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Big doings this week in the Seventh Circuit. Plus, NOM's objections to marriage equality in Oregon get slapped down AGAIN, this time by the Ninth Circuit. Here's GLAAD's version of the map.

As you can see, marriage equality remains legal in 19 states and the District of Columbia. In 13 states the ban has been overturned, and the states involved have appealed that, and the ban is being challenged in court in every other state.

On Tuesday, the Seventh Circuit heard the marriage equality cases from Indiana and Wisconsin. The marriage equality team here noted, as the hearing was set to begin, that the three-judge panel adjudicating them could not have been more favorable to overturning the ban. The diary could not have been more correct! Mark Joseph Stern at has sound clips of Judge Richard Posner's comments to Indiana Solicitor General Thomas Fisher and to Wisconsin Assistant Attorney General Timothy Samuelson concerning their attempts to defend their states' marriage bans. The best from Indana:

After asking Fisher why Indiana shouldn’t just “criminalize fornication” in order to deal with its “unintended child problem,” Posner returned to the child question, demanding of Fisher, “Why do you prefer heterosexual adoption to homosexual adoption?” When Fisher struggles to respond, Posner sighs, “Come on now. You’re going in circles.” He then asks why Indiana wants to punish children because “their parents happen to be homosexual.”
The even better one from Wisconsin:
Samuelson attempts to argue that Wisconsin’s tradition of allowing only opposite-sex marriage is a rational basis for barring same-sex couples from the institution. Posner sinks in his claws, drawing painful, direct parallels between the current case and Loving v. Virginia. The racists who opposed interracial marriage, Posner notes, “make the same arguments you would make.” What’s the difference? When Samuelson releases a bizarre string of nonsense about common law, Posner audibly mutters, “Oh no.”
Tradition! I can't resist. I'm just sorry I don't have Zero Mostel in live performance.

As USA Today noted on Wednesday

Attorneys tasked with defending Indiana and Wisconsin's bans on same-sex marriage faced an onslaught of tough questioning Tuesday from a federal court panel that repeatedly asked whether the bans were doing unnecessary harm to adopted children.
Don't be surprised if the Seventh Circuit releases its decision before the Sixth Circuit, which heard cases from Ohio and Kentucky on August 6, does.

Meanwhile, yet another fail for the National Organization for Marriage, whose attempt to overturn Oregon's marriage equality law failed for the fifth time. Again, the issue was standing; again, the court said it was hard-pressed to see how any of the parties in NOM's suit had standing to object to marriage equality. I can't imagine that, after the Supreme Court's decision on Prop 8, that NOM will find enough judges to grant cert, but given the current makeup of the Court, I could be wrong.

And, speaking of the Court, SCOTUSBlog reported on Thursday that

The same-sex marriage case that is most familiar to the Supreme Court — from Utah — is close to being ready for the Justices to consider it alone or among other cases for review.  Lawyers for three couples — two who wish to marry, and one seeking official recognition of their existing marriage — on Thursday filed a brief supporting review of the already-filed appeal by Utah state officials.


While the Court now has four petitions raising constitutional issues about such state bans, and soon will have a fifth, some of the petitions are moving along more rapidly than others.  The Utah case, the first to reach the Court, may well be ready for the Justices to examine at their first Conference on September 29, just before the opening of the next Term.

Finally, Lambda Legal has a really good summary ofall the outstanding marriage equality cases:
There are currently:

92 pending marriage equality lawsuits in 33 states (AL, AK, AZ, AR, CO, FL, GA, HI, ID, IN, KS, KY, LA, MI, MS, MO, NE, NV, NC, OH, OK, OR, PA, SC, TN, TX, UT, VA, WV, WI, WY) and Puerto Rico.

60 of these are in federal court; 19 of those are on appeal. Petitions for a writ of certiorari have been filed with the United States Supreme Court in 3 of these (Utah, Virginia, Oklahoma). 32 are in state courts; 15 of these are on appeal; and 25 raise federal claims.

There are pending marriage equality lawsuits in all states that do not currently allow same-sex couples to marry, and in all Circuits of the U.S. Courts of Appeals in which not all states allow same-sex couples to marry.

By the end of the next SCOTUS session, I'd guess. It's a VERY complete list, with each of the 92 lawsuits named and described briefly in the appendix.

Originally posted to Kossacks for Marriage Equality on Fri Aug 29, 2014 at 11:00 AM PDT.

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

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Comment Preferences

  •  I listened (9+ / 0-)

    To the Audio of the 7th circuit.  I am gay, I support marriage equality with no caveat. But I kind of felt sorry for the WI assistant AG. It was brutal. His best moment was when it was all over, and he could get the hell out of that court room.

    •  I listened to it too (13+ / 0-)

      Maybe it's my age, but I didn't feel sorry for Samuelson at all. Maybe it's because I teach, but I have very little patience for making stuff up when you have no  facts to support your case.

      Listening was FUN!

      All it takes is security in your own civil rights to make you complacent.

      by Dave in Northridge on Fri Aug 29, 2014 at 11:17:15 AM PDT

      [ Parent ]

    •  I kind of felt sorry for him too (9+ / 0-)

      And I'm also gay. The guy was so completely undone; I've been there; I get it.

      On the other hand he had nobody but himself to blame. He didn't prep adequately for the oral arguments; it should have been pretty obvious what sort of questions he might be asked; other state's attorney's have managed not to humiliate themselves even in the face of these rather obvious questions. Naturally I don't believe that there are any legitimate answers to the questions Judge Posner raised but surely there are better ways of providing even an inadequate response than to either duck the questions completely or say "I don't know."

      •  a lawyer's perspective (12+ / 0-)

        I'm a lawyer.

        The problem here is that the lawyer defending the marriage ban did not—or felt he could not—say "no" to his client, the state. The only honest position the lawyer could have taken was:

        Look, we have no legit argument, but I'm on salary for the state and I can't afford to quit my job, so I'm just here because my boss told me to be here.
        The reason the lawyer couldn't take that honest position is that he would have been admitting violating rules of his state bar and the federal court, both of which forbid asserting arguments you know are bullshit.

        When a client's position has no merit, it's up to the lawyer to explain that to the client, and to refuse to take up the court's time, and increase the opposing party's legal fees, by forcing them to deal with meritless arguments. This is a basic duty in every state bar's rules governing lawyer conduct, and it's also in Federal Rule of Civil Procedure 11.

        Traditionally lawyers get a lot of leeway—especially lawyers for the government. I've dealt with a lot of bullshit arguments from opposing government counsel that I thought merited sanctions for violating the no-bullshit rules, but I've never seen opposing counsel sanctioned for it.

        My perspective is somewhat different from that of the lawyers defending these marriage bans, because I'm in private practice and I get to choose my cases. And in the kind of practice I'm in, I only get paid if I win. So if I decide a case has no merit, I call the client and I say, "I'm sorry, but given the evidence and the law, we have no reasonable shot at winning your case. I will no longer represent you."

        That's easier for me, because I have a lot of other clients, and I don't have to quit my job. But technically the same no-bullshit rules apply to all lawyers.

        "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals."—Barack Obama

        by HeyMikey on Fri Aug 29, 2014 at 11:37:10 AM PDT

        [ Parent ]

        •  Thank you for the perspective (7+ / 0-)

          So an elected state attorney, like Mark Herring in Virginia, is well within his rights when he says he won't defend the state's ban on marriage equality. And one like Sean Reyes in Utah can only say he's defending the state;'s constitution, and he's going to be as hard-pressed as Samuelson was to explain why.

          No-bullshit unless there's a bullshit law supporting it, right?

          All it takes is security in your own civil rights to make you complacent.

          by Dave in Northridge on Fri Aug 29, 2014 at 11:49:20 AM PDT

          [ Parent ]

        •  An interesting perspective here (1+ / 0-)
          Recommended by:
          Joshua Bloxom

          In a piece in yesterday's Washington Post, Dale Carpenter had this to say:

          Gay-marriage opponents have been backed into a vanishingly small empirical, logical, and legal corner in which they have no room to challenge the basic premises of gay equality, no ability to distinguish morally between homosexuality and heterosexuality and, in order to justify continuing to fence out gay couples, they must defend an understanding of the purpose of marriage that is so “artificially narrow” (Judge Hamilton’s phrase) and anemic it would be unrecognizable to the vast majority of Americans living in this or any other century.
          So the question becomes, could any attorney seriously advance such a narrow view of marriage without falling afoul of the no-bullshit rules?
          •  logic vs. experience; courage (6+ / 0-)
            The life of the law has not been logic; it has been experience ... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

            Oliver Wendell Holmes, Jr.
            (one of the greatest Chief Justices of the US Supreme Court)

            What's going on here is:

            * "Homosexuality has traditionally been considered immoral" is no longer considered a good enough reason to discriminate, because there are umpteen cases that say a law isn't valid just because it's based on ancient custom. But—

            * "Homosexuality has traditionally been considered immoral" is still considered a good enough reason for a court to refrain from sanctioning lawyers who defend ancient discrimination.

            We are in a transition period in which old experience is giving way to something new. I was about to say old experience is giving way to logic, but actually I don't think that's it. Instead old experience is giving way to new experience—this is happening because LGBTQIA people came out in great enough numbers that straight people got the experience necessary to learn that LGBTQIA people are, essentially, people.

            Experience is still the driver. And experience, in turn, is driven by millions of individual acts of bravery.

            "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals."—Barack Obama

            by HeyMikey on Fri Aug 29, 2014 at 01:58:34 PM PDT

            [ Parent ]

  •  To make it even better, Posner is a conservative (12+ / 0-)

    appointee of Ronald Reagan.  And this conservative was decimating the anti-same-sex marriage lawyers.  I listened to him deal with the attorneys.  It wasn't pretty for them  

    Posner has also said that he's become less conservative since the Republican party has started becoming "goofy."

    A word to the wise is sufficient. Republicans need at least a paragraph.

    by d3clark on Fri Aug 29, 2014 at 11:20:08 AM PDT

  •  Thanks for this diary, Dave! (3+ / 0-)

    Virginia has gone back and forth so much on marriage equality I was unclear as to its status, so I appreciate this recap.

    I live in hopes that Virginia will be not only "for lovers," as it likes to bill itself, but for married couples, whether gay or het.

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Fri Aug 29, 2014 at 06:35:48 PM PDT

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