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Posts for June, 2015

Ted Cruz on the marriage ruling

Timothy Kincaid

June 30th, 2015

Ted CruzIt seems a consensus that junior Texas Senator Ted Cruz is seeking to be our nation’s next President. I disagree.

National Public Radio (NPR) interviewed Cruz about the Supreme Court rulings on Obamacare and gay marriage. In addressing the subject of the interview, Cruz has some interesting opinions about the court ruling on marriage equality that guarantees he will get attention.

He says states can just ignore it.

INSKEEP: Justice Scalia, who, as you, right — you worked with when you were a Supreme Court clerk and who you clearly greatly respect, ended his dissent on same-sex marriage with a warning that the court depends on states and the executive branch, the president, to follow its rulings, to respect them, and he warned that the court was moving closer to proving its impotence.

As you know, there are some Republicans who have been talking in general terms of somehow defying the court’s ruling.

Would you encourage state or federal officials who disagree with that ruling to ignore it or defy it in any way?

CRUZ: You know, you’re right, that the final paragraph of Justice Scalia’s dissent was an ominous paragraph. What Justice Scalia was saying was that these decisions are fundamentally illegitimate, that his colleagues on the court are not following their oaths.

Now, the way our constitutional system works, the courts that have the authority to decide cases and controversies between particular individuals. But there is no obligation on others in government to accept the court as the final arbiter of every constitutional question. Indeed, every officer takes an oath to uphold the Constitution.

INSKEEP: Which is a great story. But did I just understand you to suggest that state officials should feel no particular obligation to follow the court ruling if they feel it’s illegitimate?

CRUZ: They should feel no obligation to agree that the court ruling is right or is consistent with the Constitution.

This ruling…

INSKEEP: But does that mean they can ignore?

CRUZ: They cannot ignore a direct judicial order. The parties to a case cannot ignore a direct judicial order. But it does not mean that those who are not parties to case are bound by a judicial order.

And that’s what Justice Scalia was saying in his dissent, which is that the court depends upon the remainder of government trusting that it is faithfully applying the law and — and these judges and justices are disregarding their oaths.

INSKEEP: Did I understand you to say just now that as you read the law, as you read our system, this decision is not binding on the entire country, only to the specific states that were named in the — in the suit.

CRUZ: Article III of the Constitution gives the court the authority to resolve cases and controversies. Those cases and controversies, when they’re resolved, when you’re facing a judicial order, the parties to that suit are bound it. Those who are not parties to the suit are not bound by it.

Now, in subsequent litigation, other courts will follow the precedence of the court, but a judicial order only binds those to whom it is directed, those who are parties to the suit. That’s the way our litigation system works.

Now, this is what Justice Scalia was talking about in his dissent, which is that it has been the case that on a great many issues, others have largely acquiesced, even if they were not parties to the case.

But there’s no legal obligation to acquiesce to anything other than a court judgment.

Which is, of course, a distinction without a difference. SCOTUS has spoken on the matter and no federal court will rule contrary to the determination of the Supreme Court. Cruz is merely advocating avoidance, delay, chaos, and anarchy.

But fear not oh anti-gays, Cruz has found a solution to the horrible horrible badness of equality under the law. It comes in three parts.

[N]umber one, I’ve introduced a constitutional amendment to restore the authority of the states to define marriage as the union of one man and one woman. Number two, I’ve introduced legislation in the United States Congress to strip the federal courts of jurisdiction for attacks on marriage. The Constitution explicitly gives Congress the authority to strip jurisdiction as a check and balance against judicial overreach.

But number three, this week in response to both of these decisions, I have called for another constitutional amendment, this one that would make members of the Supreme Court subject to periodic judicial retention elections as a very real check.

Cruz’ number one option has exactly zero traction. This is a loser of an idea, as has been demonstrated in the US Senate. Never has an anti-gay marriage amendment garnered more than 48 votes, nowhere near the supermajority of 67 needed to pass. And that was before a number of Republican Senators began endorsing marriage equality.

Cruz’ second step similarly has zero chance of passage. Congress is not going to pull determination about the constitutionality of marriage bans from the federal court system. Such a step, supposing it had any support, would weaken the nation’s trust in our political system and leave the country uncertain as to whether there was any governmental branch to which they could turn to resolve grievances.

Even if by some bizarre chance it were to pass, no President of any party would sign such a bill. No one wants their legacy to be the dismantling of the system of checks and balances.

Finally, Cruz’ third solution is a frightening one. Most reasonable people – even non-political people – recognize that having the judicial review of a law’s constitutionality tied to political whim is a horrible idea. It is the longevity of judicial thought that overlaps administrations and shifts in ideology that protects the nation from despotism.

And further, his idea is founded in delusion. Coming from Texas, Cruz imagines that the views of his bubba buddies reflects the national opinion. He dreams that if only the Justices were subjected to a national plebiscite, then the people would throw out the Supremes who found that the Constitution requires equal treatment under the law and replace them with justices who would reinstate anti-gay marriage law.

He presents this example to support that pipe dream.

CRUZ: It’s worth remembering just a few years ago, the Windsor decision from the Supreme Court. It struck down a referendum that the people of California — now, California is not a conservative state. It is not a red state. California’s a bright, bright blue state. And yet when California put a referendum, just a few years ago, on about the ballot about whether marriage should remain the union of one man and one woman, a majority of Californians voted to preserve traditional marriage.

And then…

INSKEEP: But you don’t think that that vote would — would be different today, given the change in polls in the last several years?

CRUZ: It may well, or it may not. That was just a few years ago.

Ummm… that’s insane.

First off, Windsor did not strike down a referendum of the people of California. That was Hollingsworth v Perry, in which the Ninth Circuit struck down Proposition 8, and the Supreme Court found that the case was moot because after the state pulled its defense of the law, no one had standing to defend it. Windsor found that the federal government had to recognize the marriage of Edie Windsor and Thea Spyer, which had been legally conducted in Canada and was recognized under the laws of New York State as passed by the legislature.

But irrespective of Cruz’ lack of basic facts, he’s also completely wrong about public opinion. Polling on marriage equality in California shows that marriage equality has two-thirds favor. There’s no “it may not” possibility.

Similarly national polling has marriage leading holding support somewhere in the mid 50’s to opposition in the high 30’s. Even were the nation to toss out our long judicial history for Ted Cruz’ craziness, voters almost without exception vote for retention of judges. Even controversial judges. There is no way that the nation would vote out judges because they supported equality.

Which leads me to believe that Ted Cruz is not serious about Presidential aspirations. He’s not saying things that push one down the path to Presidency. Wacko statements like these do not cause donors to support you, papers to endorse you, or fellow politicians to bring their political machine to your service.

They do, however, get media attention and raise your profile in right-wing media. They do fire up the uninformed and earn the adoration of the single minded. As does a “campaign” designed not to win votes but to showcase image.

And, as it turns out, Ted Cruz has a book to sell, A Time For Truth. In the short NPR interview, he manages to mention or reference his book 22 times.

Ted Cruz is not running for President. Ted Cruz is selling a book.

[Updated to correct Cruz’ inaccuracies about Windsor]

And you won’t do what, exactly?

Timothy Kincaid

June 11th, 2015

wapo rant ad

Lately I’ve been hearing a lot from the anti-gay activist world about how they are revolting, rebelling, standing up, and refusing to comply with the anticipated determination of the US Supreme Court that states must give their gay citizens the same rights as heterosexuals. And today the usual carnival of loons ran a full page ad in the Washington Post pleading with SCOTUS to not force them to choose between the state and the Laws of God.

Most of the expected names are there: Phil Burress, Elaine Donnelly, the Wildmons, the Benham brothers, Franklin Graham, Mat Staver, Alan Keyes, Harry Jackson, Jim Garlow. (It was amusing, however, to note that some names like Linda Harvey and Matt Barber didn’t make the cut.)

Together they warn the Court that “we will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.” They “pledge obedience to our Creator” and affirm their definition of marriage.

They whine and wail and throw words about, but they fail to do one thing: tell anyone exactly what it is that they won’t do.

Will they refuse to recognize the validity of our marriages?

That’s fine with me. They can refuse to recognize Ronald Reagan’s marriage to Nancy because he was divorced. Or refuse to recognize Maggie Gallagher’s marriage to Raman Srivastav because they are ‘unequally joined together’ due to different faiths. Perhaps they can even find former Texas Senator Phil Graham’s marriage invalid because his wife is of a different race.

I really don’t care what marriages they believe to be illegitimate. And no one’s standing in their way; they can believe whatever they like.

Will they refuse to officiate at my wedding?

Okie-dokie. The First Amendment protects their right to conduct their sacraments as they choose, and nothing SCOTUS says this month will impact that in the slightest.

Or will they refuse to bake me a cake?

While some here may disagree, I don’t really care if Elaine Donnelly stands in her doorway screaming, “No cake for you!!” I prefer my cakes baked with love and sweetness, not anger and bitterness. Besides, in most of the states that this collection of harpies come from there are no non-discrimination provisions that protect LGBT people. They can refuse cake, flowers, pizza, or any other trappings that they wish and the only thing hurt is their bottom line.

I’ve got to say that I’m used to vague empty rhetoric is the political sphere; but this word salad lacks all meaning whatsoever. Someone please tell me how they are being forced to “choose”? And they are going to refuse to do what, exactly?

Supreme Court Audio from Today’s Oral Arguments Now Available — Updated With Reactions

Jim Burroway

April 28th, 2015

The Supreme Court has posted audio of today’s marriage oral arguments. The first question investigates whether bans against same-sex marriage violate the Constitution of the United States. You can listen below, or click here to download the file as MP3, Windows Media, or RealAudio.

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The second argument pertains to whether states are obligated under the U.S. Constitution to recognize a same-sex marriage that was lawfully obtained in another state. You can listen below, or click here to download the file.

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Transcripts for both questions have also been posted at the above links.

Buzzfeed’s resident self-described law dork Chris Geidner summarizes it all this way:

A 5-4 vote in favor of same-sex couples’ marriage rights appears to be the most likely outcome, although Chief Justice John Roberts’ vote shouldn’t be counted out.

But SCOTUSblog’s Kevin Russell weighs whether a compromise ruling might be in the works:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

On the other hand, Justice Kennedy’s near silence in the second argument suggests that he did not think that the second question was likely all that important. The only significant question he asked was something like “if we assume states have a sufficiently strong interest that they do not have to allow same-sex marriages in their own state, doesn’t that necessarily mean the states have a strong enough interest to permit them to refuse to recognize same-sex marriages from other states?”

Robert Barnes and Fred Barbash at the Washington Post wondered about the split-the-baby scenario as well:

If states are forced to recognize same sex marriages performed elsewhere, Roberts suggested, it would be “only a matter of time” before same sex marriage settled in as the national norm. It would effectively allow “one state” or a minority of states, to “set policy for the nation.”

At the same time, the Roberts’ line of questioning suggested he did not view that possibility with great alarm, at least as an alternative to a court decision holding that all states must permit same sex marriages within their borders.

But back to the possibility of striking the bans outright, we’ve often looked at Justice Kennedy as the critical swing vote. But is Chief Justice John Roberts another possible swinger? Greg Stoher and Mark Drajem at Bloomberg found his questioning worth noting:

Chief Justice John Roberts directed the bulk of his questions at same-sex marriage proponents during the argument. Although Roberts voted against gay rights two years ago, marriage advocates hold out hope of winning his vote this time.

“If you prevail here, there will be no more debate,” Roberts told Mary Bonauto, the lead lawyer arguing in favor of same-sex marriage rights. Shutting off debate “can close minds.”

He added, “people feel very differently about something if they have a chance to vote on it.” Roberts also said the “fundamental core of the institution is the opposite-sex relationship.”

The chief justice shifted course later, suggesting he was open to joining an opinion that didn’t focus on sexual orientation and instead struck gay-marriage bans as unconstitutional gender discrimination.

“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Roberts said. “Why isn’t that a straightforward question of sexual discrimination?”

Libertarians on Equal Protections

Timothy Kincaid

March 10th, 2015

The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.

Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.

Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.

This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.

The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.

Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”

And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:

Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).

The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.

Their blog commentary may put it in more approachable terms

Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.

More on the amicus briefs

Timothy Kincaid

March 7th, 2015

The plethora of amicus briefs have now been filed encouraging the US Supreme Court to find that anti-gay marriage bans violate the Equal Protections and Due Process provisions of the US Constitution. They included

Mayors for the Freedom to Marry. This brief was signed by the 229 mayors from the nation’s largest cities to tiny burgs, from cities with vastly different racial, religious, and cultural heritage, by Republicans and Democrats, along with several dozen towns that signed on.

Corporations. Leaders of the nation’s largest corporations circulated a brief which garnered support from the Who’s Who of business. Most of the names you would expect to see – such as Apple, Microsoft, Target and Wells Fargo – are there. But also included in the 379 names are some less obvious supporters like Alcoa, New England Patriots, and ConAgra Foods.

Project Right Side. Ken Mehlman circulated the brief obtaining support from Republicans, Libertarians and other conservatives. Among the 300-plus signatures are some expected names: Massachusetts Governor Charlie Baker, Senator Susan Collins, and Congresswoman Ileana Ros-Lehtinen. Other names were less expected, such as Meg Whitman, who did not support equality while running for California Governor in 2010, Andrea Saul, Mitt Romney’s press secretary, and Former Michigan Attorney General Mike Cox, the guy who hired Andrew Shirvell. They range from longtime supporters to newly evolved to some I assumed were foes of equality.

Mark your calendar, we’re going to court

Timothy Kincaid

March 5th, 2015

The Supreme Court of the United States has announce that it will hear arguments on the constitutionality of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee on April 28th at 10:00 am (EST).

We will want to pay close attention to the direction of the questions as that may give us a hint as to the outcome.

I’m still betting on a 6 to 3 positive ruling.

House GOP won’t be involved in SCOTUS marriage hearing

Timothy Kincaid

February 5th, 2015


In Spring of 2011, President Obama and Attorney General Holder announced that the US Justice Department would no longer provide legal defense of the Defense of Marriage Act (Section 3) in federal court challenges, as they found it to violate the provisions of the US Constitution. The US Senate also declined to present a defense of the law.

The US House of Representatives, under the leadership of Speaker of the House John Boehner, hired legal representation and provided defense of the law. After several battles, the case came before the Supreme Court of the United States, and in June 2013 Section 3 of DOMA was held to be unconstitutional.

At that time, Republican leadership in Washington relinquished defense of DOMA and declared the matter settled. Boehner indicated that his body would not be engaging in efforts to argue the merits of other statutes or laws in regards to marriage but would act under the presumption that the Supreme Court had made its intent known.

And, for all practical purposes, the issue of same-sex marriage has been a settled one in the Nation’s Capital. It took a while for the administration to identify all areas in which discrimination continued, but the remedies did not face organized opposition.

Continuing in that state of mind, Boehner has now determined that the House will not interfere in the marriage ban appeal now before the Supreme Court nor will the GOP leadership seek to influence its decision. His language also suggests that he will not entertain notions about the invalidity of the court’s ultimate decision. (Blade)

“I don’t expect that we’re going to weigh in on this,” Boehner said. “The court will make its decision and that’s why they’re there, to be the highest court in the land.”

Of course individual GOP members are likely to file an amicus brief supporting discrimination, and some may do so jointly. But they will not do so under the authority of the House of Representatives.

U.S. Supreme Court to Hear Four Marriage Cases

Jim Burroway

January 16th, 2015

The U.S. Supreme Court has agreed to hear the four marriage cases in which the Sixth Circuit turned back an effort to bring marriage equality or marriage recognition in Kentucky, Michigan, Ohio and Tennessee. According to today’s order: (PDF: 43KB/2 pages) the Court intends to keep the arguments focused on two narrow questions:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

Lyle Denniston at SCOTUSblog believes that oral arguments may take place in late April with a final ruling “probably in late June.” He adds:

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

SCOTUS drops Louisiana appeal

Timothy Kincaid

January 12th, 2015

Among the marriage case appeals under consideration last Friday was Robicheaux v. George, in which U.S. District Judge Martin Feldman had found that the state of Louisiana had a “legitimate interest” in prohibiting same-sex couples from marrying. The plaintiffs appealed to the Fifth Circuit Court of Appeals, but also appealed to the Supreme Court to hear the case before the circuit court decision.

The Supreme Court has now announced that it will not be hearing Robicheaux at this time. This is likely not detrimental to the cause of marriage equality, as the case was heard last week by the Fifth Circuit, and nearly all observers predict that the ruling will be overturned by that court.

SCOTUS has also announced that the four cases in which the Sixth Circuit upheld discrimination will be considered at their conference this Friday. As it stands, if any marriage cases are taken up by the court this year, it will be those in which laws singling out gay people for exclusion have been upheld.

No SCOTUS marriage announcement today

Timothy Kincaid

January 9th, 2015

The Supreme Court met today to determine which cases they will accept this year. Among those in consideration were the marriage cases from the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) and Louisiana.

The Louisiana case (which was also heard this morning in the Fifth Circuit Court of Appeals) is one of the few since the Windsor case in which a federal judge has ruled against equality. The Sixth Circuit is the only appellate court, to date, to rule in favor of anti-gay bans on marriage.

There was some expectation that the Supreme Court would release it’s decision to hear one or all of these cases today. However, no such decision has been announced.

This does not mean that the court will not hear any of these cases. Further announcements will be made Monday and could be made any time before the end of the month. The possible outcomes of today’s deliberation could be:

  • That none of the cases are heard. This would leave the nation divided as to whether the US Constitution allows legislation and state constitutional provisions designed to disadvantage gay citizens and deny them equal status under the law. This is unlikely.
  • That one or all of the cases are heard. This would result in another argument before SCOTUS which would probably answer the question once and for all. Marriage equality supporters predict that the court would rule that anti-gay laws are disallowed by the either the Due Process or Equal Protections provision of the US Constitution (or both).
  • That the court reverses the ruling of the Sixth Circuit outright. While this is not terribly likely, it would be very fitting in that it would treat bigotry with the same measure of cavalier distain that it treated equality 44 years ago in the Baker case.

SCOTUS marriage decision looms

Timothy Kincaid

December 23rd, 2014

The Supreme Court has scheduled January 9, 2015, as the date on which to consider whether to hear appeals in five marriage cases. The states from which these cases originate are Tennessee, Kentucky, Ohio, Michigan and Louisiana.

In Louisiana a federal judge ruled to uphold the anti-gay marriage ban, and the other four are in the Sixth Circuit, where the appeals court overturned federal judges who had ruled for equality.

We will not know until next month whether SCOTUS will hear any marriage appeals, but if they do so, it will only be those which are requesting that marriages be allowed. In other words, the court has not scheduled for hearing any appeals which could reverse a state’s current practice of allowing same-sex marriage.

I think that this, when taken with past appeal and stay decisions, may suggest a predisposition on the part of the court to move in the direction of equality.

However, the court has also illustrated a lack of willingness to rule directly on the issue. And this brings up another possibility – though probably not a likely one.

On January 9th – or some point thereafter – the court could take steps to reverse the Sixth Circuit decision without taking up appeal. They could return the cases from Kentucky, Tennessee, Ohio and Michigan to the Sixth Circuit Court of Appeals with instruction that the court more carefully consider or weigh some aspect of the case.

But whichever direction they go, it now seems encouraging that next month will prove to be a rather big step (likely forward) in the marriage movement.

Did SCOTUS just bless heightened scrutiny?

Timothy Kincaid

October 10th, 2014

When Idaho presented its brief explaining why the Ninth Circuit’s ruling overturning the state’s ban on same-sex marriage, it focused on one point. Rather than argue the same tired arguments that have lost across the country and which were insufficient to merit certiorari in the Fourth, Seventh, and Tenth Circuits, Idaho argued that it was the reasoning used in the Ninth, rather than it’s conclusion, which should be reconsidered.

On Tuesday, the Ninth Circuit included in its ruling:

Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), the Sevcik district court applied rational basis review and upheld Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). After we decided SmithKline, the Latta district court concluded that heightened scrutiny applied to Idaho’s laws because they discriminated based on sexual orientation, and invalidated them. Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *14–18 (D. Idaho May 13, 2014). We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

When the Ninth Circuit decided SmithKline, Abbott Labs chose not to appeal the ruling, specifically because it was their wish to leave the section on heightened scrutiny as precedent and not subject it to potential loss at the Supreme Court. So this assertion by the Ninth has not been considered by the higher court.

Which brings the denial of extended stay by the Supreme Court into a different light. It may be that SCOTUS did not predict any likelihood of Idaho’s ban being upheld irrespective of the degree of scrutiny. Or it may mean that SCOTUS sees no likelihood of the Ninth’s application of heightened scrutiny being reversed.

SCOTUS allows marriage wins

Timothy Kincaid

October 6th, 2014


The Supreme Court of the United States has just denied certiorari to the appeals by states from three circuit districts. (ABC)

The Supreme Court cleared the way Monday for an immediate expansion of same-sex marriage by unexpectedly and tersely turning away appeals from five states seeking to prohibit gay and lesbian unions. The court’s order effectively makes gay marriage legal in 30 states.

Without comment, the justices brought to an end delays in same-sex marriages in five states— Indiana, Oklahoma, Utah, Virginia and Wisconsin.

In addition to those five states, in which marriage equality will immediately become law, the other non-marriage states within those circuits are but a formality away. Filing for equality in federal court in states within the Fourth, Seventh, and Tenth districts should result in an immediate favorable decision for West Virginia, North Carolina, South Carolina, Colorado, Kansas, and Wyoming.

The question of the constitutionality of anti-gay marriage bans generally has not yet been determined. SCOTUS could take up other districts’ appeals should they reach the court.

However, it should be noted that the decision to grant or deny certiorari is not a majority vote. It takes but four justices to decide that a court will hear an appeal. This suggests that either the conservative end of the court is hoping to wait for an appeal that better fits their opposition, or (despite long supposition otherwise) there are not four justices on the Supreme Court that oppose marriage equality and find it’s prohibition to be within the confines of constitutional enactment by the states.

The denial of cert to the three districts is not, as I noted, immediately determinative on the other districts. However, it does provide strong legal precedent – unless and until the court indicates otherwise – leaving it difficult for district judges to conclude gay marriage bans have constitutional merit. And, though it is no longer given much attention, it completely invalidates Baker v. Nelson as an argument for precedent.

At this point, it looks promising that marriage may soon come to all states.

Do they even listen to what they say?

Timothy Kincaid

May 13th, 2014

Dean Nelson

Today the Fourth Circuit Court of Appeals heard arguments for and against overturning Judge Arenda L. Wright Allen ruling that Virginia’s gay marriage ban was in violation of the US Constitution (the Olson-Boies case). There were, as expected, protesters on either side.

The anti-gay side made some interesting remarks.

Dean Nelson, chairman of the Frederick Douglass Foundation, told the crowd, “Things have gotten so bad that even when you’re watching ESPN on Mother’s Day we have the kisses of homosexuals forced down our throats.”

Sometimes it’s just too easy.

SCOTUS issues Utah stay (Updated)

Timothy Kincaid

January 6th, 2014


The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.

The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.

UPDATE from Jim B: Here’s the U.S. Supreme Court order (PDF: 27KB/1 page):


The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Marriages entered into thus far are still in effect. There just won’t be any new ones for a while. Lyle Denniston at SCOTUSblog speculates that “The order appeared to have the support of the full Court, since there were no noted dissents,” but “The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.”

The Tenth Circuit Court of Appeals will continue with its expidited review of the lower court decision. Brief submittals occur between January 27 and February 25. No date has been set for oral arguments.

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