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Tenth Circuit is asked to put Oklahoma and Utah marriage equality cases on a parallel track

LGBT Legal Cases Marriage equality Marriage Equality Trials

Tulsa County Court Clerk Sally Howe Smith is asking the Tenth Circuit Court of Appeals to fast-track the Bishop case, challenging Oklahoma’s same-sex marriage ban. Federal District Court Judge Terence Kern struck down the ban last Tuesday, and the Tulsa County Clerk filed her notice of appeal days later.

The request was filed shortly after Utah officials asked for a ten-day extension to file its opening brief in its own attempt to fight off a challenge to its same-sex marriage ban. The Utah request discussed the possibility of putting the two Tenth Circuit cases on the same track and the same three-judge panel, and the Tulsa County Clerk’s motion echoes that sentiment.

The Oklahoma case, the brief suggests, “raises similar issues to those presented in the Kitchen appeal; thus expediting the briefing schedule in this appeal, assigning this case to the same panel that will consider the merits of the Kitchen appeal, and permitting the joint filing of amicus briefs in both appeals will promote efficiency for this Court and the parties.” (The Utah request had noted that “the Court may want to place the Utah and Oklahoma appeals on similar briefing and argument tracks to conserve judicial resources and the resources of amici who will have the same interests in both matters.”)

The filing argues that both appeals raise issues about whether Baker v. Nelson is binding, whether Windsor was a federalism decision or not, and other questions.

The county court clerk “does not request a formal consolidation with the Kitchen appeal because it would not be feasible for her to comply with the already-established briefing schedule in that case, which would require her to file an opening brief by January 27, 2014,” the filing says, although it seems possible that if the time is extended in the Utah case, Oklahoma would have enough time.

As we reported previously, the Tenth Circuit’s March calendar from March 17-20 has been filled out, and Kitchen is not yet scheduled. The Tenth Circuit’s website says hearings in March will begin on the 17th and end on the 21st. The Tenth Circuit has previously cautioned against delaying the Utah appeal.

Thanks to Kathleen Perrin for this filing

For more information on Bishop v. United States from The Civil Rights Litigation Clearinghouse, click here.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!

88 Comments Leave a Comment

  • 1. icapricorn  |  January 18, 2014 at 8:39 am

    The judge makes a provocative observation in note 33 of the Oklahoma decision. It's a long note and takes up nearly all of page 48 of the decision. He writes:

    "First, whether or not the right in question is deemed fundamental turns in large part upon how the right is defined. If the right is defined as the “right to marry,” plaintiffs have thus far been more likely to win the argument…[he cites cases and quotes judgements to support this.]

    However, "If defined as the “right to marry a person of the same sex,” plaintiffs have thus far been more likely to lose the argument." [again citing cases and quotes].

    I wonder what readers think of this analysis. Particularly our lawyers.

  • 2. Lymis  |  January 18, 2014 at 9:28 am

    Not a lawyer.

    I think that's a pretty accurate analysis, at least of the history. When gay people are seen as strange foreign creatures doing "unnatural" acts and having "perverted" relationships, criminalizing it all seems perfectly within the scope of things.

    When we are seen as people who choose to engage in a purely voluntary alternate choice of lifestyles, not according our own made up special relationships the same rights and dignity of the kinds of real relationships normal people have seems unremarkable.

    When we are seen as people who, because of a normal variation of the human experience, seek to engage in the same relationships and family structures as everyone else, the it no longer makes sense trying to justify why we should be treated any differently from anyone else.

    More and more people are understanding that we aren't creating a new form of marriage, and that what same-sex couples seek to do within marriage and via marriage fits perfectly well into the range of what opposite sex couples already do, whether it involves children or not. And so it becomes harder and harder to justify excluding us.

    I think that the anti-gay folks have known this all along – look at the nature of their arguments. It's always either that what we are doing isn't marriage (because it "redefines" or "attacks" marriage, that they describe as "traditional" or "natural") or because we have nefarious motives like attacking religion or destroying society or wanting protective cover for recruiting children into perversion. We can't possibly just want what everyone else wants.

    But the combination of the Lawrence and Windsor rulings, with support from things like Griswold, Loving, and Romer, make it clearer and clearer that the majority doesn't get to declare unilaterally that what we are doing is different for the express purpose of barring us from it. That our relationships are legally real, our dignity constitutionally protected, and our rights as citizens as fundamental as anyone else's.

    Once you get rid of "Gay? Ick!" the rest of our rights follow naturally. It's what the Supreme Court has so far avoided bluntly saying, though they are spiraling closer and close to it.

    Are we really people? And if so, are we really citizens? And if so, what justification is there for our not being equal?

  • 3. Rose  |  January 18, 2014 at 9:28 am

    Frankly either marriage IS a Fundamental right for ALL regardless of gender make-up or it's ONLY a Fundamental right for opposite-sex couples and somehow I doubt that is what SCOTUS intended when they made that ruling!!!

  • 4. Anthony  |  January 18, 2014 at 9:43 am

    The problem is we have always been a concealed minority until recently. So now the current laws banning marriage are seen as an injustice to all gay and lesbian people. I think SCOTUS came to this realization while reading the briefs on the DOMA/Prop 8 decision.

  • 5. Bruno71  |  January 18, 2014 at 10:27 am

    We should note that in this Oklahoma case, a county clerk is the defendant with standing to appeal. Oklahoma's bureaucracy in charge of marriage licenses seems to be different than that of California. A county clerk is also the defendant in one of the Virginia cases, so they may have standing to appeal there as well.

  • 6. bythesea  |  January 18, 2014 at 11:06 am

    Has it been established that a clerk alone would have standing (as far as SCOTUS is concerned) ?

  • 7. Richard Weatherwax  |  January 18, 2014 at 12:05 pm

    I came across the following news item by accident. I found it funny:

    UKIP councillor blames storms and floods on gay marriage http://www.bbc.co.uk/news/uk-england-oxfordshire-

  • 8. Lymis  |  January 18, 2014 at 2:07 pm

    I'd have to look to be sure, but I'm pretty sure the same was true in Illinois. The Cook County Clerk has been a pretty tireless supporter of gay equality and asked to be sued so the case could go forward. I might be wrong on the details.

  • 9. Stefan  |  January 18, 2014 at 2:24 pm

    -Illinois was in state court, which generally has much more lax standards on standing.

    -the Oklahoma case is being defended by the state, which likely will not be the case in Virginia.

  • 10. Carol  |  January 18, 2014 at 2:30 pm

    Then how does he explain California's drought?

  • 11. Richard Weatherwax  |  January 18, 2014 at 2:59 pm

    Storms and floods in Great Britain, a drought in California: What more evidence do you want?

  • 12. Mike in Baltimore  |  January 18, 2014 at 3:39 pm

    In Maryland, for a bill to be signed into law, the requirement is for the Speaker of the House of Delegates AND the Senate President sign it along with the Governor. Many times, the Speaker and Senate President sign the bill before sending it to the Governor, but not always.

    In other states (California, for instance), when the Governor signs the bill, it is law, whether the Speaker and/or Senate President sign the bill or not.

    In short, each state has it's own laws, rules and regulations for how a bill becomes law, who does and who does not have standing, can sign a bill into law, etc.

    As another example, in Maryland, when a Governor sends a proposed budget to the state legislature, the legislature can only cut, not increase, that budget, or OK it as is. Most other states allow the legislature to cut, hold, or increase the proposed budget amounts.

  • 13. bythesea  |  January 18, 2014 at 3:54 pm

    Understood of course, but standing in a state system does not always mean standing in the view of SCOTUS (like in the Prop 8 case).

  • 14. Steve  |  January 18, 2014 at 4:02 pm

    In light of courts striking down bans on interracial marriage, it needs to be seen as the right to marry the person of one's choice. And that shouldn't just be reduced to Loving v. Virginia. The CA Supreme Court had some good things to say about that two decades earlier in Perez v. Sharp.

  • 15. grod  |  January 18, 2014 at 4:10 pm

    In OK Bishops case, in the filing with the 10 Circuit Appeal Court, Smith says: "Plaintiffs’ counsel has indicated that Plaintiffs may file a cross-appeal with respect to one portion of the District Court’s ruling." What is that about – does it relate to Judge T. Kern's "no standing" decision re the Burtons?

  • 16. Weaver  |  January 18, 2014 at 5:01 pm

    I'm still confused why the 9th circuit turned to the Ca. Supreme Court to ask them who had standing to appeal the original Prop 8 ruling by Judge Walker. A Federal court asking a state court, who had standing to appeal in Federal Court? It made no sense to me then, and it still makes no sense to me now.

    Now the Ca Supreme Court ruled the 2 county clerks who had stepped forward to appeal the Walker ruling did not have standing, but that the people who first got 8 on the ballot did, and that was how the case went forward in front of the court of appeals. SCOTUS disagreed that the people who were allowed to bring the appeal had standing, but to my knowledge said nothing in their opinion as to whether the county clerks should have had standing. Had they said the clerks had standing, I would think a conservative county clerk from somewhere in California would have stepped forward by know to appeal Walker's ruling, which amen has not happened.

  • 17. mtnbill  |  January 18, 2014 at 5:37 pm

    The CA supreme court was asked because the Governor and AG did not want to appeal the district court decision. The 12th District had already had an issue overturned from AZ on who could appeal if the state did not. The 12th District asked the CA Supreme Court if the proponents of the initiative whether they had standing. Judge Walker's decision had questioned whether the proponents, who do not officially represent the state, only themselves, had standing.

    Under CA rules, proponents state initiatives can appeal in CA courts. The question was unclear in federal courts since only a party who is harmed can sue.

    The US Supreme Court held that the proponents of prop 8 did not have standing since they do not represent state interests–hence the only decision left at the end of the process was Judge Walker's–since the CA Governor (both Brown and Schwartzenegger) and AG declined to take the process further.

    The CA county clerks were dismissed because they only process the paperwork at the direction of the CA Health dept. That was the position the CA Supreme Court held when the City of SF decided to issue marriage licenses and the CA Supreme Court ruled that the City had no authority to do so and that the marriages performed were not valid. The CA Supreme Court later ruled that same sex marriage was valid, and those marriages which took place AFTER than ruling were permitted. Later prop 8 passed which stopped the the process until the courts ruled on Prop 8.

  • 18. steveL  |  January 18, 2014 at 6:18 pm

    please be advised that Sally is the Court Clerk o fTulsa County and not the County Clerk of Tulsa County. Two different people

  • 19. Bruno71  |  January 18, 2014 at 6:35 pm

    I think it would vary by state. To answer your question, it probably hasn't been finally established by SCOTUS, but given that the Oklahoma clerk is the person who should act as defendant in this case as ascertained by the federal district court, I think it's unlikely SCOTUS would have any reason to find that determination was in error. My (admittedly sketchy) understanding is that Oklahoma's marriage licenses are the purview of the clerks, which fall under the judiciary, not the executive. Recent developments in one of the Virginia cases lead me to believe it may be the same or simliar there.

  • 20. Bruno71  |  January 18, 2014 at 6:45 pm

    If I'm interpreting you correctly, I think the 2 county clerks you're referring to are Storey from Imperial County and Dronenburg in San Diego. When the prop 8 case was brought, no county clerk was a named defendant in the case, because it was determined that the governor and AG (the executive branch) were the proper defendants. In the 2004 Lockyer marriages case, the executive branch was determined to have authority over county clerks and subsequently the issuance of marriage licenses.

    Storey's role a few years back was to try and get in on the case so that standing might be achieved when it was learned that Schwarzenegger and Brown (and later Harris) were not interested in appealing. He was denied by both the District Court and the 9th Circuit.

    Dronenburg could not actually appeal the original prop 8 case for the same reason as Storey: he wasn't a defendant in the case. I thought it might be possible a new case could be brought by him to challenge the scope of Judge Walker's ruling, but it never materialized. I think he just wasn't up for the (losing) battle.

    The federal court asking the state court that question made some sense, in that one could say that California might have a broad hand in determining who can represent the state in an appeal. SCOTUS (narrowly) disagreed that California could allow the ballot questioners to represent the state, but it was an open question until that judgment.

  • 21. Rose  |  January 18, 2014 at 7:13 pm

    However, NO clerk was allowed Standing in the Prop 8 case and neither should a LONE County Clerk have standing in either of the other cases…….why? Because the State overall is responsible for the issuing of Marriage licenses……NOT just one, see the case that is happening against the County Clerk in PA……..this is were confusion can set in and delay these cases!!!

    Oh and Utah has already asked for a continuation even though the Court STATED NONE would be granted and the Clerk in Oklahoma is hoping for one because she CAN'T get her briefs together in time…..sorry, wrong answer!!!

  • 22. Dr. Z  |  January 18, 2014 at 8:27 pm

    The clerk of Alameda County was also a defendant in Perry.

  • 23. Scottie Thomaston  |  January 18, 2014 at 8:57 pm

    D'oh you're right I just reread the filing. Read the name too fast!

  • 24. grod  |  January 18, 2014 at 9:03 pm

    I would imagine the Burtons [ Vermont civil union (2001) and Canadian marriage (2005) and California (2008)] who Judge Kean dismissed for want of standing would be delighted if the UT and OK cases proceeded in parallel before the same Appeal Court panel. An element of the Judge Shelby's decision relate to out-of-state marriages, what Judge Kean refers to Part B of the 2004 OK constitutional amendment. Judge Kean told the Burton that an attack of Section 2 of DOMA is misguided. Its but a figleaf. Your focus ought to have been Part B of the Amendment. Its as vulnerable as Part A for being declared unconstitutional using the same arguments a were marshaled against Part A. The Burtons are seeking the right to remain married and have their two time valid marriages recognized by their state of residency. Each spouse has resided here for fifty years and continuously together for almost 30 years.

  • 25. StraightDave  |  January 18, 2014 at 9:04 pm

    This excerpt from the Loving opinion sure suggests to me that it's none of the Gov't's damn business who you marry.

    "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. "

    It's just one more baby step from there to ME for all.
    "…on so unsupportable a basis …"
    "The freedom to marry… resides with the individual."

  • 26. Sean fron NJ  |  January 18, 2014 at 11:08 pm

    I don't think the Supremes want anybody who is not an elected official that represents an entire state to have standing.

  • 27. Bruno71  |  January 18, 2014 at 11:50 pm

    That's true. Which leads me to wonder, what if a clerk was sued in a state like Oklahoma and didn't want to appeal the case? That'd be very strange to have a decision like that in the hands of a clerk.

  • 28. Lynn E  |  January 19, 2014 at 1:03 am

    I think the reason behind asking the CA court to clarify standing was because a previous 9th Circuit case (Arizonans for English, as I remember) was overturned by SCOTUS precisely because the state had not clarified standing. Basically, they did what SCOTUS required, and it still made no difference.

  • 29. Stefan  |  January 19, 2014 at 2:00 am

    The 9th wanted to rule on the merits of the case, thus setting it up for a nationwide ruling in favor of marriage equality. Obviously it didn't go their way.

  • 30. Steve  |  January 19, 2014 at 4:22 am

    Of course the "fundamental to our very existence and survival" part is some very annoying, hyperbolic BS.

  • 31. grod  |  January 19, 2014 at 6:47 am

    Stefan – in NM did not the "Association" of County Clerks seek and receive standing?

  • 32. Sagesse  |  January 19, 2014 at 6:48 am

    I have always thought that 'marriage is a fundamental right' should be read as the right to 'marry', an individual right, not the right to 'marriage', which is a 'couple' right. You are born with the fundamental right to marry, you have it, even when you are not able to exercise it… before you reach the age of consent, or have not exercised it… have not yet found the right person to marry, and that person agrees with you… you don't have the right to marry the person of your choice if that person has other ideas. The 'fundamental right to marry' cannot be 'turned off' when you decide to marry the 'wrong' person… a person of the wrong race, or the wrong gender.

    How can you have a fundamental right under the constitution that attaches only to a couple? This isn't just idle wordsmithing. Legal judgements are obsessive to the point of fanatical about the precise meaning of words. I can't believe the Supreme Court has not been asked to address, let alone addressed of its own accord, whether the fundamental right is the individual right to marry, or the couple right to marriage.

    And while we're on the subject of precise legal meaning… if a decision were to be based on the fundamental right to marry, the question of the level of scrutiny that applies to other LGBT rights would remain unanswered. I think challenges go to equal protection and due process in part to get the broader protection, if possible.

  • 33. Sagesse  |  January 19, 2014 at 7:07 am

    Continuing commentary on the screening of the HBO Documentary "The Case Against 8" at Sundance. Whining from Deseret News, with quotes from Ed Meese, John Eastman, and Robert George.

    Gay marriage finds friendly home at Sundance, but only part of the story told
    http://www.deseretnews.com/article/865594459/Gay-

    The irony of this happening now, in Utah, is fascinating to watch. Thank you Robert Redford :).

  • 34. Marriage Equality Round-U&hellip  |  January 19, 2014 at 8:09 am

    […] USA, Oklahoma, Utah: The Tulsa County clerk being sued for marriage equality is asking the Tenth Circuit to put the case on a parallel track with the Utah case. full story […]

  • 35. Dr. Z  |  January 19, 2014 at 8:27 am

    That was in state court.

  • 36. MightyAcorn  |  January 19, 2014 at 9:10 am

    And Los Angeles, but both counties–like the governor and AG–refused to defend. This is why the Proponents stepped in to defend.

  • 37. Gregory in SLC  |  January 19, 2014 at 11:14 am

    thank you for pointing this out. Brilliant!

  • 38. ebohlman  |  January 19, 2014 at 3:05 pm

    Except that the way they wrote their decision meant that it only applied to CA or to some hypothetical future state that recognized marriage equality and then subsequently withdrew that recognition. It was far narrower than Walker's ruling.

  • 39. grod  |  January 19, 2014 at 4:17 pm

    Utah's Kitchen et [Kitchen vs Herbert] oppose extension [14/1/18] in 12 page brief submitted by
    Magleby & Greenwood http://towleroad.typepad.com/files/opposition-to-

  • 40. Stefan  |  January 19, 2014 at 6:37 pm

    Yes but it still would've set the stage for a nationwide ruling. Thankfully Windsor was heard at the same time and did just that.

  • 41. Dr. Z  |  January 20, 2014 at 3:41 am

    It would be even stranger to find a clerk in Oklahoma who didn't want to appeal. All 77 counties in the state went for Romney. There are no blue parts of the state anymore.

  • 42. Zack12  |  January 20, 2014 at 5:17 am

    You're right about that but even when Democrats were in control,it was of the Blue Dog variety for the most part.
    So it's not like we would have had allies either way.

  • 43. Pat  |  January 20, 2014 at 7:58 am

    When can we expect a reply from the 10th Circuit? Should be today anyway, right?

  • 44. Lymis  |  January 20, 2014 at 8:27 am

    Federal Holiday, so probably not.

  • 45. Paul S  |  January 20, 2014 at 9:02 am

    I don't agree. Marriage is fundamental to our survival as individuals. Having someone to share your life with has been shown to increase life expectancy and well being in general. Having another person to care for you when you are sick and to support you at all times is very important.

    This quote is sometimes misconstrued by the christianists as being about procreation. However, justices mean what they say. If they meant procreation and survival of the race they would have said so. They didn't. Don't let anyone ever claim that this is what it is about.

  • 46. Pat  |  January 20, 2014 at 10:00 am

    Oh yeah I forgot today is off in the US! That's why there was so few new comments here…
    So pretty much, they might be told that their extension request is denied just before the actual filing deadline! Fun…

  • 47. Richard Weatherwax  |  January 20, 2014 at 11:55 am

    I was a judge, I would ask some of these lawyers why they got married. Did they marry in the hope of spending a lifetime with the person they love, or did they get married for procreation?

  • 48. Richard Weatherwax  |  January 20, 2014 at 11:56 am

    That is "IF I was a judge."

  • 49. Steve  |  January 20, 2014 at 11:58 am

    It's still wrong. Companionship is what's important on a personal level. Not marriage. That's just how society has chosen to organize itself. Marriage is only important today because the excessive number of legal rights tied to it and because it's placed on a pedestal. But a society could easily function differently, with less emphasis placed on formal unions and less condemnation for couples that aren't married.

  • 50. Richard Weatherwax  |  January 20, 2014 at 12:15 pm

    That companionship includes sharing a home and property. It includes the making of long range plans for the two of you. It also includes assuming a responsibility to and for each other which includes the care and welfare of each other, and the possibility of having to make life saving medical decisions. That companionship must be recognized by society as a whole for it to work. Marriage cannot be replaced.

  • 51. Mike in Baltimore  |  January 20, 2014 at 1:25 pm

    Does the Governor of California have the state constitutional power to introduce for legislative consideration a list of "Governor's Bills" that do not have to be sponsored by anyone in the legislature? Today (January 20) is the final day for the Governor of Maryland to introduce the governor's bills to the state legislature.

    The people of Maryland would think it strange for the Governor to not be able to introduce his or her favored bills, but the people of another state might (and do) consider it strange for the Governor to introduce into legislative consideration his or her favored bills without any requirement that they be sponsored by anyone else. In Maryland, the Governor is NOT (by the state constitution, as in most [all?] states) considered a member of the state legislature, and in almost all states a bill can ONLY be introduced for consideration by the legislature by an actual member sponsoring such bill. That is not the case in Maryland.

    Marriage Equality in Maryland was at least partially successful because the concept was part of the Governor's list of bills he wished passed in that session (that was in 2012). Others agreed with him, but that is not a requirement under the Maryland state constitution for a bill to be introduced.

    Also, many (I believe it is most) states have 'part-time' legislatures, meaning they meet only during a specified period of time (or a specified number of days during a specified period of time). Included in that category are Illinois, Maryland and Indiana, among other states. Many states have 'full-time' legislatures, meaning they can meet at any time during the year. New Jersey and California, among others, are in that category.

    It would be "strange" for someone from California to move to a state with a 'part-time' legislature, and the legislature, without being called into special session, to not be able to legislate during the time the state constitution or law says it is not to meet.

    California elects the AG, which means the AG and Governor can be of different political parties. In New Jersey, the AG is appointed by the Governor. It is rare that the Governor and AG are of differing parties, even more rare that they don't agree with each other.

    In Nebraska, the legislature is Unicameral, meaning one chamber. In all other states, the legislature is Bi-cameral, meaning two chambered.

    In other words, each state has it's own ways of doing things, procedures and customs. What is "strange" in one state may not be at all strange in another.

    And if the defendant is a town council member (whether elected from a single member or multiple member district), it would not be "strange" if the town council member had the option of appealing or not? Why or why not?

  • 52. TPAKyle  |  January 20, 2014 at 1:49 pm

    There's now a UKIP twitter feed that provides weather updates. Check out the EXTREME WEATHER WARNING from January 18:

    "Tonight for the first time, just about half past ten. For the first time in history it's gonna start rainin' men…"

    Classic.
    https://twitter.com/UkipWeather

  • 53. Mike in Baltimore  |  January 20, 2014 at 2:44 pm

    SCOTUS only wants standing for those who will actually be harmed, and/or state officials (or whoever is defined, by state law and/or the state constitution), to have the authority to have standing.

    In the 'Brown v Board of Education' case (decided in 1954), who were the state officials in the case?

    In the 'Susette Kelo, et al. v City of New London, Connecticut, et al.' case (decided in 2005), who were the state officials in the case?

    In other words, the meaning of standing is NOT restricted to a cut and dried "elected official that represents an entire state".

    By the way, 'that' is a reference to an inanimate object. When referring to people, the normal method is to refer to them as 'who' or 'whom'. You consider elected officials to be inanimate objects?

  • 54. Steve  |  January 20, 2014 at 2:56 pm

    It could be if society were set up very differently in the first place. It's just that the ship for that has sailed now.

    This huge importance of marriage for legal reasons is a relatively new thing. Marriage was always more about preventing social stigma, but it didn't always have hundreds or even thousands of legal rights attached to it.

  • 55. sfbob  |  January 20, 2014 at 2:58 pm

    I've been a Californian for over 25 years. Though I certainly don't consider myself an expert on the matter, as far as I know, CA's governor cannot introduce legislation on his or her own; all bills must be introduced by legislators. And of course, alternatively, CA's ballot measure process serves in effect makes the citizens (or really, a bunch of special interests, some benign and some definitely not, who have become able to manipulate the citizens) a separate and distinct partner in the legislative process. Ballot measures, once passed, become law and are not subject to approval or veto by the governor; the only way to amend or supercede a ballot measure is through another ballot measure (unless the measure specifically permits the legislature to amend it), so the only way to get rid of any measure, once approved, is by means of litigation.

    What I find sad is that the ballot measure process was created initially to wrest control of the state government from the hands of the Southern Pacific Railroad, which effectively ran the state. The system worked for a while, until moneyed interests figured out how to subvert the intent. As a result the state's voters have done some colossally stupid things. Apart from Prop 8, the two most egregiously stupid ideas to be passed by the voters both had to do with real estate. In 1963 a ballot measure (Prop 14) was passed that expressly permitted discrimination in real estate transactions. It was eventually ruled unconstitutional. And I think most people here know about 1978's Prop 13 which has caused the financial strangulation of the state. Both measures were backed by the real estate industry and other commercial interests. One of the effects of Prop 13 has been that, over the years, taxes on residential real estate has become a larger and larger portion of the state's total property tax revenue. The reason for that is that property can only be re-assessed when it is transferred. People buy and sell homes all the time so houses and condos are re-assessed fairly frequently. Commercial property on the other hand often transfers as an asset of some company and therefore is not subject to re-assessment. I'm quite sure that the backers of Prop 13 did this on purpose. It has caused the state to be in nearly perpetual economic chaos and self-inflicted poverty ever since the law was passed. There are other examples as well, including laws whose intent was to withhold state services from undocumented immigrants. A good portion of that ballot measure was also (fortunately) tossed out by the courts.

  • 56. Mike in Baltimore  |  January 20, 2014 at 3:08 pm

    Sounds like someone will be doing a lot of 'late night' and 'weekend' work.

    Why that would be necessary, I don't know. After all, what new (and totally off base) argument can anyone bring against ME now? Cutting and pasting takes that much time?

  • 57. StraightDave  |  January 20, 2014 at 4:34 pm

    And why would you need $2M to cut n paste? Any AG clerk could do that. Besides, all those arguments are DOA now. I half expect the new lawyers to pull something new and totally weird out of their ass, along the lines of the parent diversity BS that somebody made up recently (not that parenting is even the question, mind you, since I suspect even Utah lets gay people adopt). They surely must know they have to try to change the conversation now – don't they?

  • 58. grod  |  January 20, 2014 at 4:40 pm

    "If you could package marriage as a pill,marriage would qualify as a wonder drug".
    Lawyers should well reference studies mentioned here to assert the 'fundamental' benefits of [happy] marriage. http://www2.macleans.ca/2014/01/09/how-marriage-c

  • 59. StraightDave  |  January 20, 2014 at 4:50 pm

    I think my quote above from Loving covers your question:

    "Under our Constitution, the freedom to marry, or not marry, a person of another race [meaning, your choice] resides with the individual and cannot be infringed by the State. "

    In other words, the "freedom to marry" includes the freedom to choose your partner. The state cannot veto your choice.

  • 60. grod  |  January 20, 2014 at 5:15 pm

    Stefan – Stephen Reinhardt et al's decision was very narrowly circumscribed – use of the title 'marriage', that imo the US Supremes did the marriage equality jurisprudence a favor by ruling on standing – thus leaving Judge V. Walker's decision stand. Hopefully Sevcik v. Sandoval will give the 9 Circuit Appeals Court to point out the errors of Judge R Jones's ways. Although it does not assert a fundamental right to marry, it should give the Appeals Court an opportunity to rule in a way that is precedential for the Circuit's six of 9 states that do not yet have equality.

  • 61. bayareajohn  |  January 20, 2014 at 6:28 pm

    They really should just file a two word brief – "Because God!"

  • 62. Nyx  |  January 20, 2014 at 6:32 pm

    Actually "preventing social stigma" is a modern social construct. Historically marriage was about property rights. Unfortunately that included the idea that a wife was property.

  • 63. ebohlman  |  January 20, 2014 at 7:10 pm

    Historically marriage was about creating ties between extended families (most of which had to do with property, as you mention); it was really more about creating in-law relationships than recognizing couple relationships.

  • 64. grod  |  January 20, 2014 at 7:17 pm

    In the Jan 6 Reply brief to the US Supremes on the day the Court issued the stay, the brief asserts Baker vs Nelson is controlling – "Lower courts are bound by summary decisions of this (USA Supreme) until such time as the Court informs them that these [decisions] are not." p 7 http://www.scribd.com/doc/196526882/13A687-Utah-S

  • 65. Sean fron NJ  |  January 20, 2014 at 7:28 pm

    I was specifically speaking of marriage equality cases only.

  • 66. sfbob  |  January 20, 2014 at 8:32 pm

    The great thing about this sort of (magical) thinking is that anytime ANYTHING undesirable takes place, some unpopular group can be blamed for it. And since undesirable events happen constantly, there are always things to blame said unpopular group for.

  • 67. sfbob  |  January 20, 2014 at 8:43 pm

    Not even correct. But what can one expect from these people.

    Baker vs Nelson was dismissed for "want of a substantial federal question." Does anyone, in light of Windsor, seriously believe that ANY marriage-equality case does not present a substantial federal question?

    As I recall, summary dismissals serve as precedence only under very narrow sets of circumstances. It would be laughable to presume that the legal circumstances of today are identical to those which obtained in 1972, when the Baker dismissal was issued. In 1972, no state or municipality within the US gave any legal cognizance to any same-sex relationship. I believe it was in 1972 that the very first anti-discrimination ordinances were passed. The legal climate has changed ENORMOUSLY, beginning with Romer, continuing with Lawrence and culminating thus far with Windsor. Because marriage equality currently obtains in 17 states plus the District of Columbia and will potentially do so in Utah and Oklahoma very soon, the portability of such marriages presents issues of significant import on the federal level.

  • 68. Mike in Baltimore  |  January 20, 2014 at 8:48 pm

    In Maryland, the people speak through the legislature – there is no citizen initiative except to attempt to overturn legislative acts, such as the legislature voting for ME in the state, then the citizen initiative to have the voters attempt to overturn it.

    Even then, before it can go on the ballot, the state constitution specifies how many valid signatures must be gathered by a date certain (June 30, I believe). The number of signatures is a % of the votes in the previous gubernatorial election for statewide issues, and a different % of the votes in the previous election for the highest elected office in the jurisdiction if only for a single jurisdiction. (There have been attempts to up that %, as it currently is extremely low.)

    As to property taxes, Maryland does not rely on them for the state (local, especially for schools, is much, much higher). My latest property tax bill had a property tax amount for local many times higher than the state amount.

    Assessments are conducted by the state every year, with each jurisdiction divided into 3 parts for tax assessment purposes, an assessment conducted in one of those parts each year, thus each property (private or commercial) gets assessed every 3rd year. The tax (for private property) is limited by a homestead provision, though – the % that the tax can increase after an assessment. Thus if the assessment goes up 15%, but the jurisdiction has a 3% homestead increase cap, the tax can only go up by 3%. The homestead goes into effect the third year after purchase.

    One other major difference between Maryland and most, if not all other states is that in Maryland a person (or corporation) pays the property tax in advance. In most, if not all other states, it is in arrears.

    (Then there are all the issues surrounding ground taxes, for another discussion.)

    There are advantages and disadvantages to the systems in each state, but personally I'd rather not have a citizen initiative like that in CA. If the wrong party (or parties) gains control of it, it can cause a tremendous amount of havoc that can take years to untangle, if it can ever be untangled.

  • 69. Mike in Baltimore  |  January 20, 2014 at 9:03 pm

    You were?

    "I don't think the Supremes want anybody who is not an elected official that represents an entire state to have standing."

    Absolutely nothing in that post showing that it applied ONLY to Marriage Equality issues. Maybe you meant it to apply only to Marriage Equality issues, but that is not the way your post reads.

  • 70. Mike in Baltimore  |  January 20, 2014 at 9:12 pm

    Maybe SCOTUS issued a stay to better insure the case gets before them so they can get rid of Baker?

  • 71. Lynn E  |  January 20, 2014 at 9:21 pm

    IANAL, but wouldn't the mere fact that they initially granted cert to the Prop 8 case (not to mention the ruling in Windsor) indicate that Baker no longer controls? SCOTUS did keep Walker's ruling intact, after all. So it would seem that they agree that Federal Courts are at liberty to hear these cases.

  • 72. mtnbill  |  January 20, 2014 at 9:33 pm

    Prop 13 started because of the then rising property prices causing property taxes to increase substantially. It had the effect of causing CA to rely on income tax revenue, along with other initiatives which also increased income tax rates.

    Part of the reason for the rise of the initiative industry was that the legislature would not address problems–it was either deadlocked with a 2/3rds majority for increasing taxes, or approving the budget. At one time, there was also a cap on state expenditures limited to a percentage of the state's gross domestic product. However, the education lobby (among others) has eroded that so it is meaningless. Also politicians did not want to take a position and given the gerrymandered districts, being a state legislator was a career at the time.

    Even with 2/3rds of the legislature in Democratic hands, the legislature is reluctant to tackle the property tax issue. Of course, Jerry Brown does not get along with the legislature as well–he didn't get along with them in his earlier terms as governor, either.

  • 73. sfbob  |  January 20, 2014 at 9:39 pm

    You've certainly hit the nail on the head with this one:

    "…personally I'd rather not have a citizen initiative like that in CA. If the wrong party (or parties) gains control of it, it can cause a tremendous amount of havoc that can take years to untangle, if it can ever be untangled."

    I grew up mostly in and around New York City; lived briefly in DC before decamping to the West Coast. When I was young and heard about California's ballot initiative system I thought it sounded terrific. I was unaware of the existence of Prop 14 (the measures are numbered consecutively and the numbering restarts every few years, so Prop 13 came after Prop 14 and Prop 8 came after Prop 8. And the preliminary, statutory version of Prop 8 was called Prop 22.) which would have soured me entirely. Still, even at the time I moved to SF in 1986 it sounded overall like a good idea still. It wasn't until I arrived that I realized how easily the process could be hijacked.

    If I'm not mistaken, Prince Georges County has its own local version of Prop 13. That would not happen in CA since the entire assessment process is uniform throughout the state. Since assessed value is pegged at purchase price, that at least minimizes the amount of time and energy expended on reassessments. The only time an assessment takes place adjusted apart from a transfer is when capital improvements are made (the additional value is the imputed market value of the improvements); also a property owner can ask for reassessment if he or she believes the assessed value of his or her property exceeds the market value. That happened quite often during the recession.

    Incidentally my observation about how Prop 13 affects the state's finances was only partly accurate. The state's website says the following:

    "Although the property tax is a local revenue source, it affects the state budget due to the state’s education finance system—additional property tax revenue from the 1 percent rate for K–14 districts generally decreases the state’s spending obligation for education. Over the years, the state has changed the laws regarding property tax allocation many times in order to reduce its costs for education programs or address other policy interests."

    Here as well the formula affecting property tax allocation has been changed mainly by ballot measure. In many respects the legislature and the governor have only limited control over the state's revenue stream. It's really, really irrational and chaotic.

  • 74. mtnbill  |  January 20, 2014 at 9:42 pm

    Mike, much of the same issue happened in Maryland in the mid 70's with rising property prices and property taxes. Many citizens are house rich and cash poor, which caused some of the hue and cry to limit what the citizens (especially the retired folks) could pay.

  • 75. mtnbill  |  January 20, 2014 at 9:46 pm

    California has changed the way it numbers ballot measures from time to time. It was sequential at one time, and they've tried to change the numbering system because of a 'potential' prop 13 effect. People still refer to the ballot proposition by that number.

    I think they've gone back to original system of numbering the measures starting with 1 through the last now at each election. There are often about 10 to 20 ballot propositions at each primary or general election.

  • 76. palerobber  |  January 20, 2014 at 10:52 pm

    i woudn't argue that companionship isn't important and positive, but keep in mind that all these studies linking marriage with better economic and physical well being are only finding an association, not causation. it could just be that people who are more healthy, happy, and capable are also more likely to marry.

  • 77. Steve  |  January 21, 2014 at 5:59 am

    For men maybe it wasn't in many cases. But unmarried women who slept with men or even had children were not looked upon kindly to say the least. In fact it could make them unable to get married without paying a lot of bribes.

  • 78. Richard Weatherwax  |  January 21, 2014 at 7:16 am

    Now we are getting into the "traditional marriage". The husband was the head of the family. All property was in the husband's name, and the wife was expected to obey her husband. Proof of the woman's virginity on her wedding day was often required before the marriage became legal. That's the way it is in the Bible.

  • 79. Keith  |  January 21, 2014 at 8:02 am

    Some men treat the wife like "owned property."

  • 80. Keith  |  January 21, 2014 at 8:06 am

    The traditional wife's guide from a 50s women's magazine http://j-walk.com/other/goodwife/images/goodwifeg

  • 81. sfbob  |  January 21, 2014 at 9:05 am

    Slightly off-topic and I'm sure we'll see a separate front-page post on it soon: There's now a suit challenging Florida's marriage equality ban…
    http://www.nclrights.org/press-room/press-release

  • 82. GregG  |  January 21, 2014 at 10:27 am

    I think it is worth mentioning that the CA AG declined to defend 1963's Prop 14 for essentially the same reason that AGs Brown and Harris declined to defend Prop 8. Yet people were hollering that the action by Brown/Harris was an unprecedented violation of their oaths of office.

  • 83. JustMe  |  January 21, 2014 at 10:35 am

    Completely opposite circumstances. Baker was about a STATE law. Windsor was about a FEDERAL law. Therefore Baker was only persuasive authority with regards to the FEDERAL law. But because the SCOTUS is THE highest STATE court (i.e. only SCOTUS can overrule a STATE supreme court decision), then because this case is about STATE law, not federal law, Baker is now in play. Baker couldnt have been overruled in Windsor because STATE law was not involved.

  • 84. Bruno71  |  January 21, 2014 at 11:29 am

    SCOTUS can override a state SC if there is a FEDERAL constitutional issue involved. SCOTUS deals with the US Constitution, and sometimes has to address inconsistencies with state constitutions. Baker dealt ONLY with Minnesota's constitution, so what would that have to do with Utah or Oklahoma? It is being established by courts left and right in the past few months that Baker is no longer relevant to these cases.

  • 85. Bruno71  |  January 21, 2014 at 11:35 am

    Of course, that's true as well, but you never know, even in Oklahoma. I also wonder if the clerk could be instructed by a superior as to what to do with an appeal (who is the clerk's superior in Oklahoma anyway?).

  • 86. Zack12  |  January 21, 2014 at 11:48 am

    Exactly,it's easy to forget that in Loving V Virginia,only 16 or so states still had bans on interracial marriage by that time.
    I know some of the justices want a number closer to that to strike down the bans but that doesn't look like that will be an option.

  • 87. Equality On TrialOklahoma&hellip  |  January 24, 2014 at 4:05 pm

    […] against her: that the state can’t define marriage to exclude same-sex couples. (She then asked the Tenth Circuit Court of Appeals to place the Oklahoma case on a parallel briefing track with the Utah appeal, and to have arguments […]

  • 88. Policy and Legal Update &&hellip  |  January 26, 2014 at 9:24 pm

    […] OKLAHOMA  •  On 17 January 2014, in Mary Bishop, et al. v. United States and Tulsa County Court Clerk, et al., a challenge to the state constitution for denying the right to marry the person of one’s own choice, for refusing to recognize same-gender marriages performed in other states, and for other aspects of the federal Defense-of-Marriage Act, OK requested the 10th Circuit U.S. Court of Appeals to:  (1) set a fast briefing schedule; (2) assign this appeal to the same judges hearing the UT appeal; and (3) allow amicus briefs to be filed jointly covering both cases.    •  MEUSA Summary  •  News Source […]

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