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Eighth Circuit cancels oral argument in marriage cases

LGBT Legal Cases Marriage equality Marriage Equality Trials

In a brief order, the Eighth Circuit Court of Appeals has canceled oral arguments in challenges to same-sex marriage bans from Arkansas, Nebraska, South Dakota, and Missouri.

The appeals court will wait until after the US Supreme Court issues its decision in Obergefell v. Hodges, which was argued on Tuesday.

The court wasn’t asked to postpone the arguments: it decided to do so on its own.

The arguments had been set for May 12, and a decision by the Supreme Court in Obergefell is expected by late June.

Thanks to Equality Case Files for these filings


  • 1. SethInMaryland  |  April 30, 2015 at 8:55 am

    A vote occured in norther ireland a few days ago in the legislature , it failed 49-47, however it was closer then has ever been before, the conservatives in northern ireland have been able to stop for some time however momentum is building

  • 2. Randolph_Finder  |  April 30, 2015 at 10:09 am

    And Marriage Equality in Ireland should help.

  • 3. Waxr  |  April 30, 2015 at 11:31 am

    Marriage Equality in Ireland?
    Don't make me laugh. In Ireland, the man is head of the household, and his wife serves as a punching bag.

  • 4. Randolph_Finder  |  April 30, 2015 at 11:33 am

    Currently polling at more than 70% with the vote less than a month away.

  • 5. bythesea66  |  April 30, 2015 at 12:01 pm

    Stereotype ignorantly much?

  • 6. ebohlman  |  April 30, 2015 at 1:44 pm

    Ireland has changed a great deal in the last few decades and is now considered a fairly liberal country with a rather young population. In particular there's a lot of sentiment in favor of reducing the Vatican hierarchy's influence on Irish politics and policy; the ME initiative was the first initiative to be recommended by a commission set up to look into how the Irish constitution needs to be modernized.

    For several years, support for ME in Ireland has exceeded that in Australia, Canada, New Zealand, the UK, and the US.

  • 7. DJSNOLA  |  May 1, 2015 at 6:40 am

    Thats awesome and great for Ireland. We need all the countries we can get. Hopefully Switzerland and Chile wont be too far behind.

  • 8. Mike_Baltimore  |  May 1, 2015 at 12:55 pm

    I think a lot of that "sentiment in favor of reducing the Vatican hierarchy's influence on Irish politics and policy" stems from the findings of church involvement and hiding of sexual 'misbehavior' in Ireland, and the revulsion the people have for the sexual 'misbehavior'.

    Yes, it was mostly the priests who were involved with the 'misbehavior' itself, but it was the bishops, archbishops, even cardinals (with some indications that it might have gone as high as one or more popes) who tried to hide the 'misbehavior'.

  • 9. Randolph_Finder  |  May 1, 2015 at 2:44 pm

    I'm not trying to make light of the crimes of the priests and up the chain in the USA, but what the Irish church did makes the US situation look like a tea party.

  • 10. A_Jayne  |  May 1, 2015 at 7:02 pm

    The Church in Ireland also suffered (and rightfully so) after all the children's bodies were found in septic tanks at orphanages, and so many women went public with stories of having their newborns taken from them when they were young single mothers.

  • 11. VIRick  |  May 1, 2015 at 7:51 pm

    This reply is directed to A_Jayne, as only certain reply buttons are currently illuminated (and his is not):

    Watch the bedevilling terminology. The Church of Ireland is the minority protestant Episcopal (Anglican) Church, affiliated with the Church of England, and quite supportive of marriage equality.

    I believe your comments are referring to the majority Roman Catholic Church in Ireland, commonly known throughout the British Isles as RC.

    For quite some time now, and as ironic as it sounds, the only folks paying any heed to the RC hierarchy in Ireland are the diehard Presbyterians in Northern Ireland. But with well over 95% of them being situated on the British side of the border (given that they're also the ones who are so adamant about remaining British), they will not be participating in the upcoming referendum in the Republic. There are more Muslims in the Republic than Presbyterians.

    On the subject of marriage equality, the only two identifiable demographic groups opposed are the RC hierarchy and the Presbyterians. By geographic location, only Counties Kerry and Donegal are evenly split, possibly leaning toward being opposed. All other counties in the Republic are in favor.

  • 12. A_Jayne  |  May 1, 2015 at 10:08 pm

    "I believe your comments are referring to the majority Roman Catholic Church in Ireland, commonly known throughout the British Isles as RC. "

    Exactly. Thank you for the explanation.

  • 13. VIRick  |  May 1, 2015 at 10:32 pm

    For the admins of this site:

    At this moment in time, the reply buttons (on at least one post) for the following users are not illuminated (and thus, can not be replied to):

    Mike_Baltimore, Ralph_Finder, A_Jayne, VIRick, Eric, JayJonson, brchaz, FredDorner, Raga, RNL2008, Decided_Voter, jpmassar, and 1grod.

  • 14. davepCA  |  May 1, 2015 at 10:34 pm

    You should use the "visit our support page" link at the very very bottom of the page to report this. You can also use the email link in the "Got Questions?" section in the right column.

  • 15. VIRick  |  May 1, 2015 at 10:42 pm

    This reply is directed to davepCA, as his reply button is also not illuminated:

    Dave, I already did so earlier today, but thanks for the reminder. Still, it appears that others, like Rose, are having similar issues.

  • 16. Zack12  |  April 30, 2015 at 11:23 am

    This is a good thing.
    After the garbage we heard from Scalia, Alito and Roberts earlier in the week, no need to hear from more bigoted judges who would rule against us.

  • 17. Raga  |  April 30, 2015 at 11:38 am

    Whilst I'm pondering this week's oral arguments, I keep coming back to these passages from Justice Kennedy's Lawrence opinion (which most of us here are very familiar with, but I want to connect them to the context of his participation in Tuesday's oral argument):

    "In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."

    During oral argument (on the first question), Justice Kennedy began with questions that emphasized the history and tradition of marriage, but by the end, his questions moved towards the dignity-bestowing nature of the marriage institution. (Yes, the Plaintiffs went first and then the Defendants, but bear with me a bit…) Twice, Justice Kennedy essentially interpreted the Plaintiffs, who are "persons in a homosexual relationship" as simply "seek[ing] autonomy for these purposes [marriage]", something that he explicitly endorsed in Lawrence as per the above quote from his opinion: the first time, he interpreted the same-sex couples as saying that they "understand the nobility and the sacredness of the marriage," and that they "want […] marriage in order to show that [they], too, have a dignity that can be fulfilled," and the second time, he interpreted the same-sex couples as saying that they "want to have the same ennoblement [that marriage provides]." It quite plainly follows, then, from Casey and Lawrence, that the Fourteenth Amendment would protect this "choice [of whom to marry] central to personal dignity and autonomy" from the "compulsion of the State."

    Another quote, again from Lawrence (which, in turn, is from another Kennedy opinion) aptly summarizes the entirety of Justice Kennedy's participation in Tuesday's oral argument: "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry."

  • 18. Rick55845  |  April 30, 2015 at 12:32 pm

    That suggests to me that if Kennedy is consistent, his reasoning, should he be the one to write the majority opinion, is likely to be based on due process.

  • 19. Raga  |  April 30, 2015 at 12:59 pm

    I'm 100% sure that due process was weighing heavily on Justice Kennedy's mind during oral argument, because he very clearly asked Verrilli about Glucksberg, and in so doing, all but admits it, even speaking for the entire Court:

    "I'm interested in your comments on Glucksberg, which says that we should have to define a fundamental right in its narrowest terms. A lot of the questions that we're asking your colleague in the earlier part of the argument, we've had that in mind, I think. What do we do with the language of Glucksberg that says we have to define it in a narrow way?"

    Verrilli refused to answer because he hadn't briefed the issue, but Justice Kagan provided the correct answer (which we all know only too well) during the second half of the oral argument (on the first question) while sparring with Bursch:

    "So let's go back to the liberty limits that you were just talking about. Now, the right to marry. We had Loving. We had Zablocki. We had Turner. In all of these cases what we've talked about is a right to marry. We didn't try to define the right more particularly: Is there a right to interracial marriage? Is there a right to marry if you're a prisoner? We just said there's a right to marry, that is fundamental and that everybody is entitled to it unless there's some good reason for the State to exclude them. So why shouldn't we adopt the exact same understanding here?"

  • 20. tigris26  |  April 30, 2015 at 3:24 pm

    Excellent analysis, Raga!

    This is very interesting. I've definitely heard legal experts and other court observers say how due process is a very likely route Kennedy will take to join the liberal justices to bring marriage equality nationwide, especially considering his previous opinions.

    But another argument I've started hearing, especially after Tuesday's arguments, is that Kennedy could ALSO likely to go down the route of equal protection clause (and not due process) because of his consistent concern for the "dignity" and "respect" for the same-sex couples and their children, which is also consistent in his previous opinions. I know Kennedy definitely let Bursch know THAT during the State arguments on Tuesday!

    So, could Kennedy possibly rule for marriage equality both on the basis of due process and equal protection?

  • 21. davepCA  |  April 30, 2015 at 3:56 pm

    Yup. In fact, several of the lower court rulings have already done exactly that.

  • 22. ianbirmingham  |  April 30, 2015 at 5:10 pm

    Go read Loving v. Virginia – Warren's majority opinion does exactly that……

  • 23. tigris26  |  April 30, 2015 at 6:17 pm

    Cool! Thought I had read that before. 🙂 Hopefully then Kennedy will follow his idol's footsteps.

  • 24. Raga  |  April 30, 2015 at 9:03 pm

    Kennedy has a way of (more often than not) not clearly saying whether it's DP or EP. Many lower courts (even appellate) had a tough time interpreting whether Windsor was DP or EP – it's probably a mixture of both. I won't be surprised if this one turns out to use similar language.

  • 25. JayJonson  |  April 30, 2015 at 1:08 pm

    Thank you, Raga, for reminding us of Kennedy's deep commitment to liberty. He will do the right thing. He will do it, firstly, because it is the right decision to make for the country; he will do it, secondly, because it will be the capstone of an entire career devoted to expanding individual liberty.

  • 26. DrPatrick1  |  April 30, 2015 at 1:26 pm


    I see the merits of Due process, Equal protection SO, and Equal protection Sex. But I think the best case scenario is a win on EP SO. My concern with DP is that it will not help in future discrimination cases (such as RFRA cases) and Sex based protections are more clouded by personal bias (such as marriage opponents arguing that since men and women are each similarly impacted by the sex discrimination in marriage, it is not unconstitutional.) so it too would not be so helpful in future cases.

    HOWEVER, it sure does seem as if Kennedy has gone out of his way to not say SO is a suspect class, and perhaps this has been on purpose. If so, Due Process may be a way out for him. I just see this leading to even more cases, and failing to address the discrimination head on.

  • 27. Raga  |  April 30, 2015 at 1:42 pm

    Agreed, but I still think a win, even on pure DP grounds, will help future discrimination cases to some extent, though nowhere near how an SO-EP win would.

  • 28. Mike_Baltimore  |  April 30, 2015 at 2:10 pm

    ". . . since men and women are each similarly impacted by the sex discrimination in marriage, it is not unconstitutional."

    Which is EXACTLY the argument made by those who argued in favor of miscegenation laws – both men and women could NOT marry those of another ethnicity, therefore BOTH men and women are similarly situated. Because of that, they are in an equal position, and therefore it is not unconstitutional.

    If you argue what it appears you are arguing (that men and women are equally affected), how is your argument that different from the bigots of the 1960s?

  • 29. DrPatrick1  |  April 30, 2015 at 2:28 pm

    Mike, that is not my opinion, and not my argument. As I wrote above, this is the argument of those who oppose marriage.

    They differentiate sex and race because even before Loving, there was precedent for facially neutral race discrimination as having a disparate impact on racial minorities. In contrast, sex discrimination has no precedent as long as there is no disparate impact.

    Now please understand, I disagree with the notion that just because men and women are similarly impacted by marriage discrimination, there is no unconstitutional sex based discrimination. I think marriage discrimination is clearly a form of sex based discrimination.

  • 30. wes228  |  April 30, 2015 at 3:10 pm

    Kennedy declines to rule sexual orientation a suspect class because he's not a fan of tiered scrutiny levels.

  • 31. ianbirmingham  |  April 30, 2015 at 4:55 pm

    Really? Check out this just-released opinion in which Kennedy gets medieval on Roberts for not being sufficiently militant about strict scrutiny, while Breyer explains that in his view all levels of scrutiny are merely suggestions to be disregarded at will…

  • 32. Decided_Voter  |  April 30, 2015 at 11:24 pm

    Here's the Breyer quote from his concurrence:

    As I have previously said, I view this Court’s doctrine
    referring to tiers of scrutiny as guidelines informing our
    approach to the case at hand, not tests to be mechanically

  • 33. DJSNOLA  |  May 1, 2015 at 6:50 am

    All very interesting. I dont know if this is the right cases to get heightened scrutiny from. I think it will have to be a Religious Freedom Law.. cases combined with other suspect classes. Maybe a combined case where an atheist an LGBT person and others have been affected. Something that would indirectly force them to address how they view LGBT in light of how religions ad the other heightened classes etc are viewed.

  • 34. Eric  |  May 1, 2015 at 9:03 am

    The root cause of anti-gay discrimination is religious discrimination. Hence the lack of secular arguments against equality for the LGBT community.

  • 35. wes228  |  May 1, 2015 at 7:49 am

    I should have specified: he is not a fan of tiered scrutiny levels in Equal Protection applications. He likes to go with a more generic, amorphous, "animus test."

  • 36. justplainkay  |  May 1, 2015 at 6:55 am

    I would be amazed if the decision addresses the broader discrimination head on – the core questions here have to do specifically with marriage, not broader discrimination and it is the court's strong tendency to put forth as narrow a ruling as possible. I still do believe the decision will be based on due process and am really hoping the court will say that any limit on the choice of who to marry must pass strict scrutiny because it is a limit on the fundamental right to marry.

  • 37. JayJonson  |  May 1, 2015 at 10:23 am

    I expect that the decision will be very similar to Windsor. It will be something more than rational basis, though perhaps not specified as heightened scrutiny. But as in Windsor, lower courts will be free to interpret the level of scrutiny as either "rational basis with teeth" or "heightened scrutiny."

    I expect the decision will emphasize, animus, dignity, liberty, and equal protection.

  • 38. 1grod  |  April 30, 2015 at 2:20 pm

    Raga: History and tradition are the starting point Seeing these words glaring at us, helps to give a clear context to a possibly friendly questions to Ms Bonauto. Millennium, layman dictionary definition, clergy, polygamy, other societies. Why are these seen as unfriendly today. Lawrence was a much larger step.

    VIRik summarized well the Court's recent involvement with marriages cases on another thread: The Oct 6 decision to deny certiorari to the 5 cases from the 4th, 7th, and 10th Circuits and the Oct 10 denial of a stay from Idaho, the Oct 17 denial from Alaska, the Dec 19 denial from Florida and the Feb 9 denial from Alabama as well as the Jan 6 2014 granting of Stay from Utah (Kitchen) and the July 18 granting from Utah (Evans ) suggests these judges know one another’s views very well

  • 39. Raga  |  May 1, 2015 at 10:05 am

    I think Kennedy clearly knows what he must do (as his own precedents counsel), but that doesn't mean that it is easy for him to do so. Given his background and jurisprudence, I sympathize with him. I don't think he wanted to decide this question in the first place. He was perfectly content denying cert and stays, but now the Sixth forced his hand, and I think that he is genuinely struggling with the significant blow to the "tradition" of "millennia" that he knows his decision will strike. I expect his opinion to come down hard on the state bans (classic Kennedy's soaring liberty/dignity language), but sympathetic towards the states (lengthy acknowledgment and reverence to the traditional role of states in regulating marriage as long as it's Constitutional), almost like Windsor.

    This time, I'm tempted to quote from Lord of the Rings (not an exact fit though):

    Galadriel: This task was appointed to you, and if you do not find a way, no one will.
    Frodo: I know what I must do, it's just that… I'm afraid to do it.
    Galadriel: Even the smallest person can change the course of the future.

    Add "because… tradition… millennia… societies…" after/instead-of "I'm afraid to do it." Replace "the smallest person" with "a single Supreme Court Justice" 🙂

  • 40. RnL2008  |  April 30, 2015 at 2:03 pm

    We all seem to be forgetting on very important issue or question here……Why was marriage a FUNDAMENTAL right for all of these years UNTIL Gays and Lesbians started fighting to be included in that right? Yesterday a couple of the Justices mentioned that marriage is a Fundamental right, but somehow for Gays and Lesbians to be denied that right is somehow going to be salvaged under the Equal Protection/Due Process clauses and NOT as a FUNDAMENTAL RIGHT….in fact, the arguments going forward will be shown that ONLY marriage between a man and a woman is a Fundamental right, but for Gay and Lesbian couples it's a right ONLY as it pertains to Equal Protection and Due Process…….the Justices SHOULD have simply SLAMMED the anti-gay marriage folks for DENYING a right WITHOUT a true compelling State interest instead of ONCE again side-stepping the heightened scrutiny issue while pondering to the conservatives in this Country!!!

  • 41. FredDorner  |  April 30, 2015 at 3:35 pm

    That's where the Glucksberg ruling and the scope of the due process right to marry comes in, as well as the discussion about the history of marriage.

    Also note that strict scrutiny of the fundamental right to marry is actually the least advantageous route to take, at least in terms of how this ruling will impact other gay rights issues.

  • 42. RnL2008  |  April 30, 2015 at 9:32 pm

    Interesting……why is that? Why NOT just rule that the Full Faith and Credit Clause states that public records i.e. Marriage License/Certificate are valid in ALL States…..wouldn't that be better than basing the right to marry on Due Process and Equal Protection?

    Frankly, one of the reasons that my wife and I stay here in California is because our marriage is NOT fully equal in various States. This patchwork of rules and laws NEED to be clarified ONCE and for ALL!!!

  • 43. FredDorner  |  April 30, 2015 at 10:40 pm

    It's because it's the better way to win. Strict scrutiny of the fundamental right is by far the narrowest and least generalizable approach.

    Marriage equality will win without a doubt in June. The best approach to do that is heightened scrutiny for sexual orientation since that applies to many issues other than marriage. However I have no confidence at all that the court will adopt heightened scrutiny for sexual orientation.

    It could be that the court will eventually treat all gender-related discrimination under the same broad umbrella of sex discrimination, as is now starting to happen for gender identity. To me it doesn't make any sense to treat sex, sexual orientation and gender identity differently. They should all be treated with heightened scrutiny.

  • 44. brchaz  |  May 1, 2015 at 10:32 am

    Why only heightened scrutiny? Strict scrutiny is better!

  • 45. DrPatrick1  |  May 1, 2015 at 10:45 am

    Sex discrimination is already treated as Heightened, not strict. It is unlikely that adding SO discrimination to Sex discrimination will raise the standard. In truth, it is very hard to discriminate on any basis other than rational basis. As long as we get something else, it should be ok for us.

  • 46. FredDorner  |  May 1, 2015 at 11:10 am

    "Why only heightened scrutiny? Strict scrutiny is better! "

    Because strict scrutiny will ONLY apply to the fundamental right to marry, while heightened scrutiny of sexual orientation will apply to a wide range of issues. Either way the right to marry is secure. In fact neither one is needed for marriage equality since these bans lack a rational basis.

  • 47. 1grod  |  April 30, 2015 at 8:31 pm

    No joke: Judge Scalia its time to recue yourself:

  • 48. RnL2008  |  April 30, 2015 at 8:38 pm

    Both Justice Scalia and Justice Thomas should recuse themselves, but they WON'T and I personally DIDN'T find it refreshing or humorous…….in fact it showed me just how blind those two Justices are regarding the ANIMUS towards us!!!

  • 49. VIRick  |  April 30, 2015 at 11:03 pm

    "Judge Scalia its time to recue yourself:"

    1grod, what a splendid quote! Not only is it definitely time for Justice Scalia to "recue" himself, but it's also probable that it's time for him to recuse himself! LOL

  • 50. SoCal_Dave  |  May 1, 2015 at 12:53 am

    Scalia found it "refreshing" because he wishes he could so freely and publicly disparage us and bleat his religious drivel. Smug hateful jerk.

  • 51. Zack12  |  May 1, 2015 at 2:50 am

    I'm surprised Thomas didn't speak up as well at that point.
    In public speeches he gives, he is only too happy to point out how much he enjoys sticking it to liberals.
    As much of a disgrace to the bench as Scalia is, Thomas is even worse.

  • 52. RnL2008  |  May 1, 2015 at 1:31 pm

    Hey 1grod, This reply is to you, but the site is giving me problems again.

  • 53. 1grod  |  May 1, 2015 at 1:22 pm

    Rose, it surprised me that Scalia for one and Roberts for another tolerated John Bursch's view on marriage.
    Scalia, married to Maureen for 48 years with 9 kids and 28 grandchildren
    Roberts and wife Jane, married 20 years have two adopted children 4 and 5;
    Sonia Sotomayor who is divorced from Kevin after 7 years, has no children
    Stephan Breyer, married to Joanna for 48 years, has three children & five grandchildren
    Anthony and Mary Kennedy married 52 years have three children
    Clarence who have been married 41 yrs, 28 to Virginia adopted his grandnephew and have a son from his first marriage
    Sam and Martha Alito married 30 years have adult two children.
    Elena Kagan is not married and has no children
    Ruth Ginsburg was married to Martin for 56 years at the time of his death. They have two adult children
    Four of these justices have been married over 48 years. Two more married over 30 years. Between them are 23 children, youngest 4 and over 35 grandchildren. It is doubtful they and their spouses view marriage as 'mainly' reproductive.
    Just what upbringing did you, John Bursch, have that would confidently permitted you to mouth such an impoverished view of marriage? Is this the wisdom of 53 years which you plan to pass on to your 5 children when they start dating or talk about getting married? Deep insight!
    Even if for argument sake, all of us were to adopt a State’s interest paradigm, it need not be barren as the notion you presented. Let me reframe the state’s interest so the voter can be clear – Our state encourages you two to marry so that as a committed, life-do-us-part couple you will be able to deflect dependency costs away from us, your government though out your lives and place these cost on yourselves. Great deal!
    John, at best there are 25 years given to child-rearing. Have you thought about the other 25 years of a empty-nest home approaching retirement. Or maybe being empty-nesters has always been the way. Scalia and Breyer would no doubt laugh at the thought that as empty-nesters. either their wives or themselves, are free of family responsibilities. Talk about deflecting cost from the state to the sandwiched generation so they have the opportunity to assume all the labour cost of caring for the couple's parents and their own children. Your at that age! No new competing demands?
    It is extraordinary that those on the bench do not recognize that this generation of young parents have even less of a family support network than was available to them when they were young parents – because of the nature of a mobile society. [Bonauto you could have reminded the judges in days-past a family-home was multi-generational and willed -'passed' to the eldest male.]
    John, you speaks out of both sides of his mouth when you praise adoptive parents as heroic; permitting straight adoptive couples to marry. But no exception for non-straights. BS.. Can you hear yourself speak drivel. Go figure. I hope Roberts feels the put-down, knowing that his wife Jane was present in suffer your platitudes. I also hope his brothers and sisters on the bench can empathize with his embarrassment, when time and again people like the Roberts were being discounted to their face as being "less" worthy of state recognized dignity but patronizingly still praise as 'worthy'. Justice Thomas, you too may have been heroic in bringing your grandnephew into your marital home., Its rumored would deny April DeBoer and Jayne Rowse as adoptive parents the status they seek for their children and themselves. Why?
    John has your spouse ever told you that you are one insensitive hypocrite? No nookie tonight, love! ….But thanks for helping to move those skeptics listening to your "1984" newspeak" to the side of inclusion, tolerance and equality.

  • 54. RemC_Chicago  |  May 2, 2015 at 4:38 am

    Excellent. Editorial for your local paper?

  • 55. NorthernAspect  |  May 1, 2015 at 12:50 am

    Reposting from Equality Case Files:

    UPDATE: Press Release from, Joshua Newville attorney for the South Dakota plaintiffs
    We’ve just been informed that the 8th Circuit Court of Appeals is canceling the marriage equality arguments scheduled for May 12 in light of yesterday’s arguments at the Supreme Court. Given that the 8th Circuit knew all along that the Supreme Court arguments were scheduled for yesterday, we’re not certain why the Court has proceeded in the manner that it has. I know many of my clients, as well as their family, friends, and supporters, spent money on hotels, flights, etc. I also put many hours into preparing for the argument after the Court denied multiple motions to stay the proceedings pending the Supreme Court arguments.

    This process has been a painful one for my clients, and the Court's action today adds to the roller-coaster they’ve been forced to endure. Despite a South Dakota district court victory nearly five months ago, families across the state still suffer daily harm and humiliation as they are denied basic equal rights and dignity. Despite winning their case and showing that they were deprived a basic fundamental right, they’ve had that victory put on hold—the courts effectively telling them that their rights take a back seat to a very lengthy and convoluted appeals process.

    When the Supreme Court denied Alabama’s request to stay the district court judgment pending appeal, it did so after it granted review to the 6th Circuit cases heard yesterday. In doing so, the Supreme Court made clear that same-sex couples and their children should not have to wait another day to be treated with basic dignity and respect. Thus, while I am optimistic about the outcome of yesterday’s arguments at the Supreme Court, I am beyond troubled by the fact that loving and committed couples in South Dakota and North Dakota are denied equality while similarly situated couples in states like Florida and Alabama have marriage equality pending appeals in those states.

    Similarly, my clients in North Dakota had their case fully briefed and presented to the district court there in early September 2014. For over four months, that court did nothing with the case. Then, in January, the Supreme Court granted review in the 6th Circuit cases and the district court in North Dakota put the case on hold, leaving North Dakota as the only federal marriage case in the country not to even get an opinion.

    My clients and their children are just like many families across the Dakotas. Each day that passes that they are continually treated like second-class citizens is a sad day for the States of North and South Dakota, and a sad day for our country. The time for marriage equality is now. We are optimistic that the Supreme Court’s pending opinion will make that clear.

  • 56. guitaristbl  |  May 1, 2015 at 5:01 am

    My thoughts exactly on the issue…They knew SCOTUS was hearing arguments on April when they scheduled the May 12 arguments. And then they cancelled them a day after those arguments as what happened exactly ? Totally irresponsible action from the 8th because as te attorney says they have started preparing etc

    At least the judge in North Dakota put the case on hold as soon as SCOTUS granted cert.

  • 57. justplainkay  |  May 1, 2015 at 7:03 am

    I take this delay as a good sign that the 8th sees the handwriting on the wall.

  • 58. DJSNOLA  |  May 4, 2015 at 6:50 am

    Exactly… I think they knew it was pointless after hearing it, but Im not really sure what they thought would happen anyways. They could have at least saved everyone time and money.

  • 59. Raga  |  May 1, 2015 at 5:09 am

    I'm sorry to take this attitude, but it pains me that they are not doing anything about it – issuing these press releases is all fine, but why didn't they appeal to the Supreme Court asking for the lifting of stays if they truly believed they shouldn't be treated differently by the Court that denied multiple cert petitions and stay requests since October?

  • 60. scream4ever  |  May 2, 2015 at 1:10 pm

    No I agree 100%. I'm about ready to contact the plaintiff's attorneys and see if they are considering it.

  • 61. DeadHead  |  May 1, 2015 at 3:17 am

    Busted! …. Anti-Gay GOP Politician Comes Out After Being Caught Sending Explicit Photos On Grindr “North Dakota state Rep. Randy Boehning (R) has come out as a member of the LGBT community after he was caught sending explicit photos on a gay dating app. Boehning, who voted against a bill earlier this month that would extend housing, workplace and other protections to LGBT North Dakota residents, revealed to The Forum this week that he is attracted to both men and women.”

  • 62. guitaristbl  |  May 1, 2015 at 5:08 am

    The news here are not that a bigoted GOP legislator is a repressed gay man. The news is that he found gay people on grindr in North Dakota.

    Also nickname "Top man!" really ?

  • 63. Eric  |  May 1, 2015 at 9:05 am

    He switched from last week. Give him time.

  • 64. VIRick  |  May 1, 2015 at 1:20 pm

    "The news is that he found gay people on grindr in North Dakota."

    Indeed! That's actually a major legislative and logistical accomplishment.

  • 65. DJSNOLA  |  May 4, 2015 at 6:52 am

    Well at least he admitted it. lol These people are a joke.

  • 66. 1grod  |  May 1, 2015 at 7:57 am

    Pike Co AL Probate Judge Anticipates Approval of SSM Class Action Motion:
    On April 28, County Commissions voted against moving money within the PJ's budget so that a lawyer could be retained to defend the judge ( if need be). A spokesperson for the county said the judge wasn't telling the truth when speaking to the media. Scottie, you need to get back home and help sort this things out.
    <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”> <a href="http://.” target=”_blank”>.

  • 67. 1grod  |  May 1, 2015 at 8:57 am

    Pike Co with a population of 33,000 never offered marriage licenses for same sex couples. Judge W. Allen's initial request got tabled, but on April 28 was turned down. He went public, saying the county’s lack of action of his request showed commissioners’ support for same-sex marriages and was counter to the Christian values and principles the people they represent expect. His anxiety over probate judges being named defendants in a State Class Action lawsuit appears to be at a level where he was willing to placed himself at odds with the county commissions. It apparently has deteriorated to the level where each are calling themselves as liars in the media. My assessment is 1) a judge perceive being a party in a class-action suit is real and imminent. 2) this judge perceives the class action law suit will override the AL Supreme Court mandamus order and Judge R Moore's administrative order. G

  • 68. FredDorner  |  May 1, 2015 at 9:20 am

    While this probate "judge" is correct that it's highly likely Judge Granade will move forward with the class action suit, the county board was also correct not to allocate any funds since he's not yet a named party to the case.

    Also his comments that “I sincerely believe the decision… 100 percent counter to the Christian values and principles of the people they were elected to represent”, are very revealing of the problems which result when a state doesn't require a "judge" to be a member of the bar or have any legal training whatsoever (notwithstanding the example of Roy Moore). I don't know how many other southern states do this but almost all of Alabama's probate judges are just glorified county clerks who also have certain family law judicial responsibilities like adoptions. It's a very weird system. "Judge" Allen has no legal training whatsoever – he's just a Southern Baptist theocrat and a little league baseball coach:

  • 69. VIRick  |  May 1, 2015 at 1:28 pm

    "'Judge' Allen has no legal training whatsoever – he's just a Southern Baptist theocrat and a little league baseball coach:"

    Plus, "Judge" Allen had some name recognition among voters back home in Troy AL after he played football for the University of Alabama.

    But "Judge" Allen is one of the most intransigent ones, as he stopped issuing ALL marriage licenses to everyone as of 9 February 2015, and announced, henceforth, that those seeking one can drive themselves to the next county. So, if the county commissioners of Pike County now want to hang him out to dry, so be it.

    And by the way, this is the same town/county where Roy Moore's son was recently arrested (for the third time) for drug possession.

    "Sweet Home Alabama" makes me smirk every time I spot that insanely ironic expression on one of their license plates.

  • 70. A_Jayne  |  May 1, 2015 at 9:35 am

    While I was typing my original comment asking for clarification, you edited your original comment to add the following:

    "On April 28, County Commissions voted against moving money within the PJ's budget so that a lawyer could be retained to defend the judge ( if need be)."

    When I posted mine and refreshed the page, I saw your edit, so I deleted my comment. In the meantime, apparently you were typing a reply. Sorry for the confusion.

  • 71. Decided_Voter  |  May 1, 2015 at 2:23 pm

    Good analysis of SCOTUS arguments with prediction:

  • 72. jpmassar  |  May 1, 2015 at 7:04 pm

    SUPPORT FOR SAME-SEX MARRIAGE REMAINS HIGH – Quinnipiac University Poll: "American voters support same-sex marriage 58 – 34 percent, with strong support from every party, gender and age group except Republicans, who are opposed 59 – 33 percent, and voters over 55 years old, who support same-sex marriage by a narrow 48 – 43 percent….By a smaller 58 – 35 percent margin, voters say businesses should not be allowed to refuse service to gays and lesbians, even if it violates a business owner's religious beliefs. Again, there is strong agreement among all groups except Republicans, who say 56 – 37 percent a business owner should be allowed to deny service based on religious belief."

  • 73. 1grod  |  May 2, 2015 at 5:52 am

    Dueling opinions in Alabama

  • 74. srinivas1680  |  May 2, 2015 at 10:11 am


  • 75. Raga  |  May 2, 2015 at 1:14 pm

    The SCOTUS clerk behind Baker v. Nelson:

  • 76. bayareajohn  |  May 2, 2015 at 3:29 pm

    Can you give a little summary? The article requires a subscription.

  • 77. Decided_Voter  |  May 2, 2015 at 4:12 pm

    If you search for it directly in Google, you may be able to read it. It worked for me. Just cut and past the heading that shows on the blocked article.

  • 78. bayareajohn  |  May 2, 2015 at 4:43 pm

    Yes, that did work, thanks! Oddly, it's actually the same link, but clicked from GOOGLE, it works.
    For anyone else, the TL;DR
    The clerk at the time couldn't find anything relevant, so he turned over his results with a recommendation of the famous "lack of a question". It was subsequently issued without change. The clerk is presently firmly on our side. There's a subtle SUTTON bashing, and a review of why BAKER is dead and has been for years.

  • 79. Raga  |  May 3, 2015 at 5:02 am

    Thanks for that succinct summary, John. I just tuned in to present a summary and found that you've managed to access it 🙂

    I do believe the Justices will address Baker this time around (at least briefly), because it was the primary reason the Sixth Circuit upheld the bans. (The Sixth Circuit argued that the bans survive rational basis review in the alternative.) As the dissenting judge pointed out, "it lacks only a stake through it's heart" and that stake is imminent in the forthcoming opinion.

    I think the "doctrinal developments" doctrine badly needs clarification in general – as a legal principle, do summary dismissals bind lower courts or not? How is a lower court to interpret what constitutes "doctrinal developments"?

    It would be interesting (but probably not all that likely) if the Court actually endorsed the Sixth Circuit for its staunch adherence to Baker but went on to overrule it anyway. That would be like saying, "Sutton, you were right that Baker still binds you and so your opinion is affirmed in that respect, but as of today, we explicitly overrule Baker AND find no legitimate purpose for the bans, so your holding is reversed." Such a decision would mean that every single lower court that struck down the bans was wrong (about Baker) and lacked jurisdiction to get to the merits – but never mind, their decision on the merits was right!

  • 80. 1grod  |  May 3, 2015 at 11:40 am

    Raga: But for Mary Bonauto's passing reference, providing a chronology, there was no reference to Baker v Nelson. . Last reference in oral argument was Ruth Badger 's 2013 reference in Hollingsworth v Perry: The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. And the 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.". Judges J. Sutton & D. Cook were just looking for a hook to hand their hats upon.

  • 81. Raga  |  May 3, 2015 at 11:55 am

    I agree there wasn't anything during oral argument (but the briefs did address it) – what I mean is that when the Court affirms or reverses a lower ruling, they normally start by summarizing what the lower court's ruling was and then go on to discuss why they were right/wrong. If Kennedy follows this structure, it'll be hard to ignore Baker. Also, not everything that is addressed in an opinion is discussed during oral argument (and vice versa).

  • 82. A_Jayne  |  May 3, 2015 at 6:10 pm

    😉 "Ruth Badger"

    I read that and could just see the notorious RBG grinning ear-to-ear at the reference…

  • 83. SteveThomas1  |  May 3, 2015 at 11:53 am

    I would suspect rather that Baker v. Nelson won't be mentioned. It's actually quite rare for the Supreme Court to actually specifically overrule a previous holding. (Lawrence was a rare exception.) If, as suspected, the Supreme Court issues a ruling holding that the 14th Amendment prohibits same-sex marriage bans, Baker v. Nelson would receive that "stake through its heart" without an explicit mention. The Obergefell case would become binding precedent, even if someone thought it was inconsistent with Baker.

  • 84. Raga  |  May 3, 2015 at 11:59 am

    They may not explicitly overrule it, but they would have to mention it, I'd think, if they follow the usual procedure of summarizing the history of the case and lower court's ruling and why they are affirming/reversing. See my reply to 1grod above…

  • 85. SteveThomas1  |  May 3, 2015 at 12:42 pm

    What they include in setting out the procedural history is largely in their discretion. It's not at all unusual for the Court to state what the lower court *holding* is without discussing the *rationale*. In this case, the 6th Circuit's holding was that the Constitution does not require states to grant same-sex couples marriage licenses or recognize valid marriages conducted elsewhere. Generally, when the Court discusses the rationale of the lower court's decision, it does so to tell the lower court that they got the reasoning of precedents the lower court relied on wrong. In this case, there was no reasoning in the cited precedent (Baker), so there's no need to warn other courts about taking the same tack. A pro-equality decision would simply overrule the very little that's left of Baker, and I don't see them as wasting their time on actually saying so. But of course, I could be wrong.

    It's possible that the Court would discuss the rationale of the 6th Circuit to remind lower courts of the way in which to treat summary affirmances such as Baker, but since pretty much every other equality case in the last two years has dealt with Baker correctly, I wouldn't expect that.

  • 86. Raga  |  May 3, 2015 at 11:36 pm

    "In this case, there was no reasoning in the cited precedent (Baker), so there's no need to warn other courts about taking the same tack."

    Not in Baker itself, but note that the Sixth Circuit spent pages interpreting Hicks v. Miranda, Tully v. Griffin, Inc., Mandel v. Bradley, Rodriguez de Quijas v. Shearson/Am. Express, Inc., and Agostini v. Felton in order to hold that Baker was still controlling. And there is conflicting/ambiguous reasoning in at least two of these cases (if not more) that the Court would have an interesting in clearing out to explain why the SIxth Circuit got it wrong (if it did). It would have to be extremely deliberate for the Court to not mention Baker while explaining where the SIxth Circuit erred in holding that Baker controls (If it did).

    I think this is what you're alluding to in the second paragraph of your comment, but I do expect the Court to clarify, if the SIxth erred, whether and why the Sixth Circuit was wrong in its interpretation of (the long list of) existing precedent in holding that Baker still controls.

  • 87. SteveThomas1  |  May 4, 2015 at 2:33 am

    You write: "It would have to be extremely deliberate for the Court to not mention Baker while explaining where the SIxth Circuit erred in holding that Baker controls (If it did)."

    It would be insane to omit mention of Baker if explaining that the 6th Circuit erred in holding that Baker controlled. But what I'm saying is that I don't expect the Court to say that the 6th Circuit erred in holding that Baker controlled. I expect the Court to say that the 6th Circuit erred in holding that it was constitutional for the four states to ban same-sex marriage. And to do so, they do not need to mention Baker, or the pages in the 6th Circuit opinion discussing Baker, at all. All that's required is a discussion of why the 14th Amendment requires marriage equality.

    Really, everyone knows that appeals to Baker are bullshit. A few courts have been willing to appeal to it anyway. I don't think the Supreme Court will feel the need to further point out what everyone already knows.

    But in two months or so we'll know.

  • 88. ianbirmingham  |  May 3, 2015 at 10:00 am

    Nothing relevant? How about Loving v. Virginia, which was decided only five years earlier?!? The clerk's pathetic "results" memo is here:

    The arguments very correctly included due process & equal protection. The clerk makes literally no attempt to analyze the arguments – none whatsoever – and only says, in essence, "Let's just flush this case down the toilet"…

  • 89. FredDorner  |  May 3, 2015 at 10:24 am

    In her ruling in the Wisconsin case Judge Crabb gave a good review of the procedural issues involved with SCOTUS at the time and notes that all cases which weren't reviewed by the court were treated in this way. It's probably a very good thing this particular case wasn't reviewed given that the court's doctrine on gender discrimination was only beginning to evolve (Ginsburg's win in Reed v Reed was only a few months earlier), most states still criminalized sex between gays, and gays were still being purged from the state and federal governments. Had the court actually ruled on the case it would have set a much worse precedent. Of course in the long run the plaintiffs in Baker have been vindicated and proven correct in all three of their claims, but in this case the clerk did everyone a big favor.

    I wonder how much of this is deliberate strategy by our court system? Everything from case scheduling to the claims presented makes a difference, and we've seen some very deliberate actions in the DeBoer case and the Sevcik case which reveal that the courts are steering for a favorable civil rights outcome, even when those actions appear to be adverse and deliberate stalling.

  • 90. Alphazip  |  May 3, 2015 at 10:32 am

    Yep, I mentioned that on here the other day: use Google to search for any article blocked by a paywall and there's a good chance you will get access.

  • 91. 1grod  |  May 3, 2015 at 12:10 pm

    Will Scotus celebrate and recognize marriage equality?

  • 92. 1grod  |  May 3, 2015 at 5:03 pm

    Leaders of Religious Denominations who characterize same sex marriage as a grave threat to society need to spent more time in the real world. Such marriage are the least of societal problems says Baldwin Co. AL freelance writer, whose denominational affiliation is Catholic. Alabama churches and communities could make a difference if their focus where to be on out-reach to the poor, oppressed, under-educated and addicted as well as to helping neighbors who are challenge with parenting. Some are better focused:

  • 93. josejoram  |  May 5, 2015 at 4:11 am

    What about assisted reproduction? Why nobody even made a short mention about this topic?

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