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This week we have news from Pennsylvania, Arkansas, Utah, Oklahoma, Virginia, Ohio, and Florida. We also had a hearing for the marriage equality cases in the Sixth Circuit on Wednesday.

In Pennsylvania, the clerk who wants to intervene in that marriage equality case had requested a rehearing en banc with the Third Circuit. That request was denied. Will she also appeal to SCOTUS? We'll see. She is out of appeals with regard to the stay.

In Arkansas, the plaintiffs in that marriage equality case have requested that state Supreme Court justices that are up for re-election recuse themselves from the case. In addition, the state defendants have requested that the state Supreme Court stay the proceedings in this case till the SCOTUS rules on one of the marriage equality cases before it.

In Utah, the state defendants petitioned the SCOTUS for a writ of certiorari in the marriage equality case in that state. See sfbob's excellent diary on that development here. And, the defendants in Oklahoma filed a request as well with SCOTUS. Virginia's AG has also appealed the marriage equality case from that state to the SCOTUS. So, the SCOTUS will definitely have an opportunity to rule on marriage equality next term/session.

In Florida, a fourth state judge (from Palm Beach County) has ruled that that state's ban on marriages of same-sex couples is unconstitutional. However, the order only applies to the named plaintiffs. And, AG Pam Bondi has asked the state's Appeals Court for the Third District to stay the proceedings in the marriage equality cases pending resolution of the issue by the SCOTUS.

In Ohio, a district court judge has stayed the remaining marriage equality case in that state that expands marriage rights for all same-sex couples in Ohio pending a ruling by the Sixth Circuit.

In the Sixth Circuit, a panel held oral arguments in six marriage equality cases out of the four states in that circuit. It appears that the ruling will hinge on one of the judges -- Judge Jeffrey Sutton. He seemed quite concerned about Baker v Nelson precedent. He also seemed to think that marriage equality advocates should focus on gaining marriage equality rights through the democratic process (legislatures or public votes) rather than the courts. However, he also made comments that seemed to favor the marriage equality proponents. So, he is a bit of a wild card.

Originally posted to Kossacks for Marriage Equality on Fri Aug 08, 2014 at 12:29 PM PDT.

Also republished by LGBT Kos Community and LGBT Rights are Human Rights.

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Comment Preferences

  •  It never fails. (9+ / 0-)

    Every time I see one of these maps I'm amazed. Every state in play, so much progress in such a short time.

    Of course I realize that behind that progress is years and years of activism. But still. Critical mass is (nearly) here.

    There are, in every age, new errors to be rectified, and new prejudices to be opposed. ~Samuel Johnson (1709-1784)

    by slksfca on Fri Aug 08, 2014 at 12:42:31 PM PDT

  •  Justice Sutton looks like a real swing vote (5+ / 0-)

    He's a young guy (for a federal appellate court justice - just 53) and although he's apparently an outspoken conservative on some issues, he also was a favorable vote on the healthcare law.

    Then again, here's something he wrote just a few months ago:

    For reasons small and large, I favor a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation, making me open to Zackin’s thesis and, yes, vulnerable to the charge that a temporary flood cannot bail us out of a deluge.
    Harvard Law Review

    If I was a betting man, I'd say that our chances for a good outcome are slightly less than even.

  •  I Wouldn't Expect a Guy to Be Much of a Wild Card (5+ / 0-)

    if he thinks such a blatant human rights issue as marriage should be "won at the ballot box."

    Unless there's some kind of overarching rightwing economic principle in play that I can't envision, I'd expect such a character to come down against history just as solidly as he is clearly against reason.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Fri Aug 08, 2014 at 01:08:59 PM PDT

    •  He could just be musing aloud on a principle (3+ / 0-)
      Recommended by:
      librarisingnsf, sfbob, Steveningen

      That he obviously believes in, at least in general terms.  Whether he believes in that principle for something as basic and fundamental as marriage rights - time will tell.

      It's really hard to judge some judges, especially ones that are apparently as bright as Sutton may be (or as he may believe himself to be).  Sometimes they just like to say things out loud in a professorial type of way, but then they decide the case in a completely opposite way.

      And then sometimes, they decide cases exactly as they've telegraphed.

      It would be interesting to hear from someone who practices in the 6th Circuit.

  •  An update...from Tennessee (6+ / 0-)

    This was a state-court level decision against marriage equality. A county circuit court judge refused to grant a divorce to a gay male couple married in Iowa. I can't find the actual decision but all of the rationales used by the judge in his ruling have been debunked repeatedly at the federal court level.

  •  If you'd like to read Herring's filing (4+ / 0-)

    in Bostic vs Schaefer, you can find it here.

    One of the regular commenters at provided a good synopsis and covered the high points.

    At this risk of...well I don't suppose it's a breach of fair use to copy a user-generated comment from another site. I know that several people here, including myself, also post comments at but I don't know whether the individual who posted what I'm quoting below is a Kossack or not. Either way, apologies in advance for stealing his thunder.

    The Summary of the Case is an A plus job in condensing the many moving parts (Kitchen, Perry, Baker, Glucksberg, Rainey, Loving, Zablocki, Turner) that had to be covered including Niemeyer's opposition. Here is a summary from the rest of the brief:

    Targeting Kennedy:

    "Nation-wide, more than 8 million adults identify themselves as gay or lesbian, and more than 125,000 same-sex couples are raising nearly 220,000 children."

    The Best of the Best sentences from previous cases:

         “There is no asterisk next to the Fourteenth Amendment that excludes gay persons from its protections.” [Wolf]

         “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” [Whitewood]

         “These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.” [Baskin]

    Interpreting Glucksberg:

    "Nothing in Glucksberg said that already established fundamental rights should be restricted to the narrowest manner in which they were historically practiced. If that reading prevailed, there would be no “right to interracial marriage,” no “right of people owing child support to marry,” and no “right of prison inmates to marry.”

    Targeting Scalia [this is very funny and almost sarcastic]:

    That reading of Glucksberg would also raise from the dead the narrowest-historical-context theory of substantive due process, born in footnote 6 of Michael H. v. Gerald D., (1989) (Scalia,J.), but killed and buried in Planned Parenthood of Southeastern Pennsylvania v. Casey"
    "Reading Glucksberg to revivify the narrowest-historical-context theory would contradict Casey and likely surprise the theory’s originator, who has repeatedly acknowledged its rejection. “

    Take up this case and not Kitchen [realizing they could cert both]:
    Virginia’s same-sex-marriage ban is one of the most stringent in the country. It goes further than Proposition 8 by barring and refusing to recognize civil unions and by preventing same-sex couples fromadopting children. It also goes further than Utah’s ban, which at least preserves contractual rights exercised independently of the same-sex-marriage restriction.
    " does block any Virginia statute that is “‘plainly repugnant’ to the marriage amendment.”
    Allowing “civil unions” but not gay marriagewould invite fair criticism that “separate but equal” is “inherently unequal.” Brown v. Bd. of Educ. (1954). But Virginia law denies gay people even that begrudging, second-class status.

    This is the right case because the Defendent’s [sic] have standing:

    Challenges to same-sex-marriage laws have foundered on Article III grounds when plaintiffs sued the governor and state attorney general, rather than the local clerk actually responsible for issuing the marriage license.

    I am beginning to see a trend that may become more prevalent and that involves the applicability--or not--of the above-cited Washington vs Glucksberg

    That case pertained to the right to assisted suicide, which the Supreme Court determined did not exist, on the basis that such a right represented a new concept. It's pertinent because many of the recent marriage equality decisions turn on the question of whether the cases are about the infringement of an existing right or the establishment of a "new" "right-to-same-sex-marriage." Needless to say my view is that the former is what is applicable and those courts have ruled in our favor have agreed. However the dissents in both the Fourth and the Tenth Circuit rulings both disagreed with that view and continue to insist that marriage equality involves the creation of a new right. So the distinction may prove to be of great significance going forward.

  •  I find Sutton's concern about Baker (3+ / 0-)
    Recommended by:
    sfbob, librarisingnsf, slksfca

    to be bizarre.  It reminds me of the period after Roemer but before Lawrence when jurists tried to grapple with not getting in the way of Bowers.   Baker is all but overruled by both Windsor and Hollingsworth.  Not explicitly, mind you.  It is in that nether world.  But, there is more than enough dicta in those decisions to justify ignoring Baker.

    Anyone arguing that there's no difference between the parties is a fucking moron who can simply go to hell. -- kos

    by Its the Supreme Court Stupid on Fri Aug 08, 2014 at 02:16:06 PM PDT

    •  Here's the thing about Baker (3+ / 0-)

      It could be argued that by the act of passing DOMA, the US Congress (with the assistance of Bill Clinton) created just the sort of substantial federal question which Baker had said did not exist.

      •  Well, during oral arguments on Windsor, (2+ / 0-)
        Recommended by:
        sfbob, skrekk

        RBG pretty much pooh-poohed the whole thing:

        Cooper: The issues, the constitutional issues that have been presented to the Court, are not of first impression here. In Baker v. Nelson, this Court  unanimously dismissed for want of a substantial Federal  question.

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

        MR. COOPER: That is –

        JUSTICE GINSBURG: And the same-sex intimateconduct was considered criminal in many States in 1971,  so I don’t think we can extract much in Baker v. Nelson.

        Anyone arguing that there's no difference between the parties is a fucking moron who can simply go to hell. -- kos

        by Its the Supreme Court Stupid on Fri Aug 08, 2014 at 02:58:30 PM PDT

        [ Parent ]

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