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.


January 12th, 2015

SCOTUSblog ecstatically authors “Sharp new critique of same-sex marriage rulings” at


January 12th, 2015

Note the language used in the SCOTUSblog piece:

sharply protesting,

one of the strongest dissenting statements yet,

fervent judicial protest,

opinion bluntly argued,

could have the effect of building resistance within the Supreme Court to moving toward a nationwide ruling in favor of such unions,

used much stronger language,

decision so forcefully opposed by the dissenters,


Timothy Kincaid

January 12th, 2015

Although Lyle Denniston nearly wet himself, Diarmuid O’Scannlain’s dissent was neither “forceful” nor inspiring. It was a rehash of the last time he dissented. And the time before.

O’Scanlainn dissented to the decision not to give the Prop 8 ruling en banc hearing. He, himself, called for an en banc hearing on whether gays get heightened scrutiny. He gave a stay to the Log Cabin ruling overturning DADT in California.

He’s not seeking to rule on the law or precedent; he’s just an anti-gay activist in a black robe.

Mark F.

January 12th, 2015


An Appeals Court judge is always supposed to defer to Supreme Court precedent. While I agree that the legal landscape has changed enough to disregard Baker, I don’t see the dissenting opinions here as being all that outrageous.

Timothy Kincaid

January 12th, 2015


I think that the finding by most legal minds that there have been sea-changes since Baker is the more convincing argument.

But I agree that O’Scannlain’s dissent is not particularly outrageous. Nor is it forceful or inspiring. It’s repetitive.

And O’Scannlain has shown himself to be more activist than jurist. Or, perhaps, a jurist who refuses to note that he has lost the debate every single time to date and thus his thinking on the matter might best be reconsidered.

Sir Andrew

January 12th, 2015

Why are even these high level judges unable to recall that the people and their representative government have already dealt with this issue. The product of that work is called the US Constitution. And its various amendments. They act as if the citizens and the government were somehow divorced from the creation of that document; like Federal Express just dropped the package off at James Madison’s door one day, surprising everyone by its sudden appearance.

The people, through their state legislatures and their federal legislators, created and approved the Constitution. Trying to do an end run by having a small group of citizens somehow rewrite that document is so wrong there’s not even a word to describe its wrongness. And a federal judge who contends that this is the path to take demonstrates his lack of jurisprudential awareness as well as his inability to hide his bias behind anything other than this weak argument. (Yes, I made up that word. Don’t judge me.)


January 13th, 2015

This is ridiculous. Have the all forgotten the number of times SCOTUS has overridden state legislators on matters of marriage? Would O’Scannlain have us go back to letting states deny interracial couples the right to marry? Also, it isn’t clear to me why Baker is binding, but the equally brief dismissal of the cases from the 4th etc. circuits isn’t.

Timothy Kincaid

January 13th, 2015

Excellent point, Nathaniel

Mark F.

January 13th, 2015

“Have they all forgotten the number of times SCOTUS has overridden state legislators on matters of marriage? Would O’Scannlain have us go back to letting states deny interracial couples the right to marry?”

Actually, no. He does note that the Court has overruled state marriage laws. And he approves of Loving. However, he just doesn’t think same sex marriage has that degree of Constitutional protection. I assume he puts same sex marriage in the same category as cousin marriages, which are a purely state matter to be decided by the states alone.


January 13th, 2015

Thanks, Mark. But I have to wonder how many close relatives have sought to challenge their state’s limitation on relative marriages. If it is as close to zero as I suspect, then that would be a fallacious comparison to make, since that is not likely to be a matter of law that SCOTUS has settled. Regardless, O’Scannlain’s application of State’s Rights is inconsistent; it would be better to try to argue why state governments have an interest in keeping certain people from marrying than to stick staunchly to State’s Rights and dismiss the individual protections provided by the Constitution. At least then, you have the appearance of being legally consistent.

Priya Lynn

January 13th, 2015

Good point Nathaniel.

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