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Same-sex couples in Kentucky seeking to invalidate state’s same-sex marriage ban are allowed to intervene in district court

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Kentucky state seal

Same-sex couples in Kentucky are trying to have the state’s same-sex marriage ban invalidated in federal district court, after the judge struck down the parts of state law preventing same-sex marriages legally performed outside the state from being recognized. The judge has granted the request, and has issued a briefing schedule:

Answer to Intervening Complaint on or before March 19, 2014

Motion and Memorandum for Relief by Plaintiffs on or before April 18, 2014

Response to any motions by Plaintiff or other Amicus Parties on or before May 19, 2014

Reply to any motions by Plaintiff on or before May 28, 2014

Earlier today, the final order in the judge’s earlier decision went into effect. That order only applied to same-sex marriages performed outside of Kentucky. The state hasn’t yet announced if it will appeal the order.

In his opinion, the judge noted that while he wasn’t ruling on the validity of the state’s ban, the Supreme Court’s decision in United States v. Windsor, striking down Section 3 of the federal Defense of Marriage Act (DOMA) “suggests a possible result” in a potential direct challenge to the ban. Intervention by the other same-sex couples will allow the judge to consider the validity of Kentucky’s ban directly.

The new plaintiffs’ complaint is here. The complaint alleges that “[t]he Defendants’ refusal to issue Plaintiffs a marriage license violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as determined by this Court in its Feb. 12, 2014 Opinion, other appropriate binding precedent, and virtually every court in the country to decide the issue in recent history.”

The case is Bourke v. Beshear.

Thanks to Kathleen Perrin for these filings

For more information on Bourke v. Beshear from The Civil Rights Litigation Clearinghouse, click here.

19 Comments Leave a Comment

  • 1. davep  |  February 27, 2014 at 2:15 pm

    The dominoes are falling almost as fast as we can set them up….

  • 2. Pat  |  February 27, 2014 at 2:54 pm

    Off topic: with all these cases, I have lost track of where we stand in the appeal of Sevcik v. Sandoval, the Nevada case in the 9th circuit. Now that the state has decided to withdraw its defense, what are the next steps? Is the briefing stage complete? Has a trial date not yet been set? This is an old case now, and it looks like it may be overtaken by other circuit appeals (at least the 10th). Is it even possible that a decision is issued without any further oral arguments?

  • 3. Ragavendran  |  February 27, 2014 at 2:58 pm

    Briefing is complete. The 9th Circuit agreed to expedite the appeal and the last order it issued said that it would hear oral arguments "as soon as possible". I doubt this will happen before late April or May, because the current oral argument schedule on their website (listed for dates up to April 11) looks quite full. If oral arguments are held in May, then a decision can definitely be expected by year-end, hopefully bringing ME to the entire 9th Circuit.

  • 4. Pat  |  February 27, 2014 at 3:09 pm

    Thanks for your always insightful and useful comments!
    Once a decision is issued, it seems however likely that the stay in maintained until they have a chance to seek SCOTUS review. If a decision is issued in November for example, how long does it take until we know whether SCOTUS grant cert or not? Is it once again a multi-months process or is that phase completed fairly quickly? (I forgot what the timeline in the Prop 8 case was).

  • 5. Ragavendran  |  February 27, 2014 at 3:15 pm

    You're welcome, Pat. In this case, it is hard for me to see any rationale for why the 9th Circuit would issue a stay of its ruling (assuming it is in our favor). This is because the likelihood of an appeal is minuscule – with Hollingsworth as precedent, the Coalition for the Protection of Marriage (the only defendant left) will not have standing to appeal (either for an en banc rehearing by the 9th, or SCOTUS). In the unlikely event that they do appeal, the 9th will definitely refuse, and SCOTUS will likely quickly deny cert – they won't wait an instant, because the precedent is so clear and fresh.

  • 6. Zack12  |  February 27, 2014 at 3:18 pm

    I hope to see that as well.

  • 7. Pat  |  February 27, 2014 at 3:31 pm

    Great, sounds promising!
    For that reason, the 9th circuit might indeed catch up with the 10th!

  • 8. Ragavendran  |  February 27, 2014 at 3:34 pm

    Indeed. I'll be surprised if we don't hear decisions from at least the 4th, 9th and 10th by year-end.

  • 9. StraightDave  |  February 27, 2014 at 3:41 pm

    a fine point perhaps, but I don't think SCOTUS will deny cert right away because that isn't what is being asked. The request will only be for a stay, which the 9th denied. I agree SCOTUS would be hard-pressed to stay this one pending appeal, so marriages will proceed. The coalition can still file an appeal of the ruling in due course, within 90 days, and SCOTUS will consider cert at that time. But the horse will already be out of the barn, all of NV will be married because there's no waiting in Vegas, and I can't see SCOTUS being the least bit interested.

  • 10. Pat  |  February 27, 2014 at 3:55 pm

    The reason you mention (the Coalition having no standing to appeal at SCOTUS) would indeed give SCOTUS a perfect excuse to deny cert on this one and bring marriage equality to the whole 9th circuit. if a cert request following the 10th or 4th circuit appeals reaches them afterwards, they could actually feel that enough states have equality to avoid a blacklash, and could grant cert on those cases without looking inconsistent.

  • 11. grod  |  February 27, 2014 at 8:30 pm

    Was not the Coalition refuse 'cert before judgement' by the US Supremes on June 27 2013.

  • 12. Ragavendran  |  February 27, 2014 at 8:39 pm

    Yes. Such certs are rarely granted and a denial of such a cert petition doesn't disqualify them from petitioning for cert again after judgment.

  • 13. Stefan  |  February 27, 2014 at 10:19 pm

    Typically it takes 2-3 months for them to issue a decision, so if they hear it in either April or May (which I think Is likely), then a decision should be handed down between June and August. The Supreme Court begins considering cases in October.

  • 14. Ragavendran  |  February 27, 2014 at 11:11 pm

    Hmm.. I logged into PACER just now to check the latest on Sevcik, and while not mistaken in claiming earlier that briefing was complete, I had no idea that it was just completed today! Since the 9th has promised to calendar the case as soon as possible, this can happen any day, now that briefing is complete.

    According to the PACER docket summary for this case:
    Feb 12: Order granting unopposed motion to expedite calendering of the case
    Feb 13: Coalition submits a supplemental brief and files a motion to file a supplemental brief
    Feb 21: Motion to file supplemental brief granted and the one submitted on Feb 13 is filed. Optional reply brief from Plaintiff-Appellants is due in 14 days
    Feb 26: Plaintiff-Appellants submitted reply brief and filed a motion to file an oversized brief
    Feb 27: Unopposed motion for leave to file oversized brief is granted and the one submitted on Feb 26 will be filed

    I would be interested in reading these two briefs (the supplemental brief by the Coalition and the oversized reply brief by the Plaintiff-Appellants), but downloading them from PACER will cost me – it's only 10 cents a page, but I'm not sure how long they are and I'm nervous to click on the links (It's my first time using PACER). Kathleen? Scottie? Anyone?

  • 15. JayJonson  |  February 28, 2014 at 7:10 am

    Excuse this point of privilege, but I really have to thank all of you regular posters for sharing your knowledge and expertise here. The quality of postings here is very high indeed. I always learn from the comments. The responses to Pat's question about Sevcik by Ragavendran, Zack, Stefan et al. illustrates my point. (No: this is not spam, just an expression of gratitude.)

  • 16. Warren  |  February 28, 2014 at 2:57 pm

    By the end of the year the SCOTUS will have so many cases to chose from that it might force them to address the 14th amendment sooner than they wish to do it.

  • 17. Ragavendran  |  February 28, 2014 at 3:04 pm

    Update 1: Thanks, Scottie for the Coalition's brief, now discussed at http://equalityontrial.com/2014/02/28/anti-gay-gr

    Update 2: I went ahead and downloaded the oversized reply brief and it is here: http://www.scribd.com/doc/209877760/Plaintiffs-Ap

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