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Further delay for briefing in Nevada same-sex marriage appeal

LGBT Legal Cases Marriage equality Marriage Equality Trials Sevcik v Sandoval

Briefing in the challenge to Nevada’s same-sex marriage ban has been delayed further. The new request for delay came from the defendants, who haven’t yet filed a brief in the Ninth Circuit appeal. The Ninth Circuit granted the request on December 20, allowing the brief to be filed 30 days from the date that order was issued.

Lambda Legal, who filed the case and brought the appeal on behalf of same-sex couples, filed their opening brief back in October, but the state and the Coalition for the Protection for Marriage, supporters of the marriage amendment who intervened in its defense, have requested several delays since then. The most recent order would have had them filing a brief on December 18, though now they have until late January.

The plaintiffs, same-sex couples, lost the case in district court and appealed to the Ninth Circuit Court of Appeals. That appeals court is seen as liberal-leaning and pro-marriage equality, having written a now-vacated opinion affirming same-sex marriage in California in the Perry Prop 8 case.

The case is Sevcik v. Sandoval.

Thanks to Kathleen Perrin for this filing

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80 Comments Leave a Comment

  • 1. truthspew  |  December 27, 2013 at 1:03 pm

    Oh man – if at the beginning of 2014 I'd love it if we could get Nevada, Ohio and Virginia. Virginia in particular is interesting to me as it's sort of in the south, and one of it's neighbors is North Carolina.

  • 2. Tyler O.  |  December 27, 2013 at 1:12 pm

    What is it with all these delays in this case? Both sides have asked for additional time for their briefs.

  • 3. Bruno71  |  December 27, 2013 at 1:27 pm

    Did the plaintiffs file for any delays other than regarding the Hawaii lawsuit being dismissed?

  • 4. MightyAcorn  |  December 27, 2013 at 1:34 pm

    As frustrating as these delays are, my guess is they'll help us in the end. If this case is the one that finally gets the "is marriage equality a civil right?" in front of SCOTUS without other confounding issues (like standing in the Prop 8 case) won't it be better for us if more federal and district courts and state legislatures have already affirmed equality? My concern is we still won't get to that tipping-point before Sevcik arrives at SCOTUS, no matter how many delays….

  • 5. Dr. Z  |  December 27, 2013 at 1:49 pm

    It's interesting, Hollingsworth v Perry (and now Kitchen v Herbert) were placed on expedited schedules because we won in the lower courts, whereas Sevcik v Sandoval wasn't expedited because we lost. If that pattern continues, could the first cases to arrive at SCOTUS be the ones where we have the strongest records? Does that even matter? ("Expedited" in the case of Perry meant four years from district trial to SCOTUS decision.)

  • 6. Bruno71  |  December 27, 2013 at 2:19 pm

    The 9th may be slowing things down because they know that the marriage equality justices don't want a case "too soon." Not sure why the 10th wanted to expedite it, but it makes sense given the uncertainty of the current situation for marrying Utah couples.

  • 7. Dr. Z  |  December 27, 2013 at 2:30 pm

    Perhaps it was a consolation prize for denying their stay request. :)

  • 8. palerobber  |  December 27, 2013 at 2:35 pm

    i agree about delays increasing the chances of ultimate success (since more states will move toward equality in the mean time), but i don't think the NV case is free of complicating issues. the fact that NV "gay marriage in all but name" shifts the debate onto less favorable ground. or at least it did pre-Windsor — maybe not so much now.

  • 9. Bruno71  |  December 27, 2013 at 2:47 pm

    Still, there's some room in Nevada that might not be the case in Oregon or Colorado. Businesses are not required by the state to provide health insurance to same-sex spouses. Also, I think there's no official legal ceremony, couples just declare they're domestic partners.

  • 10. bythesea  |  December 27, 2013 at 2:54 pm

    I't definitely in the South.

  • 11. bythesea  |  December 27, 2013 at 2:55 pm

    Oops…"it's"

  • 12. Dann  |  December 27, 2013 at 3:07 pm

    "Married" gets federal benefits, Civil Unions/DP get nothing. HUGE difference.

  • 13. bythesea  |  December 27, 2013 at 3:22 pm

    If it's like a CA DP there is no solemnization, just pay fill out application and get it notarized and send in with the fee (though both partners must be present at the notary public).

  • 14. sfbob  |  December 27, 2013 at 3:49 pm

    If I recall correctly, despite claims to the contrary that were made during the Prop 8 trials, California DPs have different legal requirements from marriage.

  • 15. mtnbill  |  December 27, 2013 at 3:49 pm

    Part of the problem may be the group who is handling part of the State's case is located in Idaho and made many of the same arguments as the Utah AG. Since those have been shot down by the court in Utah, they need some better arguments before the 9th circuit. Even though Utah is in another circuit, judges can read the decision and reference it or certainly its arguments.

    Remember the case starts afresh in the circuit court so one can make different arguments from the district level.

  • 16. Bruno71  |  December 27, 2013 at 3:55 pm

    They did, but in the ruling from the CA SC regarding prop 8, they stipulated that the only difference between "marriage" and "DP" according to state law is the name.

  • 17. SoCal_Dave  |  December 27, 2013 at 4:00 pm

    Agree that they need some better arguments, but too bad for them, there just aren't any to be had! :-)

  • 18. Chad  |  December 27, 2013 at 4:39 pm

    SCOTUS is NOT taking this appeal. the 9th will reverse the district court ruling and SCOTUS will not take it and let it stand. please do not think this is the case that is going to SCOTUS. NO circuit court ruling granting broad same-sex marriage in and of itself is going to be taken by SCOTUS.

  • 19. MightyAcorn  |  December 27, 2013 at 5:06 pm

    I hope you're right, but there's no guarantee. It is probably too soon with Sevcik, but don't you think that, with all the cases all over the country challenging state bans, this will be a question they want to resolve? Or do you think they'll just let marriage equality "percolate" by allowing each circuit to get there on their own?

  • 20. sfbob  |  December 27, 2013 at 5:33 pm

    That was one of the obnoxious things in that ruling. I certainly understood that it's tough to question the constitutionality of an amendment to a constitution, based entirely on that same constitution's contents. Still, would it have cost them all that much to be honest and frank? There are clearly more differences between a California DP and a marriage than just the name and that was true even prior to Windsor.

  • 21. Dr. Z  |  December 27, 2013 at 5:38 pm

    I think we need to distinguish between what we want to happen, and what could realistically happen at SCOTUS. Let's not give ourselves over to wishful thinking. Each side at SCOTUS is going to be looking for the most favorable circumstances for their side. For their side, that would likely look something like Utah where public sentiment is strongly against us, and where the choice facing the court is framed in the starkest possible black/white terms. For our side it would probably look something more like Virginia, where there are neighboring equality states like Maryland and DC that substantial numbers of people commuting to on a daily basis (complicating their lives and heightening the absurdity of the injustice). Virginia is also a good case to take because of Olsen and Boies. Since SCOTUS is going to have to settle this sooner or later, picking the right case may be more important than who won at the appelate level.

    There is also an element of random chance here. It may be that the next equality case to be granted cert at SCOTUS may not be anyone's first choice. Roe v Wade was accepted by SCOTUS because they wanted to clarify a point of law in the judiciary. They did not initially set out to strike down prohibitions on abortion. However, once they took the case and the opinions started being circulated, the case started taking on a life of its own.

  • 22. tom  |  December 27, 2013 at 5:50 pm

    I can't believe some lawyer out there somewhere, that has seen their case, will tell them their NOM talking points are not Constitutional arguments.

  • 23. Dr. Z  |  December 27, 2013 at 5:50 pm

    I'd just like to put in a plug for the EoT fundraiser. This site has the best and most informed commentary on marriage equality anywhere on the internet. Sites like SCOTUS Blog are more professional, but they are not devoted to marriage equality and there's not enough ME-specific content to sustain a regular community conversation. Gay community sites like Towleroad and Joe My God cover news developments, but the quality of the commentary isn't as on top of all the developments.

    I've been a regular commenter here since 2009 and just love and value this community. I chipped in $200. Please help them out with whatever is within your means so that this invaluable resource can continue to serve us all.

  • 24. RobW303  |  December 27, 2013 at 6:38 pm

    "Married" also means your union is recognized in a third of the other states and some other countries, and has standing with a host of non-governmental agencies.

  • 25. Mike in Maryland  |  December 27, 2013 at 10:45 pm

    Remember also that there are many who commute from MD (as I did before retiring, although it was several years after I retired that Marriage Equality was available in MD or DC) and DC to VA for work. People in VA are working alongside people who are eligible to marry (even if they aren't married), but in their home state (VA) they can't get married.

  • 26. Dr. Z  |  December 28, 2013 at 4:49 am

    Did Olsen and Boies include any MD residents as plaintiffs in the VA case, do you know?

    OR and WA are in the same boat.

  • 27. MightyAcorn  |  December 28, 2013 at 8:24 am

    I agree, and add the additional caveat that while many people assume equality nationwide is inevitable, I wouldn't put it past this court to continue to allow regional prohibitions in marriage and employment for a long time. Very frustrating.

  • 28. Marriage Equality Round-U&hellip  |  December 28, 2013 at 9:17 am

    […] USA, Nevada: The Ninth Circuit has delayed the marriage equality trial by 30 days at the request of the defendants. full story […]

  • 29. skrekk  |  December 28, 2013 at 9:20 am

    Bob, I think you're misconstruing or conflating two different rulings. The latter ruling merely said that Prop h8 was put properly on the ballot, the former ruling found DPs unconstitutional precisely because the two contracts were identical (for state law)….and thus there was no reason for the second contract other than anti-gay animus.

  • 30. grod  |  December 28, 2013 at 9:41 am

    RobW303 Ohio's Judge Black found married means you have a right to remain married everywhere in the USA – recognized in every state. There is only one status married, and historically that marriage is recognized throughout USA and by other countries such as Canada by international treaty,.

  • 31. Jacob Combs  |  December 28, 2013 at 10:31 am

    Thank you so much, Dr. Z! Means a lot to us here at EoT.

  • 32. grod  |  December 28, 2013 at 11:01 am

    Chad, ok it isn't going to the Supremes! If you consider that the 9th will rule in Sevcik vs sandoval for the circuit, the 10th will rule in Kitchen vs Herbert establishing a precedent for its circuit, the 6th will rule on right to remain married and be recognized for its circuit, equality is already in place in the 1st and 2nd. That is half the circuits.

  • 33. Mike in Baltimore  |  December 28, 2013 at 1:02 pm

    "For our side it would probably look something more like Virginia, where there are neighboring equality states like Maryland and DC that substantial numbers of people commuting to on a daily basis (complicating their lives and heightening the absurdity of the injustice)."

    Posted by you just above my post. And I showed that some people who live in MD and DC also commute to VA, especially NoVA, to work. You imply that only the reverse is true.

    And for years, I worked with people who lived in VA, but they didn't (and still don't) have the right to marry the person they love in the state they currently call home.

    By the way, except for NoVa (and the VA portion of the DelMarVa peninsula), most people live a considerable distance from MD or DC, with only 1 bridge across the Potomac River (the state line between Maryland and VA for almost all the entire length) South of the DC Beltway between MD and VA (2 if you count the Chesapeake Bay Bridge/Tunnel between the Tidewater of VA and the VA section of the DelMarVa peninsula. DC and to the North is NoVa.). Most of the rest of VA is closer to the non-Marriage Equality states of WV, NC and TN. (FYI – long distance on the East Coast is different in meaning than on the West Coast. On the East Coast, 75 miles is normally considered long distance, but that is not how it is considered West of [especially] the Mississippi. Even in Indiana, 75 miles is not considered long distance for the most part.)

  • 34. Mike in Baltimore  |  December 28, 2013 at 1:17 pm

    Actually, the case does NOT start afresh at the Circuit Court of Appeal. The Circuit Courts of Appeals "only handle cases where a party argues that a district court judge made an error in handling their case."
    (http://www.catea.gatech.edu/grade/legal/circuits.html)

    Thus, whatever arguments are made at the District Court stand, no matter what. No new 'evidence' or argument can be introduced at the Circuit Court level, just arguments on how the District Court judge made mistakes in the handling of the case.

  • 35. Phil  |  December 28, 2013 at 2:57 pm

    The 9th took an axe to Judge Walkers ruling, narrowing its scope. Wonder if the 10th might do the same.

  • 36. Bruno71  |  December 28, 2013 at 3:06 pm

    It's quite possible they narrow it, but when the 9th addressed their case, the landscape on SCOTUS regarding the issue of marriage equality was less known. On the other hand, the 10th may not be as desirous of creating a broad marriage equality ruling as the 9th likely is either.

  • 37. Dr. Z  |  December 28, 2013 at 3:59 pm

    Not sure why you've taken a confrontational tone, my original post was written from the standpoint of the Virginia residents who have the most at stake. You raised what I thought was a good point, that same-sex residents of other states (chiefly MD and DC) who commuted to VA could also possibly show harm; and I raised a followup question, whether any MD residents had been included as plaintiffs in the VA challenge. And, that is all. I was just asking for clarification.

  • 38. Dr. Z  |  December 28, 2013 at 4:42 pm

    This past week the ACLU filed a second lawsuit against Oregon's DOMA constitutional amendment.
    http://www.opb.org/news/article/advocates-in-oreg

  • 39. Bruno71  |  December 28, 2013 at 5:59 pm

    He was referencing the correct ruling (Strauss vs. Horton), in California. The anti-gay animus based ruling was Windsor vs. US.

  • 40. Bruno71  |  December 28, 2013 at 6:07 pm

    "equality is already in place in the 1st and 2nd" I'm going to respectfully nitpick here and point out that Puerto Rico (1st) is still not a marriage equality jurisdiction.

  • 41. Straight Dave  |  December 28, 2013 at 6:19 pm

    The tough thing with that approach is that there isn't the same amount of wiggle room the 9th had. UT is a straight-up equal protection case, no compromises, no separate but equal, no incremental steps to rest on halfway up….. a least not without a really twisted argument. I can't imagine what else the 10th could say, other than "get the hell out of here with that weak shit. Let the marriages begin, no excuses".

  • 42. Two Days of News and View&hellip  |  December 28, 2013 at 6:35 pm

    […] USA, Nevada: The Ninth Circuit has delayed the marriage equality trial by 30 days at the request of the defendants. full story […]

  • 43. Dr. Z  |  December 28, 2013 at 6:49 pm

    That's the challenge. It's too stark.

  • 44. Straight Dave  |  December 28, 2013 at 10:08 pm

    Definitely a clear black/white choice, but the 10th's stay refusal told me they are not terribly uncomfortable with this whole thing. They must have known that would open up marriages for the next 18 months and make it hard to put back in the bottle.

    In their merits ruling they might soft-peddle the wording but retain the essential bottom line. Shelby openly revealed some struggles and conflicts, and I think he got credit for honestly facing them and trying to do the right thing. The 10th would do well to emulate that style.

    Severely watering it down doesn't seem to be in the cards since a justification would be really hard to come by. 2013 blew the country ahead 5 years and once the dust settled it's become pretty much ho-hum, another day another state. NOM has been silenced, GOP has some cracks in the wall, and all politicians are triangulating.
    Stark, yes. Difficult, no.

  • 45. Stefan  |  December 29, 2013 at 2:12 am

    It's likely not going to take 18 months to settle it at the 10th since they have called for an expedited trial.

  • 46. Dr. Z  |  December 29, 2013 at 2:22 am

    I'm not suggesting we should water anything down. The DOMA laws are unconstitutional and should be recognized as such, whereever they exist.

    The challenge I meant is that Windsor had a federalism component as well as a marriage equality one, and as others have pointed out Windsor by itself doesn't go as far as we'd like in establishing ME. It's really a question of legal strategy: do we make a not-too-subtle frontal charge a la Utah, directly challenging the law on the basis of heightened scrutiny even though SCOTUS has seemed hesitant to go there in past cases? Or do we bring a more indirect case, maintaining that the law is unconstitutional due to the odd and unjust consequences it forces on us like the inability to stay married as in the Ohio case? I'm not a lawyer, but it does seem to me that in structuring the argument we would not like to place judges in a situation where they have to hesitate and wonder if they're reading too much into Windsor, too soon. The decision is still new and there haven't been a lot of cases to help establish a framework for interpreting. Judge Shelby said as much – he said he was uncomfortable being in the situation where he was having to be the first one out of the gate after Windsor, so to speak. Personally I'd like to see more Ohio- and Michigan-type cases that are challenging the law through specific effects like nonrecognition of valid marriages and prohibitions on adoptions by unmarried persons than DOMA-is-unconstitutional-because-we-deserve-heightened-scrutiny.

    Just my opinion.

  • 47. Sagesse  |  December 29, 2013 at 3:43 am

    Keen News has an awesome top ten list for 2013:

    2013: The movement’s most successful year
    http://www.keennewsservice.com/2013/12/29/2013-th

  • 48. Sagesse  |  December 29, 2013 at 5:09 am

    A very satisfying season for 'year in review' articles.

    1,530 marriages between same-sex couples recorded in 1st year they were legal in Maine
    http://www.dailyjournal.net/view/story/17a2c9bc91

  • 49. Lymis  |  December 29, 2013 at 5:34 am

    I would only be guessing, but the legal landscape is moving rapidly on them – both sides. Some of the other cases around the country, not to mention Windsor, are making big impacts, if not in binding precedent – which would be a reason to speed up, but in the tone and type of arguments being made and the relative weights of each. Even the early steps of how the Utah situation is playing out may be significant.

    Frustrating, but possibly good for us.

  • 50. Lymis  |  December 29, 2013 at 5:39 am

    I don't have them memorized, but unless I'm wrong, Kitchen is the first time that a district court judge declared flat out that the case implicates a fundamental right which requires strict scrutiny. I definitely don't remember those issues being front and center in previous cases – and they are a direct outgrowth of Windsor.

    Obviously, a losing ruling wouldn't involve a district court saying "Yes, this is a fundamental right, strict scrutiny applies, and you don't get it – you aren't really citizens."

    That fact may be causing the expedite. And, four years is pretty speedy. Mind-boggling, but true. Lawrence, as I recall, took five.

  • 51. Lymis  |  December 29, 2013 at 5:46 am

    They're going to have to take it sooner or later, especially if there is a circuit split. They could, I believe, just keep letting the dominoes fall by not granting cert, which would signal that they accept the rulings that the marriage bans are unconstitutional.

    But if we get a circuit that definitively declares that marriage is a fundamental right of all citizens, that state constitutional bans are unconstitutional, and that all marriages have to be recognized by all states, and another that definitively declares that they are not, and that states do not have to do any such thing, they won't be able to avoid ruling on it for too long – and they know it.

  • 52. Lymis  |  December 29, 2013 at 5:52 am

    There were specific issues unique to Prop 8 that allowed that axe to be wielded. I don't think there's that much that they CAN carve away from the Utah situation. It's pretty clean.

    Whatever we feel about it socially or morally, legally, Hollingsworth was a situation where the state took away rights it had granted to everyone from one specific group of people, without anything resembling justification. We all knew it was about the right to marry, but they were able to look at it as a case about taking away rights unequally.

    There aren't those sorts of things available in Kitchen. I haven't heard anyone saying there are any new twists involved.

  • 53. Rich  |  December 29, 2013 at 8:36 am

    And my husband and I are proud to celebrate that we are just one of the 1,530 same-sex marriages in Maine. After 18 years together, this past July was the crowning moment of a partnership that has helped to raise three sons and welcomed four grandchildren. Life is good.

  • 54. StraightDave  |  December 29, 2013 at 8:57 am

    To clarify… I meant that if UT marriages were going to stop, that wouldn't happen until SCOTUS potentially does it 18 months from now. They still might not do it then, but I don't see the 10th doing it. In any case, we've got at least an 18 month free ride.

  • 55. Stefan  |  December 29, 2013 at 10:57 am

    Oh okay I understand you now. Regardless I will bet a year's salary that marriage is here to stay in Utah.

  • 56. Dr. Z  |  December 29, 2013 at 11:20 am

    Hollingsworth got sidetracked for a year at the California Supreme Court on the standing issue. And in the end, the CA SC opinion didn't matter much anyway, at least not regarding standing in Federal court.

  • 57. JayJonson  |  December 29, 2013 at 11:32 am

    See also the "year in review" at glbtq.com. Windsor gets no 1 position; the Obama administration's swift action in enforcing it, gets the no. 2 position. That section ends with the pointed observation that had Romney won, the federal government would be desperately attempting to minimize its impact rather than extending it. Here is a link.

  • 58. grod  |  December 29, 2013 at 11:38 am

    Bruno. don't the 10th Appeals Court have to address two elements of Shelby's ruling that were contained in the now unconstitutional amendment 3, the right to marry and the right to remain married and have one's valid marriage recognized in the state in which you currently reside.

  • 59. grod  |  December 29, 2013 at 11:59 am

    Dr. Z. I located the October lawsuit: http://media.oregonlive.com/politics_impact/other… but was not able to locate the State's response or the second suit. I was surprised in the October submission there wasn't a reference to Windsor.

  • 60. grod  |  December 29, 2013 at 12:04 pm

    Rich " just one', maybe but in those 18 years you apparently have also been an awesome educator and advocate.

  • 61. Dr. Z  |  December 29, 2013 at 12:09 pm

    It's been hard to find out what's happening in these lawsuits – they've been flying under the radar with so much attention being devoted to the Nov 2014 ballot initiative. Personally I think Basic Rights Oregon should have mounted an aggressive legal challenge as soon as Windsor came down, but they've been very reluctant to do that. I'm sure the prospect of bringing in millions of dollars to their coffers to wage the fight had "absolutely nothing" to do with that decision.

    If these two challenges go forward as expected, the state won't put up much of a fight and won't appeal if as expected DOMA is struck down. I'll eat my hat if Oregon's DOMA is still in force come Election Day 2014.

  • 62. grod  |  December 29, 2013 at 1:56 pm

    Dr. Z I asked the law firm for links: http://thelawworks.wordpress.com/2013/10/17/law-w
    and re the new case: https://www.dropbox.com/s/t0ohhnvigngfn0j/13%2012

  • 63. Mike in Baltimore  |  December 29, 2013 at 1:57 pm

    I didn't take a confrontational tone until you did. What I was trying to show you took offense to was that there are a LOT of people who commute from MD and DC to VA, and work alongside people who cannot get married in the state they call home. You implied that it was a one-way flow from VA to MD and/or DC. It is not. See http://cra.gmu.edu/pdfs/CRA_Census_Series_Commuti… . Also, http://www.washingtonpost.com/local/washington-ha… .

    Except for NoVa and the VA portion of the Eastern Shore, MOST of VA is NOT close to MD or DC, but closer to the non-Marriage Equality states of WV, NC and TN. And I forgot to mention KY.

    Also, if "just asking for clarification", why the comment that "OR and WA are in the same boat"? They are not, since there is an almost equal number of people from VA going to MD and DC as the reverse. More people from WA go to OR in the Portland area than the reverse, and the rest of the state line has a more equal commuter flow.

    By the way, your very first comment about Olson and Boies taking a MD couple? The case is in VA, FAR distant from MD or DC, and is IN VA, where the VA state law is being challenged. Why should a couple from MD or DC challenge a VA state law when there are lots of VA couples directly affected by, and available to challenge, a VA state law that does not directly affect the MD and/or DC couple?

  • 64. Pat  |  December 29, 2013 at 2:47 pm

    Lol, Mike, I wonder: can you be even more obnoxious in 2014? It seems you outdo yourself month after month…

  • 65. Bruno71  |  December 29, 2013 at 3:37 pm

    Yeah because there's 1 couple suing for recognition and 2 suing for ceremony rights within Utah. I'm sure there are some ways the 10th can narrow Shelby's ruling, but they would at least have to address the grievances of all plaintiffs involved.

  • 66. Lymis  |  December 29, 2013 at 4:09 pm

    I agree with what you say, but it doesn't all hinge on Windsor.

    Windsor may highlight some issues, but it comes down to the fundamental questions of whether same-sex couples who marry are doing the same thing as similarly situated straight couples – essentially, mutually infertile ones, who may still choose whether or not to adopt, whether or not to have a child with another partner (or enter a marriage with children from a previous marriage), or not have children at all.

    If what we are doing is marriage, all the precedents of marriage cases apply.

    Similarly, are gay people citizens, and if so, what possible justifications are there for all the state anti-gay laws under the 14th Amendment?

    Lawrence and Windsor made deep inroads into clearing away some of the things in the way of that analysis, but things like whether marriage is a right or how states can discriminate against minority citizens are hardly new issues, and shouldn't be treated as such.

  • 67. grod  |  December 29, 2013 at 5:43 pm

    Ohio's Judge Black in Footer 10 p 19 says: the Supreme Court consistently describes a general “fundamental right to marry” rather than “the right to interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to marry.” Earlier in the same footer he reminds us that "While states do have a legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs to the individual. Thus, “the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made".
    However like Dr. Z I believe battles must be chosen. My current answer to which battle is achievable now it is the recognition of the fundamental right to remain married and have that valid marriage recognized by every state. If AG have done this recognition by way of an opinion (Oregon), or if recognition by court decision (Ohio) does not result in a stayed while awaiting appeal, why not make it priority # 1. All these people would thereafter have access to federal and state benefits.

  • 68. Rich  |  December 29, 2013 at 6:04 pm

    Thanks grod.

  • 69. grod  |  December 29, 2013 at 6:23 pm

    Ohio's Judge T Black says that an affront to a fundamental right – marriage as an aspect of the right to liberty, always requires strict scrutiny. He goes on to say [pg. 12] While the right to marriage recognition has not historically been labeled “fundamental,” in the Supreme Court cases establishing the highly-protected status of existing marriage, family, and intimate relationships, the Court has applied an intermediate standard of review.

  • 70. Bruno71  |  December 29, 2013 at 6:52 pm

    We can talk about "priority #1," but the truth of the matter is there are dozens of cases now in dozens of jurisdictions. All will be dealt with uniquely by the corresponding District and Appeals courts, and possibly SCOTUS. To a large degree, this cat is out of the bag, and out of our control.

  • 71. Straight Dave  |  December 29, 2013 at 7:12 pm

    You should contact Brian Brown to see if he'll take you up on that.

  • 72. grod  |  December 30, 2013 at 2:35 am

    Bruno Thank you for reminding me. Your post lead me to this list: http://www.marriageequality.org/lawsuits. G

  • 73. ebohlman  |  December 30, 2013 at 6:00 am

    Actually the situation with OR and WA is different because OR is now recognizing out-of-state marriages, so WA residents don't get temporarily divorced by commuting to OR.

  • 74. ebohlman  |  December 30, 2013 at 6:06 am

    Same with the US Virgin Islands. However, there aren't any cases currently in the pipeline from those jurisdictions and no signs that I'm aware of that any are going to emerge soon.

    I strongly suspect that the 6th's decision will be based on an appeal of the Michigan case (De Boer v. Snyder) rather than the Ohio one, since the Michigan plaintiffs are asking for much broader relief (also, the MI case is going to an actual trial).

    In fact, all four states in the 6th (MI, OH, KY, TN) have cases that are either pending or decided.

  • 75. ebohlman  |  December 30, 2013 at 6:14 am

    Nope, conclusions of law are subject to de novo review on appeal. It's only findings of fact that are presumptively unchallengeable (on grounds of improper discretion by the trial judge). However, all the cases we're talking about except the Prop 8 one were summary judgments, meaning that they were purely conclusions of law (since none of the parties claimed there were issues of fact and none of the judges believed that there were unstated issues of fact that needed to be resolved).

  • 76. Paul S  |  December 30, 2013 at 9:43 am

    FWIW, most of the comments that I've seen from people in Utah are supportive of marriage equality. I've not seen any reports of huge protests in the streets from the district court ruling. I've not seen any reports of much of anything at all. If this is the most "outrage" that is likely to come from a ruling striking down gay marriage bans, then I think that it's actually good for our side.

  • 77. Bruno71  |  December 30, 2013 at 9:47 am

    I believe the VI are under the 3rd Circuit, along with Pennsylvania.

  • 78. Paul S  |  December 30, 2013 at 9:48 am

    Windsor didn't have a federalism component. I don't think the 10th amendment was even mentioned. The decision rested on the 5th amendment and the right of equal protection of our laws.

  • 79. grod  |  December 30, 2013 at 11:42 am

    Oregon AG Oct 16 '13 opinion – p 6: "We cannot identify ANY defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state—marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes. Likewise, we cannot identify any legitimate (much less compelling) state interest in requiring that each marriage recognized in Oregon contain one partner of each sex; no benefit to Oregon results from that limitation, and no injury would result from recognizing the marriage. Opinion {Exhibit A] appended to 2/3 items in first link, and referred to in the second link [newly filed case] that Dr. Z mentions above – pg 2.

  • 80. Justice Now  |  January 5, 2014 at 7:50 pm

    The new ACLU lawsuit lists Basic Rights Oregon as a plaintiff. And now they have filed to consolidate their johnny cum lately case with the existing case. I wonder if this is a strategy to derail the current lawsuit to ensure the continued prospect of bringing in millions of dollars to their coffers.

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