: Virginia, Indiana, Wisconsin, Oklahoma, and Utah. And ultimately, it led to marriage equality in North Carolina, West Virginia, and South Carolina, as well as Colorado, Wyoming, and Kansas (with Kansas resisting).

    The denial of the stays in the 9th Circuit immediately guaranteed marriage equality in Idaho and Alaska, but also assured the same for Nevada, Arizona, and Montana (plus Guam and the Northern Marianas).

    And they continued, denying stays on appeal from both Florida and Alabama (with Alabama resisting). So, to date, the Supreme Court itself has added 18 more states and several territories to the marriage equality column.

    However, since the 6th Circuit failed to read the memo, their negative ruling there actually speeded up the "slow walk" process somewhat, as I suspect that the Court itself originally expected that they wouldn't have to issue a definitive ruling on nationwide marriage equality until June 2016.

  • 91. StraightDave  |  April 29, 2015 at 4:54 pm

    If the 6th hadn't forced the issue, by June 2016, the count would likely have been at 42, missing only the 5th and 8th Circuits. Another year of getting used to it. SCOTUS would only need to sweep up the crumbs at that point, which everyone would have taken for granted. I suspect that's what they hoped for.

    So they're off by a year. That's not enough to turn the whole thing upside down. And if Kennedy is inclined to dawdle, he seriously risks missing his big opportunity entirely. He's not dumb.

  • 92. guitaristbl  |  April 29, 2015 at 10:55 am

    LGBTQnation : "Justice Kennedy sent clearer signal in 2013 marriage case" :

    This is pretty much the climate on every news outlet.

  • 93. tigris26  |  April 29, 2015 at 11:45 am

    I am glad to see the LGBTQnation article acknowledge Kennedy's reservation with his "millennia" statement, BUT not get too hung up on it. As the second page of the article points out, Kennedy was not buying the States' arguments at all and was frequently critical of Michigan's narrow definition denying same-sex couples and their children the dignity and respect they are trying to fulfill through marriage. Or the fact that Kennedy states right after the "millennia" quote, that he recognizes the same amount of time passing between Court cases dealing with racial discrimination in the 50s and 60s, that has been happening with regards to sexual orientation discrimination now.

    A number of articles out there seem to fret a whole lot over the "millennia" quote and completely disregard Kennedy's rebuttals of the States' arguments and how he's still holding strong on his belief in the dignity and respect for same-sex couples. I'm like, "Did you even listen to the rest of the audio?"

    Lyle over at SCOTUSblog's article has been one of the best assessments in my opinion:

    Lyle points out Kennedy's hesitation, but also shows that the rest of the 2.5 hours, Kennedy was NOT on the side of the opposition. The same Kennedy who wrote Windsor is still there.

  • 94. DJSNOLA  |  April 29, 2015 at 2:49 pm

    I agree… people need to calm down a bit. Even though this is an issue that has become much more supported in the country the Supreme Court still takes its role here very seriously. Its important that the court do its work. Nonetheless, people obsessing over the millennia argument are completely missing the rest of the hearing and what he was saying. Im sure we get 5-4 in favor of marriage. Every one of their actions indicates this.

  • 95. davepCA  |  April 29, 2015 at 11:22 am

    After the SCOTUS oral arguments in the Prop 8 and Windsor cases, a lot of pro-ME folks had immediate reactions of becoming very worried about how the court would rule, because of some of the questions asked by the court to the lawyers on our side during these arguments. Simply, it just FEELS awful to hear a Supreme Court judge asking questions that seem to be playing into the'arguments' that our opponents have been using relentlessly to attack us in the media and in the courts.

    This felt very ominous to a lot of people who felt that these questions from the court carried tremendous significance. While the emotional reaction is understandable, there isn't any reason to attach so much significance to this. It's just standard procedure. Look at the briefs. Look at the previous SCOTUS rulings, and the reasons the court gave in the ruling for WHY they made those rulings. Look at the previous cases that the court was asked to review which they declined to take up and allowed to stand. Look at the big picture, not just a few questions during oral arguments. This is all looking very good.

  • 96. JayJonson  |  April 29, 2015 at 11:29 am

    Precisely. Oral arguments are not a good means to determine how a justice is going to rule. And the oral arguments almost never persuade a justice one way or another. I agree that we have reason to be optimistic that the Windsor 5 will stick together on Question 1 and there may be a much larger majority on Question 2.

  • 97. DJSNOLA  |  April 29, 2015 at 2:52 pm

    Seriously, its getting to the point now where if a judge god forbid asks a question hes automatically against you. Are we wanting a court full of judges like Clarence Thomas?

    That would make all sessions very brief.

  • 98. Silvershrimp0  |  April 29, 2015 at 11:50 am

    So we're probably looking at a maximum of 2 months before SCOTUS rules on this case. Any chance we hear from the 5th circuit before then, or do you think they'll just keep sitting on it?

  • 99. scream4ever  |  April 29, 2015 at 9:33 pm

    I think they'll issue a ruling. Had they decided to hold off they would've made a formal announcement by now.

  • 100. SethInMaryland  |  April 29, 2015 at 12:06 pm

    News media and ppl are getting hung up on Kennedy's comment to marry but are almost ignoring that he had strong questions and blasting the state att about the the dignity and rights lgbt couples

  • 101. tigris26  |  April 29, 2015 at 12:19 pm

    EXACTLY! I am like, "Did you guys not listen to the rest of the audio?!" Kennedy says ONE slightly negative thought at the beginning and suddenly everybody's somber.

    Kennedy certainly didn't hide his views when he was sending sharp questions towards Mr. Bursch. That's the Kennedy we remember from Windsor. He's still here.

  • 102. Zack12  |  April 29, 2015 at 12:22 pm

    Indeed, and I also have to add that I hope our side didn't expect Kennedy to ask a couple of tough questions, he IS still a conservative after all.

  • 103. tigris26  |  April 29, 2015 at 1:00 pm

    For sure! Kennedy cares deeply for the dignity and rights of gays and lesbians, that is clear from his decisions and what he vocalized in yesterday's arguments.
    But, as you point out, he is still considered a conservative – a moderate one – and so he has other views that he likes to ponder over as well.

  • 104. Decided_Voter  |  April 29, 2015 at 1:15 pm

    Right – he is a "go sloooow when it comes to social progress" kind of conservative. He has to dip his toes in the water 50 times before jumping in – at least that's the image he projects. Maybe in his own mind he's more certain than what he shows.

  • 105. mariothinks  |  April 29, 2015 at 12:12 pm

    There was a lot of speculation that minds changed half-way through the Windsor decision because of how short it was and how long the Court took. I think we will have this as well. Breyer, Ginsburg, Sotomayor, and Kagan are for sure voting in our favor. Thomas and Scalia will for sure vote against us (maybe not Scalia in the second question). I am of the opinion that Roberts, Kennedy, and Alito are up in the air. Alito appears like an open-minded man in interviews outside the court. It's a shame he doesn't show that in the Court. But I have hope that perhaps his fairer side may prevail. Kennedy wrote Windsor, Lawrence, and Romer, so he's for sure the main toss-up. And Roberts seems like a man with much concern for his legacy and I think he may not want to go down as the Chief Judge who sided against equality. Because, after all, this will either be known as the Dred Scott or the Loving of the gay community in decades and centuries to come.

  • 106. SethInMaryland  |  April 29, 2015 at 1:50 pm

    Another thing i add is when is the case started kennedy was hestiant and cautious but as it went he showed more and more he inching closer feeling more better about the idea, in away this reflects the american ppl who were cautious of supporting marriage equality but as time progressed became more accepting. I almost think he trying to show that

  • 107. Decided_Voter  |  April 29, 2015 at 2:23 pm

    And since the court is usually behind the American people in timing, that would make sense.

  • 108. guitaristbl  |  April 29, 2015 at 2:22 pm

    YES !! :

    And the official documents :

  • 109. A_Jayne  |  April 29, 2015 at 2:26 pm

    Agree it is good we will not get a ruling against us before SCOTUS rules for us. I still think the 8th C judges waiting to listen to SCOTUS oral arguments, then knowing they still cannot predict the SCOTUS outcome (with which they may have tried to agree), deciding not to even hear the case(s) makes them weasels!

  • 110. VIRick  |  April 29, 2015 at 3:18 pm

    8th Circuit Court of Appeals Defers Same-Sex Marriage Cases

    RAPID CITY, SD — The 8th Circuit Court of Appeals has deferred arguments and a decision on four same-sex marriage cases until after the Supreme Court rules on the issue. Today, 29 April 2015, the court announced that it’s holding off on “any further consideration” of the four cases before it from South Dakota, Arkansas, Missouri, and Nebraska. Oral arguments had been scheduled to be heard on 12 May 2015 in Omaha, Nebraska.

    All four states are appealing federal judges’ decisions to overturn same-sex marriage bans. The Supreme Court heard oral arguments yesterday and could decide by late June whether same-sex couples can marry nationwide.

    Attorney Josh Newville is representing six couples from South Dakota. Newville says a Supreme Court ruling could make all of the 8th Circuit Court cases moot.

  • 111. DrBriCA  |  April 29, 2015 at 2:45 pm

    Just in…. Looks like the 8th Circuit got the message yesterday and put their hearings for May on hold until after SCOTUS rules. Looks like the 6th will remain the sole circuit with the notoriety of ruling against ME!

    Now if only the Fifth would release their decision….

  • 112. flyerguy77  |  April 29, 2015 at 2:49 pm

    totally agreed after listening to the audio of oral arguments I have sense that they will be reversing the 6th CA. maybe 5 to 4 or 6-3 votes.. But on Q2 I feel like it might be 7-2.. i dont know..

  • 113. DJSNOLA  |  April 29, 2015 at 3:01 pm

    There will be some positioning here because Question 2 will allow more conservative justices to write something. ( even Scalia seemed open to this one) So I guess we could see an opinion from Kennedy on Question 1 and then an opinion from Roberts on question 2. Everyone gets to look good for history sort of thing.

  • 114. yyyAllenyyy  |  April 29, 2015 at 3:44 pm

    Why would they even bother with Q2 if Q1 reverses the 6th?

  • 115. davepCA  |  April 29, 2015 at 3:52 pm

    In some of the lower court cases that are part of this consolidated case, that was the only question being examined since the couples were already married and were bringing suit to have their marriages recognized where they were now living.

  • 116. VIRick  |  April 29, 2015 at 9:33 pm

    Plus Kansas (in most counties) allows same-sex couples to marry, but then turns around and won't recognize those same marriages for other state purposes. Nor does it, and a number of other states, recognize out-of-state marriages between same-sex couples.

  • 117. 1grod  |  April 29, 2015 at 8:15 pm

    Post Oral Argument conferenced this Friday. G

  • 118. 1grod  |  April 30, 2015 at 6:46 am

    Bri: It becomes apparent to me that the window of opportunity for the Fifth Circuit has closed. And our side should stop hoping for it. The antics of Alabama probate judges and the State Supreme Court illustrate that where there's a will to thwart, a way will be found. It likely taught the US Supremes a lesson, as neither Florida or Alabama had be adjudicated on merits at the appellate level – a typical decision point . AND that's not to say the Thomas and Scalia's released opinion on the Stay wasn't intended to be incendiary in the State, but imo it was intended to stop the Supremes from doing similar things in the future [ie until June]. With a probable decision within 60 days, little is gained and much could be lost if the bigots are given a Texas stage to spew their venom. Regarding AL's Judge C Granade, there is benefit for her ruling on granting the plaintiffs and defendants class status, but imho the ruling on merits should be postponed as well. When the US Supremes' decision come down, her ruling can be tailored to it. Dishonourable Roy Moore and followers would be check-mated because she can rule for the entire State, where in Strawser v Strange she was actually ruling for 4 couples as the AL Supreme Court gleefully pointed out.

  • 119. DoctorHeimlich  |  April 29, 2015 at 3:16 pm

    There's a moment later in the Question 2 argument (around 39:00 in the audio; page 39 in the transcript), where Justice Ginsburg notes: "A divorce with proper jurisdiction in one State must be recognized by every other State, but not the act of marriage."

    In the audio, you can hear one of the other Justices very quietly mutter "interesting" before Mr. Whalen begins his answer. I couldn't figure out who said that, and was hoping the transcript would identify the speaker, but sadly it isn't there.

    Seems like somebody thought the Notorious RBG had another mic drop moment with that one.

  • 120. davepCA  |  April 29, 2015 at 3:50 pm

    Thank you for that mental image : )

  • 121. StraightDave  |  April 29, 2015 at 5:07 pm

    That was the moment I felt that FFC had some real legs, and could draw in other support. I had discounted it before the hearing because it wasn't pursued in many briefs. But when Scalia, of all people, brought it up, that all changed. It was a weird moment for me.

  • 122. DrPatrick1  |  April 29, 2015 at 6:19 pm

    When Scalia brought it up, I thought he was throwing out the obvious on point issue which he would then demolish. As it turned out, nobody took the bait. But then, it seemed like maybe he really was trying to throw us a bone (mixed metaphors much…).

    Don't get too excited though. I don't understand the rationale for forcing the states to abide another state's marriage license but saying the Feds can't recognise it. But, I still don't understand why FFC doesn't apply.

  • 123. VIRick  |  April 29, 2015 at 9:40 pm

    "…. I still don't understand why FFC doesn't apply."

    I don't either, and the rationale is too convoluted to even attempt an explanation, but it has something to do with the fact that issuing a marriage license is not a judgment, whereas a divorce decree, for example, is.

  • 124. DrPatrick1  |  April 29, 2015 at 10:02 pm

    But the clause treats "acts, records, and judicial proceedings" the same. I used to spout the whole a marriage is not really recognized as valid without a judgement, such as that with a divorce, to say that marriages were not subject to FFC. However, isn't a marriage certificate a public record, and in fact, the very type of public record that a plain reading of Article IV Section 1 would seem to include? What public acts or records would be meant if not a marriage certificate. After all, even a driver's license is recognized across state lines.

  • 125. RnL2008  |  April 29, 2015 at 10:47 pm

    Many Gays and Lesbians have discussed the FFC, but up until now it WASN'T used with regards to marriages, just court stuff like lawsuit settlements and child custody/support payments…….but if Justice Scalia tossed it out there… means he is thinking about it and could apply it towards marriages.

  • 126. DrPatrick1  |  April 29, 2015 at 10:55 pm

    Fat chance… But who knows! I think tht FFC should apply with respect to marriages and RBG seemed bothered by the idea that a divorce would have to be recognized but not the marriage. What's more, could someone legally married in NY move to TN and then marry someone else, and not be committing a crime? What if they move back to NY?

  • 127. RnL2008  |  April 29, 2015 at 11:39 pm

    It's strange that you mention this situation because in one of the States, I believe it was either the AG or DA that said if for example a Gay or Lesbian couple were legally married in Iowa, but then moved to Indiana….Indiana would NOT recognize the marriage therefore one could marry someone of the opposite-sex in Indiana and it WOULDN'T be a crime because the one marriage WOULDN'T be recognized……and I thought, wait a minute…..the Lawyer was actually encouraging this couple to do that……weird.

  • 128. VIRick  |  April 30, 2015 at 12:13 am

    "…. RBG seemed bothered by the idea that a divorce would have to be recognized but not the marriage."

    Indeed, she was bothered by this obvious discrepancy. As a result, perhaps the Court will take the opportunity to amend this peculiarity, one which was apparently created by previous court rulings, and one which may well pre-date all the state-imposed constitutional bans on same-sex marriage.

  • 129. sfbob  |  April 30, 2015 at 10:29 am

    The public policy exception to Full Faith and Credit long pre-dates the marriage equality issue though it did come in handy as an excuse. Many of the state marriage equality simply said "it is the public policy of this state…" or words to that effect, basically using it as a get-out-of-jail-free card. It is used to indicate that they don't need to provide a reason for denying marriage equality or for refusing to recognize existing same-sex marriages, they just need to state it. Which is a rather dubious assumption.

    From what I've been reading on the subject (I'm not a lawyer; it's just that there's been plenty of reason to do Google searches of the topic of late), it looks as though the whole notion of a public policy exception is not very well regarded by the judiciary at any level and its application is likely to be extremely limited in the future.

  • 130. 1grod  |  April 30, 2015 at 11:07 am

    It was my understanding that Section 2 of DOMA reinforced.
    Recall Ok Bishop and Barton Jan 2014 decision: The Bartons complaint was filed in part under Section 2. Judge T Kean wrote:
    Congress was concerned that if Hawaii (or some other State) recognizes same-sex marriages, other States that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions. The US House Judiciary Committee determined that states already possessed the ability to deny recognition of a same-sex marriage license from another state, so long as the marriage violated a strong public policy of the state having the most significant relationship to the spouses at the time of the marriage. However, the Committee also expressed its view that such conclusion “was far from certain.” “While the Committee does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would require sister states to give legal effect to same-sex marriages celebrated in other States, there is sufficient uncertainty that we believe congressional action is appropriate.”. In order to address this uncertainty, Congress invoked its power under the second sentence of the U.S. Constitution’s Full Faith and Credit Clause (the “Effects Clause”), which permits Congress to “prescribe the effect that public acts, records, and proceedings from one State shall have in sister States.” The Committee described Section 2 as a “narrow, targeted relaxation of the Full Faith and Credit Clause.” Consistent with this legislative history, Section 2 has been described by courts and commentators as permitting states to refuse to give full faith and credit to same-sex marriages performed in another state. See Windsor, 133 S. Ct. at 2682-83
    (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”); “Section 2, in effect, indicates that no state is required to give full faith and credit to another states’ determination that ‘a relationship between persons of the same sex is treated as a marriage’”); Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 378 (D.Mass. 2010) (“In enacting Section 2 of DOMA, Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage.”) ..
    Since DOMA’s passage, some scholars have concluded that Section 2 was unnecessary and simply reiterates a power that states already possessed. (“Section 2 of DOMA is expressly intended to ratify such [state public] policies (if any
    ratification were needed).”); Mary L. Bonauto, DOMA Damages Same-Sex Families and Their Children, 32 Fam. Adv. 10, 12 (Winter 2010)

  • 131. wes228  |  April 30, 2015 at 4:53 am

    The very simple explanation is that, even without having to go into differences between acts and judgments, Congress exercised its power under the Full Faith and Credit Clause in passing DOMA Sec. 2 saying that states did not have to recognize them.

    Refusing to recognize out-of-state same-sex marriages can violate the 14th Amendment, but not the Full Faith and Credit Clause. The questions presented were limited to the 14th Amendment.

  • 132. DrPatrick1  |  April 30, 2015 at 7:13 am

    I believe you are correct, Wes, but then why not go after it and section 2 of DOMA together? It seems like that would be an easy win for us on recognition. Already the court seemed more inclined to go with us on recognition, and this might be an easy way to get there.

    In the end, I believe it is our time on question 1, so no worries anyway, but still…

  • 133. wes228  |  April 30, 2015 at 8:51 am

    Arguments were limited to the relationship between the 14th Amendment and state laws, with no mention of whether DOMA Sec. 2 violates the 14th Amendment*. This would likely require an order for re-arguments as Congress would reasonably want to weigh in on that matter.

    If marriage recognition bans violate the 14th Amendment, then whether or not DOMA Sec. 2 does too is a moot point.

    If DOMA Sec. 2 violates the 14th Amendment, then it does not automatically follow that state recognition bans do too (in the same vein that Sec. 3 being unconstitutional does not automatically make state performance/recognition bans unconstitutional too).

    While a finding that DOMA Sec. 2 violates the 14th Amendment makes it much easier to argue that state recognition bans do too (in the same way that finding Sec. 3 violates the 14th Amendment makes the performance argument much easier), and opens up the Full Faith and Credit Clause avenue, it's just a more direct approach to go right for the "state recognition bans violate the 14th Amendment" avenue, bringing the same result in one step as opposed to two (challenging DOMA Sec. 2 then recognition bans). The only benefit to the two-step method is that it opens up that additional Full Faith and Credit Clause avenue, which is itself dubious because of the different deference given to state acts and judgments (a Full Faith and Credit Clause-based ruling may find that states must recognize marriages for some purposes, but don't have to for others).

    *I refer to DOMA violating the 14th Amendment as shorthand for DOMA violating the guarantees of liberty and equal protection that the 14th Amendment reverse-incorporates against the federal government through the 5th Amendment.

  • 134. StraightDave  |  April 30, 2015 at 9:24 am

    Congress may well have exercised its FFC power with DOMA-2, but it was the state bans, themselves, that are unconstitutional, not DOMA-2.

    In any case, Congress cannot authorize unconstitutional behavior under any guise. That is simply not within their power.

    1) One could imagine Congress legitimately authorizing states to ignore outside marriages from *all* other states, citing FFC. But that's not what Congress did.

    2) Once could imagine Congress authorizing states to ignore outside marriages from some particular states they didn't like or feel culturally aligned with, e.g, KS accepting marriages from OK, but not from NY. That's kind of along the same lines as accepting marriages from Canada but not Saudia Arabia. There could be some good arguments to be had with that one. But that's not what Congress did.

    3) What Congress actually did was to tell states they could hold up 2 identical pieces of legal paper from the same state (say, NY), embrace one and rip the other one up, based solely on who presented those papers. If that ain't an equal protection violation, nothing is.

  • 135. 1grod  |  April 30, 2015 at 11:28 am

    District Judge T Kern's judgment Bishop v Ok (Jan 2014) – p 15: Section 2[DOMA] is an entirely permissive federal law. No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . that is treated as a marriage under the laws of such other State . . . .”). It does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon non-recognizing states, and does not punish recognizing states. The injury of non-recognition stems exclusively from state law. …………………………………………………… See generally Bonauto (explaining that “[l]egal challenges to section 2 of DOMA have been few, and none have succeeded, at least in part because it is the state’s nonrecognition law that presents the impediment to recognition, not section 2 itself”).

  • 136. guitaristbl  |  April 29, 2015 at 4:12 pm

    On topic but slightly less "judicial" : Jim Obergefell is the sweetest guy really, his gentle presence and demeanor hasn't caught my attention before :

    (at 3:30)

  • 137. guitaristbl  |  April 29, 2015 at 5:52 pm

    Unfortunately judge Heyburn did not live long enough to see his great opinion in Bourke vindicated in SCOTUS. He died today, a day after the arguments in his case before SCOTUS :

    I hope that the majority of SCOTUS sees indeed that the arguments of the states "are not those of serious people".

    May he Rest In Peace.

  • 138. DJSNOLA  |  April 29, 2015 at 7:36 pm

    How unfortunate. What a great man and lets hope his views are vindicated. Would be bittersweet but I think his views will win out come June.

  • 139. 1grod  |  April 29, 2015 at 8:34 pm

    bl: "In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here". .p 11 Justice John Roberts take note – your brother Judge John G. Heyburn II.
    Perhaps Mary Bonauto could have used the words of the lower court judges to touch the Supremes' intellectual and emotional intelligence as well as their souls.

  • 140. jdw_karasu  |  April 29, 2015 at 11:28 pm

    One of the better opinions we got.

    Rest in peace Judge Heyburn.

  • 141. RemC_Chicago  |  April 30, 2015 at 10:04 pm

    I was sorry to read this. He was too young to die. I will never forget and will forever appreciate him for his "serious people" observation.

  • 142. VIRick  |  April 30, 2015 at 10:48 pm

    I will forever have his most famous quote etched into my memory banks.

    In referring to the ridiculously lame state arguments from Kentucky, he wrote, in"Love v. Beshear," the second of his two decisions striking down Kentucky's marriage bans: "These arguments are not those of serious people."

    Which, of course, in addition infers that neither Sutton nor Cook, both of whom bought in to the state's ridiculously lame argument, nor, in all probability, Scalia nor Thomas, are serious people.

  • 143. SethInMaryland  |  April 29, 2015 at 7:12 pm

    Thank goodness the 8th froze itself, still there are a few things look out for untill june, the5th circuit ruling and what will happen in ireland

  • 144. scream4ever  |  April 29, 2015 at 8:05 pm

    We could also see Arkansas and Guam move to our side, depending on how fast they want to I suppose. We are also likely to see clarification rulings out of Alabama and Kansas soon since the final briefs are in for both cases. Also, Greenland will pass their bill next month.

    I wonder if this action from the 8th will push the plaintiffs in the four states to request the Supreme Court to lift their stays…

  • 145. tigris26  |  April 29, 2015 at 7:51 pm

    Garrett Epps from The Atlantic had a great analysis of yesterday's SCOTUS arguments and specifically to Kennedy's reactions to Bursch:

    There are many good parts, but this is by far my favorite bit from the article:
    [And then, inexplicably, Bursch made one of the worst mistakes imaginable. He attacked Kennedy’s favorite term, “dignity.”]

    LOL!!! Yep, bad move, bro! Don't you mess with Kennedy's favorite word! 'Cause he will slap you.

    [Kennedy seemed almost stunned. “I don’t understand this ‘not dignity-bestowing,’” he said. “I thought that was the whole purpose of marriage … It’s dignity-bestowing, and these parties say they want to have that same ennoblement.”]

  • 146. 1grod  |  April 29, 2015 at 9:04 pm

    Tigris: Agree, 'There are many good parts'. My favorite is "Roberts, who is most likely in the pro-traditional-marriage camp, is the father of two adopted children [4 & 5]. Bursch repeatedly came close to suggesting that adopted families were not as valuable to the state as intact biological ones." Was John Bursch aware that Mrs. John Roberts was in attendance? Yikes!

  • 147. Rakihi  |  April 29, 2015 at 8:10 pm

    Nation On Edge As Court Votes Whether To Legalize Gay Marriage Now Or In A Few Years

  • 148. davepCA  |  April 29, 2015 at 11:22 pm

    Just finished watching the opening segment on tonight's Daily Show with Jon Stewart, all about the oral arguments yesterday. Hilarious, as usual. Worth checking out.

  • 149. RnL2008  |  April 30, 2015 at 12:35 am

    Not to off-topic, but here is what the Republicans are cooking up:

    And this idiot Republican from Texas thinks it's our fault for the rioting in Baltimore:

  • 150. RnL2008  |  April 30, 2015 at 12:47 am

    This is a pretty interesting article that clearly should be read because it may help us with the next round of lawsuits:

  • 151. RnL2008  |  April 30, 2015 at 12:56 am

    Here's an article about SCOTUS:
    Justice Stephen Breyer, who usually has a lot of respect for legislative judgments, here found it difficult to find anything to defer to. When states try to justify denying same-sex couples the right to marry, “the answer we get is, well, people have always done it,” observed Breyer. That answer won’t do, because it was used to justify racial segregation. “Or, two, because certain religious groups do think it’s a sin.” That can’t justify a law either. “And then when I look for reasons three, four and five, I don’t find them. What are they?”

  • 152. JayJonson  |  April 30, 2015 at 11:24 am

    I have to keep reminding myself that the oral arguments should not taken too seriously, otherwise I would be deeply depressed, not because I think we will lose (I don't), but because it is deeply embarrassing to think of Justices of the Supreme Court of the United States advancing such stupid arguments (in the form of questions) as those put forward by Scalia and Alito and Roberts. Truly, a Supreme Court Justice warning that if gay marriage is made legal throughout the country, then four people can get married or that churches will have to perform same-sex marriages or that debate will be halted if the Court rules in favor of marriage equality? As the dear departed Kentucky Judge Hepburn would say, these are not the arguments of serious people.

    Even granting the demogogic tendencies of these particular justices, their performance on April 28 certainly draws back the curtain of the Wizard to reveal intellectually dishonest and impoverished small men. Thank goodness for Justices Breyer, Ginsburg, Kagan, Sotomayor, and Kennedy.

  • 153. RnL2008  |  April 30, 2015 at 12:03 pm

    I am right there with ya Jay and another issue for me is this……has ANYONE noticed that up until oral arguments yesterday marriage was considered a FUNDAMENTAL right, but now because Gays and Lesbians are fighting to be INCLUDED in that right, SCOTUS opted to look at this issue from an Equal Protection/Due Process stance INSTEAD of just admitting that marriage is a FUNDAMENTAL right REGARDLESS of gender make-up.

    I personally am tired of being told that my RIGHT to marry is LESS important than someone's right to religious freedoms. They are NOT exclusive BECAUSE Gays and Lesbians are Christians as well……one day when we are older than we are now, maybe someone will say to us, "We screwed up when it came to handling the rights for our Gay and Lesbian Citizens".

  • 154. JayJonson  |  April 30, 2015 at 1:01 pm

    Absolutely agree, Rose. I am inured to the stupid ideas of the uninformed and indoctrinated, but it is especially disturbing when one hears someone as educated as the likes of these Justices regurgitating nonsense. The RATS are really just demagogic political hacks. The fact that they managed to get lifetime appointments with such power is disgraceful and says something really sad about our nation. It also, of course, means that we must not let a Republican gain the White House in 2016.

  • 155. RnL2008  |  April 30, 2015 at 1:16 pm

    I truly believe that with the current idiots who have put their hat into the running for President from the Republicans that given what we know now, Hillary or Bernie Sanders have a great chance at wining the White House in November 2016.

    I was hoping that President Obama would have another chance to nominate another person for the Supreme Court, but it DOESN'T look like that will happen and if we truly DON'T want to step into the Dark ages, we will insure a Republican WON'T gain the big prize in 2016.

    I do agree with you that we will win the battle for the right to marry, but those who hate us for no other reason but to simply hate us will continue to find ways to harm us. As some of the links I posted last night imply…….this fight is far from over even though there are more pressing needs than folks worrying about who is marrying who and what they are doing in bed…… guess is that what they think we are doing in bed is NOT even close to what we are ACTUALLY doing in bed……lol!!

  • 156. RnL2008  |  May 1, 2015 at 1:02 pm

    Folks, you should read this article……it rather funny that the Michigan Lawyer who wants SCOTUS to uphold the ruling from the 6th, sort of pisses off Justice Kennedy:

    Here are some quotes by the idiot:
    1) When asked why the state would exclude these women from marrying, Bursch insisted the decision had nothing to do with disapproval of their relationship. The fact the women were gay was not the problem, he said.

    2)"Oh, gosh, no. The state doesn't care about your sexual orientation," Bursch told Justice Elena Kagan. "We're not drawing distinctions based on the identity, the orientation or the choices of anyone. It's not meant to exclude."

    3)The state's concern, he said, is that allowing the women to marry would have an effect on the rest of society. It would "de-link the idea that we're binding children with their biological mom and dad."

    4)But what about adopted children, asked Justice Stephen G. Breyer. Shouldn't their parents also be allowed to marry?

    "We love adoptions. Adopted parents are heroic," Bursch said, but "that's an entirely different social issue."

    5)If opposite-sex adoptive parents marry, the state doesn't see a problem with de-linking marriage and procreation in people's minds, but same-sex couples marrying would pose that problem, he explained.

    6)At one point, Kennedy said he was waiting to hear "some kind of rational or important distinction." When Bursch tried, Kennedy politely disagreed.

    The premise "that only opposite-sex couples can have a bonding with the child," Kennedy said, "that's very interesting, but it's just a wrong premise."

    7)Two years ago, Kennedy spoke for the court in striking down part of the federal Defense of Marriage Act. It infringed "the equal dignity of same-sex couples," he said.

    When Bursch said marriage had nothing to do with dignity and emotional commitment but only sex and biology, Kennedy sounded offended.

    8)"That assumes that same-sex couples could not have the more noble purpose, and that's the whole point," he said. "Same-sex couples say, 'Of course, we understand the nobility and sacredness of marriage. We know we can't procreate, but we want the other attributes of it in order to show that we too have a dignity that can be fulfilled.'"

    Bursch made one more try. "Justice Kennedy, to be perfectly clear, the state of Michigan values the dignity and worth of every human being, no matter their orientation or how they choose to live their life. That's not what this case is about."

    And this why these anti-gay folks just DON'T get it…….enjoy the reading… my opinion, Bursch nose must have been growing like Pinocchio's….lol

  • 157. VIRick  |  May 3, 2015 at 7:28 pm

    Argentina Grants Birth Certificate Listing 3 Parents

    In what appears to be a "first ever," whether in Argentina or elsewhere, Buenos Aires Province has granted a family legal recognition of three parents. A lesbian couple and the biological father of their child have all been listed on the child’s birth certificate, which gives them all legal recognition as parents of the child. The family says it is "important" that they are all recognized as parents.

    According the Buenos Aires Provincial Registrar of Persons, Claudia Corrado, this is in the best interests of the child, and means that the father, Hernan Melazzi, retains his rights and responsibilities for the child. Mothers Susana Guichal and Valeria Gaete have been together for eleven years, and married for three. They said they think of Melazzi as more than just a sperm donor for their child.

    Esteban Paulón, head of the LGBT Federation of Argentina, stated, “We are so proud, on this historic day, of the decision of the Buenos Aires Provincial government. We didn’t even need to go to the courts. It is like science fiction for other countries, who are only just discussing equal marriage or common children.” Mr. Melazzi said: “This is a very important moment for the three of us and for Antonio, our child.”

    Through legislative enactment, but with the Supreme Court of Argentina poised at that time to declare Articles 172 and 188 of the Argentine Civil Code unconstitutional, marriage between same-sex couples in Argentina has been legal nationwide since 22 July 2010. However, 8 same-sex couples were legally married in Argentina through court orders prior to that date, the first legal marriages between same-sex couples anywhere in South America. By court order, the very first legal marriage between a same-sex couple occurred on 28 December 2009 in Ushuaia, Argentina, the very first anywhere in Latin America.

    In another earlier "first ever" for Argentina, on 27 July 2012, a Buenos Aires couple, Alejandro Grinblat and Carlos Dermgerd, became the first men in Latin America to obtain double paternity of a newborn.Their baby, Tobías, is the natural son of one of the two men and was born to a surrogate mother. He became the first person in the world with a birth certificate listing two fathers.

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