Denied.
October 6, 2014 6:58 AM Subscribe

This morning, the Supreme Court denied cert petitions in all seven same-sex marriage cases that had been brought to the SCOTUS level.

via SCOTUSblog: "This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits."

Supreme Court Denies Review Of Same-Sex Marriage Cases, Bringing Marriage Equality To Five States: "The decision not to take on the appeal in any of the pending certiorari petitions brings marriage equality to Indiana, Oklahoma, Virginia, Wisconsin, and Utah. "

posted by roomthreeseventeen (213 comments total) 33 users marked this as a favorite

Wow.
posted by blucevalo at 7:00 AM on October 6, 2014 [1 favorite]

little by little, piece by piece.
posted by nadawi at 7:01 AM on October 6, 2014 [3 favorites]

On the one hand, yay. I should get to color in UT, WI, IN, VA, and OK on the map on my office door very soon.

On the other hand, it's starting to look like I don't get to color in my own state anytime soon. Like I just posted on Facebook, "On the other hand, I am not a lawyer and I don't play one on TV, but I don't understand how the Supreme Court thinks they can keep sticking their head in the sand, here."
posted by joycehealy at 7:05 AM on October 6, 2014 [5 favorites]

Sounds like they want to hear from the Sixth Circuit before they take this on. Although Wikipedia says there's already a split with the Eighth. Hmm.
posted by Hizonner at 7:08 AM on October 6, 2014 [2 favorites]

yeah, i see a lot of celebration, but it doesn't seem to me to be actually good news, except for the states listed - scotus is still defacto treating this as a states rights issue.
posted by nadawi at 7:09 AM on October 6, 2014

The 8th Circuit case is pre-Windsor, so it may not be good law any more. In addition to the 6th Circuit, the 5th could also come out the other way once it hears the Texas and Louisiana cases.

Justice Ginsburg suggested last month that the justices might not be in a hurry to hear this issue unless or until there is a split.
posted by Area Man at 7:11 AM on October 6, 2014 [2 favorites]

scotus is still defacto treating this as a states rights issue.

De jure, actually, but yes.
posted by The Bellman at 7:11 AM on October 6, 2014 [4 favorites]

scotus is still defacto treating this as a states rights issue

I don't think that's correct. I think of it as the SCOTUS not needing to get involved because the lower courts have correctly determined following the Windsor case that there is a right to marriage equality secured by the federal constitution that trumps any state laws or constitutional provisions to the contrary.
posted by Area Man at 7:14 AM on October 6, 2014 [7 favorites]

In effect, the court is saying that at this point, this is still a matter for individual states to determine, as they have been doing. The decision brings the number of states in which same-sex marriage is legal to 24. Another six states that fall within the 4th, 7th and 10th Circuit Courts of Appeals will likely have to follow suit, bringing the total up to 30 states (Those six states are North Carolina, West Virginia, South Carolina, Wyoming, Kansas and Colorado.)
posted by beagle at 7:15 AM on October 6, 2014

yeah, i see a lot of celebration, but it doesn't seem to me to be actually good news, except for the states listed - scotus is still defacto treating this as a states rights issue.

Today, it immediately effects only those five states, but it should apply, I believe, to every state in the Fourth, Seventh and Tenth Circuits within the next few days.
posted by roomthreeseventeen at 7:15 AM on October 6, 2014 [5 favorites]

In effect, the court is saying that at this point, this is still a matter for individual states to determine, as they have been doing.

No, that's not right. Federal courts issued decisions that will force the state governments in Indiana, Oklahoma, Virginia, Wisconsin, and Utah to grant marriage equality. If the issue had been left for individual states to determine, as they saw fit, bans in those states would still be in effect.
posted by Area Man at 7:18 AM on October 6, 2014 [18 favorites]

In effect, the court is saying that at this point, this is still a matter for individual states to determine

No, it isn't, because SCOTUS is upholding the Federal appeals courts' rulings on legal challenges to the states' bans. If it were a strict "states rights" issue, then how could the appeals courts rule that the state bans were unconstitutional?

SCOTUS is effectively saying that the appeals courts' rejection of the bans can stand as a ruling; the "losers" of those cases (the anti-gay-marriage people) don't have a good reason to appeal the rulings to SCOTUS.
posted by overeducated_alligator at 7:18 AM on October 6, 2014 [7 favorites]

Yeah, correct me if I'm wrong, but the decision seems to me to take the number of states with marriage equality from 19 to 30, so though I'm not a big fan from a "fuck, state rights again?" perspective, so today we will also celebrate.
posted by MCMikeNamara at 7:18 AM on October 6, 2014

Right, but what about the one or two places where bans were found to pass muster ? I thought that's exactly what the SC was supposed to work out -- when different circuit courts made different findings ..

The only decision I'm aware of that upheld a same-sex marriage ban is Martin Feldman's ruling in Louisiana last month. However, Feldman is only a district court judge, and the case has been appealed to the Fifth Circuit Court of Appeals. Once can assume that regardless of that decision, it will then be appealed to the Supreme Court. If Feldman's decision is upheld, then that would be a circuit split, and the Supreme Court couldn't really avoid hearing the case.
posted by Johnny Assay at 7:19 AM on October 6, 2014 [14 favorites]

I honestly did not expect this. I fully expected the conservatives on the court to take-on at least one of the appeals. Perhaps this implies that the court was actually leaning in-favor of same-sex marriage? Or, they saw the momentum nation-wide and simply decided to let inevitability take over?
posted by Thorzdad at 7:24 AM on October 6, 2014 [1 favorite]

Me trying to understand what Supreme Court orders mean for marriage equality immediately without the proper knowledge and with being swept up in the issue emotionally is like playing the game "telephone" with myself:

"So it looks like marriage equality has come to 5 or maybe 11 states or maybe just 5 for right now purple monkey dishwasher."

So thanks everybody here for your insight.
posted by MCMikeNamara at 7:25 AM on October 6, 2014 [17 favorites]

Much as I'd love a "MARRIAGE FOR EVERYONE*" ruling immediately. I will revel in the happiness today.

*where everyone=consenting adults
posted by Twain Device at 7:26 AM on October 6, 2014 [1 favorite]

The salt over at Freerepublic.

As you know the tree of liberals must be periodically refreshed by the tears of "patriots".
posted by Talez at 7:26 AM on October 6, 2014 [32 favorites]

*sings On Wisconsin*
posted by desjardins at 7:26 AM on October 6, 2014 [7 favorites]

i guess maybe i'm feeling frustrated since i'm in the 8th curcuit. i don't mean to rain on any parades - but i just feel we need a loving v virginia type of ruling. how much longer are people wanting to marry their partners, and have those marriages recognized nationwide, expected to wait?
posted by nadawi at 7:26 AM on October 6, 2014 [5 favorites]

I'm excited to be officiating my first same-sex marriage this weekend in PA. Everybody is telling me to stop referring to them as that ("NO. THEY'RE JUST MARRIAGES.") Sorry, but it's been so long coming and so many in the US still can't do it... it feels special and I hope soon it won't be but for now, oh hell yeah, I'm gay-marrying my friends!!!!
posted by stupidsexyFlanders at 7:27 AM on October 6, 2014 [14 favorites]

If states are now in a circuit court area that sees gay marriage bans as unconstitutional, do they first have to push a case up to that level to have legal gay marriage in their state?
posted by DynamiteToast at 7:27 AM on October 6, 2014

although, the idea of utah's general reaction and mary fallon's face right now is enough to make me smile a little bit.
posted by nadawi at 7:27 AM on October 6, 2014 [3 favorites]

While I would have of course enjoyed the Court flatly ruling in favor of SSM across the board, there is also a lot to be said for the Court not taking a case until there is a proper circuit split. Depending on the discussions behind the scenes, this may have been our best case scenario for now. As one federal judge put it a few months ago, with regard to the Hobby Lobby decision, sometimes the best thing the Court can do is to exercise some "passive virtue".
posted by Sticherbeast at 7:28 AM on October 6, 2014

Well, I might get to color in us soon (I'm in NC). When the Fourth Circuit decision went down, some sources said it would apply to us and some didn't, and I'm still reading conflicting reports, and the whole thing is so super confusing (again, IANAL, and I shouldn't have to be one to figure out if I'm legally married in my state or not!)

I am grumpy and tired and whether I get mine soon or not, still think that SCOTUS just needs to get this done. For once, I'm with my students: sometimes, social change should be fast.
posted by joycehealy at 7:28 AM on October 6, 2014

i totally understand the technical arguments about this not being states rights - but it's functionally the same for those of us in the wrong circuits. "it's not states rights, but, oh, your state doesn't get marriage equality yet" isn't as comforting as you might think.
posted by nadawi at 7:30 AM on October 6, 2014 [3 favorites]

In effect, the court is saying that at this point, this is still a matter for individual states to determine

No, it isn't, because SCOTUS is upholding the Federal appeals courts' rulings on legal challenges to the states' bans. If it were a strict "states rights" issue, then how could the appeals courts rule that the state bans were unconstitutional?

I stand corrected, you are right.
posted by beagle at 7:31 AM on October 6, 2014 [1 favorite]

As you know the tree of liberals must be periodically refreshed by the tears of "patriots".

Does that mean that our mascot tree is the mangrove?
posted by Slackermagee at 7:33 AM on October 6, 2014 [3 favorites]

Today's comedic moment. My wife: "So, are we married or not?" Me: "Uh, I don't know."

Okay, I'm done now. :)
posted by joycehealy at 7:35 AM on October 6, 2014 [29 favorites]

Rick Hasen's thoughts - he's a very very good election law guy. He's saying that given the number of people that will be for-real married, there is no way that there's going back - the conservatives are waiting for a circuit split to make a last stand.
posted by Lemurrhea at 7:39 AM on October 6, 2014 [6 favorites]

It's this weird area where if you're a state that tried to ban gay marriage, guess what? You now have it.

So those conservative states join the more liberal states that have made it legal via state legislatures in having gay marriage...leaving only the states in the middle that couldn't come to a consensus one way or the other without marriage equality.

I guess the next battle is for same sex couples in those remaining states to attempt to get married, get denied, and then sue in those states. Many states, I'd venture, wouldn't even bother defending it.
posted by inturnaround at 7:41 AM on October 6, 2014 [3 favorites]

As for the other states within the 7th, 4th, and 10th circuits, there is now binding precedent in each of those circuits in favor of equal marriage rights. However, there probably will be a slight lag in implementing those rights. State government officials in the other states (North Carolina, West Virginia, South Carolina, Wyoming, Kansas and Colorado) could just recognize the writing on the wall, and agree to entry of judgment against them in whatever cases are pending (I believe there is now a pending case in every state, if not then some states may need to wait for one to be filed). If the states won't concede, however, then I think we will have to wait for individual federal judges to enter orders.
posted by Area Man at 7:43 AM on October 6, 2014 [2 favorites]

Many states, I'd venture, wouldn't even bother defending it.

Never underestimate the ability of a red secretary of state wasting millions of taxpayer dollars defending a gay marriage ban that is clearly unconstitutional out of sheer spite.
posted by Talez at 7:44 AM on October 6, 2014 [29 favorites]

I suspect the real issue SCOTUS will elect to deal with is when a state outside the affected circuits does not exercise Full Faith and Credit when it comes to a same-sex couple married in another state.
posted by Thorzdad at 7:47 AM on October 6, 2014

Never underestimate the ability of a red secretary of state wasting millions of taxpayer dollars defending a gay marriage ban that is clearly unconstitutional out of sheer spite.
Well, spite, and the wish to nurture a victim complex in their base. Which is apparently a big fundraising tactic.
posted by Orb2069 at 7:47 AM on October 6, 2014 [12 favorites]

spite, and to juice those mid term votes.
posted by nadawi at 7:47 AM on October 6, 2014 [7 favorites]

heh jinx, mostly.
posted by nadawi at 7:48 AM on October 6, 2014 [2 favorites]

Don't know if I like.

The signs are good -- every denial of cert dealt with a case attempting to overturn a circuit that had overruled bars against equal marriage. But it doesn't (yet) make it law of the land. If all the circuits overturn bars and SCTOUS refuses cert, then it is law of the land -- when all the circuits agree and SCOTUS refuses to listen to arguments against, that's just as good as SCOTUS ruling on it.^*

The question becomes "what happens if a circuit upholds, thus leaving a circuit split?" The signs are that they would accept cert, overturn the bar, and *that* would make it law of the land, but we don't know that. What this ruling does is make it law of the land in 30 states + DC, and leaves the choice (currently) to the other 20 states. As long as cases reach those circuits and overturn, it would continue to overturn bans.

Indeed, this may be SCOTUS saying "We don't want this case. You guys just keep doing what you're doing, and don't make us do the work." But if one of the remaining circuits upholds a ban, then SCOTUS will have to step in.

But, to me, it's a strong signal to the remaining circuits about which way this is going to go, so don't bother ruling anything else but "bars are overturned per 14th Amendment Sect. 1 (the Equal Protection Clause.)

Still would rather it was done and over -- theoretically, they could accept a case barring, and then affirm it, which would wipe out equal marriage across most of the country. Basically, only states that explicitly moved to allow it, rather than had the courts overturn laws against, would have it.

If states are now in a circuit court area that sees gay marriage bans as unconstitutional, do they first have to push a case up to that level to have legal gay marriage in their state?

Yes. You have to appeal to the appellate, then to the circuit. The circuit is the last court you have a right of access to, you have to ask SCOTUS if you can bring a case, and if you try to do that before the circuit has acted they'll deny cert. The only exception is when one state is suing another, there, SCOTUS has original jurisdiction.

* This is the "four kings and an ace" hand in poker. Yes, four aces (the SCOTUS) could beat it, but since you're holding one of the aces, nobody can have four aces. If SCOTUS refuses to hear and all the kings, I'm mean circuits, overturn bars, that's just as good as SCOTUS doing so.
posted by eriko at 7:48 AM on October 6, 2014 [10 favorites]

I shouted at the radio when I heard this earlier. I shouted so loud that I bet Nina Totenberg heard me all the way in DC.
posted by rtha at 7:53 AM on October 6, 2014 [7 favorites]

JUST IN: 4th Circuit Ct of Appeals spokesman says a mandate will be issued w/in hours making order permitting same sex marriage effective
posted by roomthreeseventeen at 7:56 AM on October 6, 2014 [8 favorites]

Perhaps this implies that the court was actually leaning in-favor of same-sex marriage?

I wonder if, since so many of the rulings in *favor* of marriage equality cite Scalia's dissent, a majority of the justices ultimately won't rule against equality (the liberal bloc because they support equality, Scaliza because he isn't willing to be shown as a knave or hypocrite by ruling against his own dissent despite his personal opposition).

What Scalia does when a case finally winds up at SCOTUS will be fascinating to behold.
posted by Gelatin at 7:57 AM on October 6, 2014 [1 favorite]

When people tell you that elections don't matter, you ask yourself if this would have happened if Romney got to replace Souter and Stevens. Because it sure as hell wouldn't have.
posted by Talez at 7:59 AM on October 6, 2014 [36 favorites]

I'm just gonna leave this here:

\o/
posted by ChrisR at 8:03 AM on October 6, 2014 [5 favorites]

What Scalia does when a case finally winds up at SCOTUS will be fascinating to behold.

I want to see him on his back in the courtroom, kicking and thrashing and screaming.
posted by Pope Guilty at 8:03 AM on October 6, 2014 [6 favorites]

Sadly, no pictures will be allowed, but it will be a kick ass courtroom sketch. I hope the artists brings a little flip book.
posted by maryr at 8:09 AM on October 6, 2014 [6 favorites]

JUST IN: 4th Circuit Ct of Appeals spokesman says a mandate will be issued w/in hours making order permitting same sex marriage effective

Help an idiot out: Does this mean that when the mandate comes out, the entire 4th Circuit gets SSM?
posted by Pope Guilty at 8:12 AM on October 6, 2014

JUST IN: 4th Circuit Ct of Appeals spokesman says a mandate will be issued w/in hours

Originally, the 4th Circuit refused to stay its own ruling. SCOTUS stepped in with an emergency stay that expired the moment that the case was taken and resolved by SCOTUS or cert was denied. Since cert was denied, the stay expired and the 4th is doing what it was doing before the SCOTUS stay was issued -- ordering those laws off the books.
posted by eriko at 8:13 AM on October 6, 2014 [1 favorite]

I don't think there's any reason to freak out about this - it sounds ambiguous and potentially concerning, but it really is cause to celebrate. Although there was no comment, Justice Ginsburg's recent comments are illuminating:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

Ginsburg didn’t get into the merits of any particular case or any state’s gay marriage ban, but she marveled at the “remarkable” shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.

Those comments belie Ginsburg's deep understanding of how this process works. It's not something that necessarily works best with a big Supreme Court smackdown. What's happening now is slow, but that slowness is crucial. Think of it as a slow awakening and a natural process. There's a clear consensus forming from the lower courts, and the lower Federal rulings accrete to form an organic precedent. It's not as immediately gratifying, but it's a better process than the Supreme Court taking it on before the time is right, potentially causing a great deal of chaos and divide.
posted by naju at 8:13 AM on October 6, 2014 [10 favorites]

Help an idiot out: Does this mean that when the mandate comes out, the entire 4th Circuit gets SSM?

I don't think anyone knows for sure.
posted by roomthreeseventeen at 8:14 AM on October 6, 2014 [1 favorite]

Help an idiot out: Does this mean that when the mandate comes out, the entire 4th Circuit gets SSM?

Yes. It may take a couple of days for others, who did issue stays pending appeal, but since the 4th didn't, those orders that were previously written are now in effect and are being published. 4th Circuit covers MD, NC, SC, VA and WV.
posted by eriko at 8:16 AM on October 6, 2014 [1 favorite]

According to the Virginia AG, the mandate will be issued at 1pm.
posted by roomthreeseventeen at 8:17 AM on October 6, 2014 [3 favorites]

From EqualityNC:

The 4th Circuit's mandate in favor of marriage will issue on October 6, making formal the invalidation of the Virginia marriage ban. The plaintiffs in North Carolina's cases, including the legal team at the ACLU of North Carolina, will now move quickly to get an order striking down the ban here in North Carolina.
posted by mediareport at 8:18 AM on October 6, 2014 [5 favorites]

It's not as immediately gratifying, but it's a better process than the Supreme Court taking it on before the time is right, potentially causing a great deal of chaos and divide.

I think this issue is more than ripe. The U.S. has spent the last few years arguing this issue in the legal and political sphere. Most people and both sides are expecting a ruling from the U.S. Supreme Court. And, most importantly, there are real people who want to get married and have been waiting for years.
posted by Area Man at 8:18 AM on October 6, 2014 [3 favorites]

Woohoo! That means my home town (Arlington, VA) can start issuing licenses this afternoon! I will be mos disappointed in them if they wait until tomorrow.
posted by tavella at 8:22 AM on October 6, 2014 [1 favorite]

Most people and both sides are expecting a ruling from the U.S. Supreme Court. And, most importantly, there are real people who want to get married and have been waiting for years.

The comfort of this particular denial of cert is that things will roll along with more confidence and speed from here on out. Although it's not a ruling on the merits, it's a clear sign from the Supreme Court stating "all seems to be well, carry on with striking down bans as you will, we won't interfere."
posted by naju at 8:24 AM on October 6, 2014 [5 favorites]

"A new day has dawned, and the rights guaranteed by our Constitution are shining through.

"All Virginians have the constitutional right to be treated fairly and equally, to have loving, committed relationships recognized and respected, and to enjoy the blessings of married life. We should all be proud that our fellow Virginians helped lead us forward.

"This is a tremendous moment in Virginia history. We will continue to fight discrimination wherever we find it, but today, we celebrate a moment when we move closer to fulfilling the promise of equality ignited centuries ago in Virginia, and so central to the American experience."
posted by roomthreeseventeen at 8:32 AM on October 6, 2014 [9 favorites]

Yes. You have to appeal to the appellate, then to the circuit

There is only one level of federal appeals courts, which are also called the Circuit Courts. District (or sometimes magistrate) -> Appeals/Circuit -> Supreme.
posted by T.D. Strange at 8:33 AM on October 6, 2014

I wonder if, since so many of the rulings in *favor* of marriage equality cite Scalia's dissent, a majority of the justices ultimately won't rule against equality (the liberal bloc because they support equality, Scaliza because he isn't willing to be shown as a knave or hypocrite by ruling against his own dissent despite his personal opposition).

What Scalia does when a case finally winds up at SCOTUS will be fascinating to behold.

Scalia has never, ever been particularly concerned about consistency (his own or other people's). He will rule against gay marriage and explain patronizingly why everybody who thought that his precedent said X is wrong and it actually said Y.

No, Scalia doesn't want a gay marriage case to come to SCOTUS because he knows he will lose. Scalia, Thomas and Alito are the only reliably anti-gay-marriage votes at the Supreme level; Kennedy generally goes pro-gay-rights and Thomas is a corporate conservative rather than a social rights conservative, and if it doesn't interfere with the increase of corporate power he's not going to try and get in the way of history, and the liberal justices will all vote in favour of gay marriage.

SCOTUS refusing to hear these cases is partly because the liberals know they don't need to force the issue - every circuit court that helps them is another nail in the conservative argument's coffin - and because Roberts is willing to at least let Scalia and company try to buy time. That's all this is.
posted by mightygodking at 8:44 AM on October 6, 2014 [7 favorites]

There is only one level of federal appeals courts, which are also called the Circuit Courts. District (or sometimes magistrate) -> Appeals/Circuit -> Supreme.

...but one of these cases might well start in a state court. So in Florida a (generic) case might start in the circuit court, get appealed to a district court, get further appealed to the supreme court, and from there get even more appealed to the other supreme court. Here in NY, a case might start in the supreme court and get appealed from the supreme court to the supreme court, from which it could be appealed to the appeals court, and from there to the supreme court.

Judicial nomenclature: because fuck you, students.
posted by ROU_Xenophobe at 8:44 AM on October 6, 2014 [10 favorites]

Can someone summarize?

I mean, simply this: am I happy, or just cautiously optimistic?
posted by aramaic at 8:58 AM on October 6, 2014 [1 favorite]

I mean, simply this: am I happy, or just cautiously optimistic?

Happy.
posted by Talez at 9:02 AM on October 6, 2014 [4 favorites]

I think, and someone correct me if I'm mistaken, it boils down to: SCOTUS has kicked the can down the road. If a Circuit-level court upholds bigotry (meaning Circuits are in disagreement), SCOTUS will be forced to rule to resolve the difference. Until/unless that happens, SSM is now the law of the land everywhere the Circuits which have overturned bans cover; 30 states + DC. The other 20 will have to continue the process as it's been going so far, by appealing up to the Circuit level.

So: happy. It seems unlikely at this point that a Circuit would rule in favour; SCOTUS has indicated by denying cert that they find no legal basis for overturning Circuit rulings outlawing SSM bans. Or even hearing arguments.

On the one hand, I'm annoyed; I would have liked to have seen SCOTUS tell the bigots to fuck off in no uncertain terms. Plus (again correct me if I'm mistaken) if SCOTUS did rule, that precedent stands more, um, solidly? than if the case is never decided at that level. On the other hand, the commenter above pointing out that SSM is something that's being decided organically and a multitude of times across the nation seems, to me, that it takes some ammunition away from the bigots and their usual frothing about 'activist' (meaning: you disagreed with me) judges.
posted by feckless fecal fear mongering at 9:07 AM on October 6, 2014 [2 favorites]

I would just like to register my excitement in a tangible way on a historically significant document.

[post comment]
posted by jragon at 9:09 AM on October 6, 2014 [3 favorites]

So marriage equality comes to 11 states pretty much all at once? This is newsfilter * 11 ;)

Well done Supreme Court for showing some fucking sense. Good luck and congratulations to anyone in those states who can now (or can shortly) get married.

Also, the title of the FPP is very confusing - even when I read the bit above-the-fold I thought all our hopes had been dashed against the rockiest of rocks.
posted by marienbad at 9:12 AM on October 6, 2014

I think, and someone correct me if I'm mistaken, it boils down to: SCOTUS has kicked the can down the road. If a Circuit-level court upholds bigotry (meaning Circuits are in disagreement), SCOTUS will be forced to rule to resolve the difference. Until/unless that happens, SSM is now the law of the land everywhere the Circuits which have overturned bans cover; 30 states + DC. The other 20 will have to continue the process as it's been going so far, by appealing up to the Circuit level.

They don't want to make a big sweeping change because, as Ginsburg stated, there's a big sweeping social change in America going on right now. People aren't ashamed to be gay, bigotry against gays is increasingly being seen as the same stupidity as other bigotry, allies are more vocal than ever before. More and more it's being seen as "acceptable" (whatever that means) to be gay.

But a big sweeping change by SCOTUS could cause a kneejerk reaction drawing back support in the electorate. If there's one trait in Americans that you can reliably count on it's their rejection to people telling them that they're wrong and then doubling down on their initial stupidity.
posted by Talez at 9:13 AM on October 6, 2014 [10 favorites]

The Casper Star-Tribune explains the situation in Wyoming a little bit:

By the Supreme Court declining to hear cases in Utah and Oklahoma, that means the Denver-based 10th Circuit Court of Appeals – which ruled in favor of gay marriage – will be the law of the land in the area that it has jurisdiction over, which includes Wyoming.

But same-sex couples in Wyoming won’t immediately be able to receive marriage licenses at county courthouses since the gay marriage suit in Wyoming is a state case and the 10th Circuit is a federal appeals court, Artery said.

However, the 10th Circuit struck down Utah’s gay marriage ban, and Artery is hopeful the Laramie County judge hearing the Wyoming gay marriage case will keep that in mind when deciding the Wyoming case, he said.

posted by Librarypt at 9:15 AM on October 6, 2014 [1 favorite]

Here's the Fourth Circuit's announcement.

From their link to Bostic v. Schaefer:

"FLOYD, Circuit Judge: Via various state statutes and a state constitutional amendment, Virginia prevents same -sex couples from marrying and refuses to recognize same - sex marriages performed elsewhere.
Two same -sex couples filed suit to challenge the constitutionality of these laws, alleging that they violate
the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district court granted the couples’ motion for summary judgment and enjoined Virginia from enforcing the laws . This appeal followed.
Because we conclude that Virginia’s same - sex marriage bans impermissibly infringe on its citizens’
fundamental right to marry, we affirm."

If I'm reading this correctly--and IANAL--Virginia gets marriage equality and recognition of same-sex marriages performed elsewhere today.
posted by Short Attention Sp at 9:16 AM on October 6, 2014

But same-sex couples in Wyoming won’t immediately be able to receive marriage licenses at county courthouses since the gay marriage suit in Wyoming is a state case and the 10th Circuit is a federal appeals court, Artery said.

Supremacy Clause, Ableman v. Booth. We're done here.
posted by Talez at 9:17 AM on October 6, 2014

Marion County Clerk’s Office will immediately begin issuing marriage licenses to same-sex couples! #IN4M #lgbt #Indiana
posted by roomthreeseventeen at 9:18 AM on October 6, 2014 [7 favorites]

Supreme Court On Gay Marriage: 'Sure, Who Cares'
posted by roomthreeseventeen at 9:19 AM on October 6, 2014 [9 favorites]

Oh, yeah, in particular, the cases denied cert had come from the 4th, 7th, and 10th Circuits. There are cases in the 5th, 6th, 8th, 9th, and 11th Circuits in progress.

The states in the 1st, 2nd, and 3rd have all made SSM legal and not appealed to the federal courts or have abandoned such appeals. Notably, NJ barred, was overturned at the state level, and chose not to appeal further.

So: By Circuit

1) Legal, no appeals being made (NH/ME/MA/RI)
2) Legal, no appeals being made (NY/VT/CT)
3) Legal, no appeals being made (PA/NJ/DE)
4) All bars overturned by Circuit, no cert. (WV/VA/NC/SC/MD) (was legal in MD)
5) Overturn held on appeal to 5th (TX), In Circuit (LA), in State court (MS)
6) Overturns held on appeal to 6th (MI, OH, KY), in Circuit court (TN)
7) All bars overturned by Circuit, no cert (IL/WI/IN) (was legal in IL and WI)
8) Overturns held on appeal to 8th (AR), In District (ND/SD/MO), no action (NE)
9) Legal (OR/CA/WA/HI/UT), held on appeal to 9th (ID), in District (AZ/MT)
10) All bars overturned by Circuit, no cert. (WY/UT/CO/KS/NM)
11) Overturned stayed on appeal to 11th (FL), in District (AL/GA)

And, by state:

Currently legal or about to be:
HI/WA/OR/CA/UT
WY/CO/KS/NM/OK
/MN/IA/WI/IL/IN
/WV/VA/NC/SC/MD
/PA/DE/NJ/NY/VT
/CT/RI/MA/NH/ME (Total 30)

Overturns stayed pending appeal:
ID/TX/AR/FL/MI
OH/KY (Total 7)

Litigation in Circuit Courts:
AK/AZ/MT/ND/SD
MO/TN/AL/GA (Total 0)

Litigation in District Courts:
NV/LA (Total 2)

Litigation in State Courts
MS (Total 1)

Illegal, no litigation in progress.
NE (Total 1)

Action expected soon:

6th: Bourke v. Beshear (Kentucky), DeBoer v. Snyder (Michigan), Henry v. Himes (Ohio), and Tanco v. Haslam (Tennessee)

9th: Latta v. Otter (Idaho), Sevcik v. Sandoval (Nevada), and Jackson v. Abercrombie, (Hawaiii-Attempting to overturn legalization.)

I suspect Nebraska has said "Whatever happens happens, why litigate now?" They're probably right, there are already several cases from the 8th at the circuit level, so anything they did now would get nowhere near a final ruling before it reached the 8th.

If there was going to be a circuit split, it's likely to be the 5th, 8th or 11th circuits. I don't see the 9th or 6th sustaining a ban.
posted by eriko at 9:20 AM on October 6, 2014 [43 favorites]

1) Legal, no appeals being made (NH/ME/MA/RI)

You're forgetting Puerto Rico, where there is a case.
posted by roomthreeseventeen at 9:21 AM on October 6, 2014

I mean, simply this: am I happy, or just cautiously optimistic?

Another way to answer the question.
posted by feckless fecal fear mongering at 9:24 AM on October 6, 2014

I feel sorry for Clearchannel. They have to keep making new promos for Pride Radio every time this happens (31 down, 20 to go! The beat of marriage equality!). I think they've gone through half a dozen this year alone.
posted by Talez at 9:29 AM on October 6, 2014 [3 favorites]

Marriage equality has come to Colorado.
posted by roomthreeseventeen at 9:30 AM on October 6, 2014 [5 favorites]

It's a privilege to watch history being made, brick by brick by patient brick... And for a change, something to be happy about.
posted by RedOrGreen at 9:31 AM on October 6, 2014

Here in Virginia, it took us eight years to correct our vote that added a gay marriage ban to the state constitution. It was way too late in coming, but I'm glad it happened. I'm also glad that our newly-elected Democratic attorney general, who defeated his extremely-conservative rival by 907 votes (0.04% margin), had a hand in some of the court cases leading to this.
posted by introp at 9:33 AM on October 6, 2014 [6 favorites]

scotus is still defacto treating this as a states rights issue

Here is a picture of those other states.
posted by Decani at 9:39 AM on October 6, 2014 [6 favorites]

You're forgetting Puerto Rico, where there is a case.

(Point of order: I said "states." PR is not yet one.)

Damn, forgot Not States. But we should look at the Territories/Unicorporated areas as well.

DC: Legal (4th Circuit ruled, no cert, was legal before the ruling.)

PR: Not legal (1st Circuit, which hasn't made a blanket ruling.)

US Virgin Islands: Not legal (3rd Circuit, which also hasn't made a blanket ruling.)

America Samoa, Guam, Northern Mariana Islands. Not legal (9th Circuit, no ruling yet.)

Baker Island, Jarvis Island, Johnston Atoll, Kingman Reef, Palmyra Island : No laws, uninhabited. (9th Circuit)

Navassa Island: No laws, uninhabited. (Guessing 11th, but don't know -- it's in the Caribbean.)

Wake Island: Unknown. Most people there are USAF and the laws of their home state would apply. UCMJ applies to service personnel. (9th Circuit)

I'm not touching cases like Palau, which is de jure independent but de facto dependent on the US for a number of things. I suspect that, for this issue, they have complete home rule.
posted by eriko at 9:39 AM on October 6, 2014 [11 favorites]

Does Colorado make it 25 states?
posted by qi at 9:41 AM on October 6, 2014

A few clarifications. These have been mentioned above, but I am aggregating.

This is not the Supreme Court deferring to the States. The district and circuit courts are federal courts, and are overturning same-sex marriage bans on federal constitutional grounds. Same-sex marriage is no longer a states' rights issue and hasn't been since Windsor.

This does not mean that same-sex marriage is now legal in every state in these five circuits. Although it kinda does, unofficially. This ruling effectively upholds the five circuit court rulings for which they declined to hear an appeal, and those five rulings render same-sex marriage legal in the five states that were the subject of those rulings (I forget which ones). However, for the other six states in those circuits, district court judges in those states are bound to follow the ruling of the circuit court (yes, they could go the other way, but they would just be reversed on appeal, so why bother?). So, same-sex marriage in those states is basically a fait accompli, and it's just a matter of working its way through the courts. As someone else said, the states' secretaries of state may see the writing on the wall and choose to start issuing marriage licenses.

It's not unprecedented for the Supreme Court to kick the can on such an issue. By the time the Court overturned antimiscegenation laws in Loving v. Virginia in 1967, either 34 or 37 states (I forget how many) had already rejected such laws. Today's ruling means that same-sex marriage is now legal in 24 states, and clears the way for legality in another 6.

One pro-ban ruling doesn't make a circuit split. District court judges do crazy stuff all the time. It is the circuit court (appellate) opinions that the Supreme Court is looking at.
posted by Ben Trismegistus at 9:45 AM on October 6, 2014 [12 favorites]

qi, yes, I believe CO is 25, pending the other states deciding what to do.
posted by roomthreeseventeen at 9:52 AM on October 6, 2014 [1 favorite]

Worth resurrecting this 2012 comment from NC House speaker Thom Tillis (now running against Kay Hagan for a US Senate seat), just before the passage of NC's Amendment One:

“It’s a generational issue,” Tillis said. “The data shows right now that you are a generation away from that issue.” [...]

“If it passes, I think it will be repealed within 20 years,” Tillis said.

Oops. Looks like his data was 18 years off.
posted by mediareport at 9:56 AM on October 6, 2014 [3 favorites]

Marriage equality has come to Colorado.

Time to start planning my gay weed wedding!
posted by showbiz_liz at 9:57 AM on October 6, 2014 [1 favorite]

it takes four justices to grant cert. that they couldn't get four justices suggests that they don't have the votes, or that the anti-SSM justices knew there would be a smackdown if they took the case.
posted by bruce at 9:57 AM on October 6, 2014 [1 favorite]

Halfway point then.
posted by qi at 9:59 AM on October 6, 2014

* This is the "four kings and an ace" hand in poker. Yes, four aces (the SCOTUS) could beat it, but since you're holding one of the aces, nobody can have four aces. If SCOTUS refuses to hear and all the kings, I'm mean circuits, overturn bars, that's just as good as SCOTUS doing so.

So what would a Straight Flush be? Constitutional Amendment?
posted by splen at 10:12 AM on October 6, 2014 [1 favorite]

it takes four justices to grant cert. that they couldn't get four justices suggests that they don't have the votes, or that the anti-SSM justices knew there would be a smackdown if they took the case.

This is the piece I haven't seen anyone talking about yet, but may be the most important harbinger of things to come. Windsor (the DoMA case that started this wave of circuit court rulings) showed us that there are 4 votes against marriage equality on the Supreme Court (Roberts, Scalia, Alito, Thomas, though I could imagine Roberts getting cold feet). And I have a hard time imagining any of the 4 Democratic-appointed justices voting against marriage equality. The question has always been about Justice Kennedy, who wrote a very carefully worded opinion in the Windsor case, striking down DoMA but avoiding taking on state bans. The question has always been which way Kennedy would jump when forced to deal with the main issue of constitutionality: would he follow the equal protection logic of his Windsor opinion and make marriage equality a constitutional right, or would he fall back behind federalism and tradition and leave it up to the states?

For cert to be denied, at least one of those conservative justices (plus Kennedy and all the liberals) would need to vote against it, which means that they have decided that they'd rather accept immediate marriage equality in 5 states, with the likelihood of extension to 6 more, instead of gambling all the marbles on Kennedy's opinion on the question of whether or not same-sex marriage is a constitutional right.

Given that those conservative justices are in a better position to judge their colleague's state of mind than just about anybody, that sounds like very hopeful news indeed.
posted by firechicago at 10:14 AM on October 6, 2014 [6 favorites]

Once all thirty of those states implement same-sex marriage, 60 percent of the population of the United States will be living in states with marriage equality. That's up from 44 percent before today's Supreme Court [non-]action.
posted by beagle at 10:14 AM on October 6, 2014 [5 favorites]

I don't need no arms around me
And I don't need no drugs to calm me.
I have seen the writing on the wall.
Don't think I need anything at all.
No! Don't think I'll need anything at all.
All in all it was all just bricks in the wall.
All in all you were all just bricks in the wall.
posted by Freedomboy at 10:15 AM on October 6, 2014 [1 favorite]

Talez : The salt over at Freerepublic.

I always find it interesting that most of the commenters over at FR seem to only be able to speak in short declarative sentences.

They're like hateful little bullet-points of fear of change.
posted by quin at 10:26 AM on October 6, 2014 [5 favorites]

I'm waiting for the Fifth Circuit to rule on whichever case they get first. That's going to be the split.
posted by immlass at 10:29 AM on October 6, 2014

I can't say I'm surprised by this in light of the Court's decision in Hollingsworth v. Perry. The votes are there to make a sweeping pronouncement in favor of gay marriage, but Ginsberg, Breyer, and Kagan must want to put it off to minimize any backlash (see also Ginsberg's comments that Roe was correctly decided, but decided to soon). Roberts and Scalia seem to want push it off as long as possible because they're opposed to it but don't see any way to stop it.

On the other side in Hollingsworth, Alito and Thomas are clearly opposed to gay marriage, but probably just want to resolve the question and get it over with. Kennedy is clearly champing at the bit to take the case so he can write the sweeping opinion affirming the unconstitutionality of gay marriage bans that will be the capstone to his Lawrence v. Texas and US v. Windsor line of opinions. And Sotomayor, well, she's probably just less gradualist about the whole thing than the other liberals.

It is somewhat interesting that the Court denied cert, since it only takes four votes to take on a case. You'd think that the Hollingsworth dissenters would all be inclined to grant cert, but perhaps Thomas and Alito just don't want to deal with the issue unless they have to, or perhaps the other liberals convinced Sotomayor that there's no rush.

Kennedy is probably peeved about this situation, though.
posted by learn to read at 10:39 AM on October 6, 2014 [2 favorites]

it takes four justices to grant cert. that they couldn't get four justices suggests that they don't have the votes, or that the anti-SSM justices knew there would be a smackdown if they took the case.

That's an excellent point, and one I forgot to mention. As bruce said, it only takes four Justices to grant certiorari (that is, to hear the appeal). This means that, not only did the four liberals plus Kennedy vote to deny cert, but at least one conservative Justice did as well. My money's on Roberts, who I think is increasingly concerned about his legacy.
posted by Ben Trismegistus at 10:40 AM on October 6, 2014

Can somebody break down the process/timeline for the law-challenged?

Your state ACLU would be the best folks to call for that info in SC. Here in NC, we're hoping for something closer to hours and days, not weeks, but it's hard to tell.
posted by mediareport at 10:41 AM on October 6, 2014 [1 favorite]

Two temporary steps forward for red states that tried to take away rights, but three longer-term steps back for the country.

Seems like this was a missed opportunity to put down another brick towards equal protection, and the trajectory of the Supreme Court has been increasingly socially conservative over time, which increases the risk of an outcome in a hearing down the road that will damage our rights.
posted by a lungful of dragon at 10:43 AM on October 6, 2014

It's more than a half way point. By doing nothing, the court does two things:
- It creates a huge new class of people- those who get married in those states and then larger circuits where these decisions now take effect - who would be profoundly harmed if the decisions were reversed. The harm of annulling these marriages goes well beyond the harm of preventing them. Essential then, the decision will not be reversed.
- By allowing an irreversible change in these circuits, the court is signaling to the other circuits that if they split on this, the overwhelming odds are that they will be reversed.

I'm not even a casual court watcher, but as I think through the implications of of what the court did, it's clear that this was their chance to step in.
posted by wotsac at 10:45 AM on October 6, 2014 [6 favorites]

At a crossroads on gay unions

By John Lewis, 10/25/2003

FROM TIME to time, America comes to a crossroads. With confusion and controversy, it's hard to spot that moment. We need cool heads, warm hearts, and America's core principles to cleanse away the distractions.
We are now at such a crossroads over same-sex couples' freedom to marry. It is time to say forthrightly that the government's exclusion of our gay and lesbian brothers and sisters from civil marriage officially degrades them and their families. It denies them the basic human right to marry the person they love. It denies them numerous legal protections for their families.
This discrimination is wrong. We cannot keep turning our backs on gay and lesbian Americans. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I've heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.
Some say let's choose another route and give gay folks some legal rights but call it something other than marriage. We have been down that road before in this country. Separate is not equal. The rights to liberty and happiness belong to each of us and on the same terms, without regard to either skin color or sexual orientation.
Some say they are uncomfortable with the thought of gays and lesbians marrying. But our rights as Americans do not depend on the approval of others. Our rights depend on us being Americans.
Sometimes it takes courts to remind us of these basic principles. In 1948, when I was 8 years old, 30 states had bans on interracial marriage, courts had upheld the bans many times, and 90 percent of the public disapproved of those marriages, saying they were against the definition of marriage, against God's law. But that year, the California Supreme Court became the first court in America to strike down such a ban. Thank goodness some court finally had the courage to say that equal means equal, and others rightly followed, including the US Supreme Court 19 years later.
Some stand on the ground of religion, either demonizing gay people or suggesting that civil marriage is beyond the Constitution. But religious rites and civil rights are two separate entities. What's at stake here is legal marriage, not the freedom of every religion to decide on its own religious views and ceremonies.
I remember the words of John Kennedy when his presidential candidacy was challenged because of his faith: "I believe in an America that is officially neither Catholic, Protestant, nor Jewish -- where no public official either requests or accepts instructions on public policy from the pope, the National Council of Churches, or any other ecclesiastical source -- where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials -- and where religious liberty is so indivisible that an act against one church is treated as an act against all."
Those words ring particularly true today. We hurt our fellow citizens and our community when we deny gay people civil marriage and its protections and responsibilities. Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family. Let us recognize that the gay people living in our house share the same hopes, troubles, and dreams. It's time we treated them as equals, as family.

John Lewis, a Democratic congressman from Georgia, was one of the original speakers at the 1963 March on Washington and is author of "Walking With the Wind: A Memoir of the Movement."
posted by robbyrobs at 10:48 AM on October 6, 2014 [10 favorites]

While it's frustrating to those in the slower states, I think it's pretty legit for the SC to wait until they have a split to weigh in.
posted by tavella at 10:51 AM on October 6, 2014

I'm sitting in my office in Charleston, SC trying to figure out how long it might be before my partner and I can get married (and have it actually mean something here). Can somebody break down the process/timeline for the law-challenged?

Here is a semi-informed guess:

There is a case pending in South Carolina, and it was stayed (which means it was put on hold) pending the outcome of the 4th Circuit case. Now that the 4th Circuit case is over, someone (probably the plaintiffs) will make a motion in court asking the federal district judge to un-stay the case. The judge will grant that motion. Unless your state government gives up, the judge will probably have the parties each submit briefs arguing why they should win the case in light of the 4th Circuit's decision. There could be a couple rounds of briefs. After considering those briefs and any arguments made at a hearing, the judge will should issue an order striking down the South Carolina ban (the district judge is bound to follow the 4th Circuit's precedent). The State can seek to have that stayed by bringing motions at the district court and court of appeals, but I don't think a stay will be granted after what the Supreme Court did today. I think this process will play out over the next 1-3 months or so, but a lot depends on the invidividual judge. The judge could slow things down by setting an extended briefing schedule, putting hearing date out, and taking a long time to reach the inevitable decision. Alternatively, the judge could move quickly figuring this issue is basically resolved and it would be good to clear the docket and move onto other cases.

South Carolina would likely appeal its loss at the district court, but (1) it is likely to lose given that the 4th Circuit just decided this issue and (2) I'm guessing the district court's decision won't be stayed in the meantime. So, the right to appeal probably wouldn't have an effect on you.
posted by Area Man at 10:56 AM on October 6, 2014 [1 favorite]

> "I'm sitting in my office in Charleston, SC trying to figure out how long it might be before my partner and I can get married ..."

As far as I can tell --

1) The Fourth Circuit's Virginia ruling will have to be certified in South Carolina. As far as I can tell, there isn't really any doubt that it will be, but how long this will take is unclear. (The internet believes that the answer is "soon".)

After that,

2) County clerks will wait for instructions from federal judges on how to proceed with any same sex marriage licenses.

Then, I believe, it's official.
posted by kyrademon at 10:56 AM on October 6, 2014

bruce: it takes four justices to grant cert. that they couldn't get four justices suggests that they don't have the votes, or that the anti-SSM justices knew there would be a smackdown if they took the case.

I don't think it's the exact opposite. The Windsor majority - including Kennedy - will 99% certainly be the majority in whatever gay marriage case makes it to the Court. I think this is more a matter of the liberals on the Court wanting to take it slow, to follow society's lead rather than force society to follow their lead. Maybe it's over-cautious, but the Court is (sometimes) concerned about coming off as an anti-democratic institution pushing around a reluctant society.

Not to mention there's no real circuit split, yet, which is a biggie for whether the Court takes the case. As mentioned earlier, the only court of appeals to come out against gay marriage was the 8th, and that happened pre-Windsor, so that circuit will likely have to revisit the issue in light of Windsor.

firechicago: The question has always been about Justice Kennedy, who wrote a very carefully worded opinion in the Windsor case, striking down DoMA but avoiding taking on state bans. The question has always been which way Kennedy would jump when forced to deal with the main issue of constitutionality: would he follow the equal protection logic of his Windsor opinion and make marriage equality a constitutional right, or would he fall back behind federalism and tradition and leave it up to the states?

I really don't think Kennedy is a question. Just because Kennedy is overall a centrist conservative doesn't mean that he is on the gay rights issues. Kennedy has always been at the forefront of such rights issues in the Court. If he voted in favor of gay marriage bans, that would be a whiplash-inducing about-face.

To the extent that he's been careful in his decisions, that's just how the courts work. They don't address issues that aren't in front of them. Don't look to his asides in his previous opinions in which he states that he isn't addressing constitutional rights to gay marriage or the unconstitutionality of state bans. That's all pro forma - those issues weren't before the Court in those instances. Look to the legal reasoning and rhetoric he uses, which are inevitably so broad and sweeping that no meaningful argument could be made that they don't also apply to gay marriage.
posted by learn to read at 10:59 AM on October 6, 2014 [1 favorite]

Heh. Apparently the media and politicians are hanging around the Arlington County courthouse, waiting for a same sex couple who aren't already married to show up. A lot of the local couples have apparently recently hopped over to DC to get married, so they are already accepted by Virginia as of 1pm.
posted by tavella at 10:59 AM on October 6, 2014

I'd love to know how the same Supreme Court can be so right about same-sex marriage and so wrong about women's rights.
posted by EmpressCallipygos at 11:01 AM on October 6, 2014 [3 favorites]

Video of the Salt Lake City county clerk announcing that they will resume providing marriage licenses starting…now.
posted by Asparagirl at 11:05 AM on October 6, 2014 [1 favorite]

EmpressCallipygos: I'd love to know how the same Supreme Court can be so right about same-sex marriage and so wrong about women's rights.

Don't think of it as "the Supreme Court". It's all Justice Kennedy. The Court has four liberal justices who are pro gay and women's rights, four conservative justices who are anti, and Kennedy in the middle - down with the gays but feeling icky about abortion.
posted by learn to read at 11:11 AM on October 6, 2014 [1 favorite]

Woohoo! I'm doing this in my living room for all newly equal states!
_{Though, not nearly as well.}
posted by ApathyGirl at 11:28 AM on October 6, 2014

Robbie Kaplan (the NYCLU lawyer who argued Windsor)) said on MSNBC she believes that the 6th and 9th Circuits will both rule in favor of marriage equality, both perhaps this week.
posted by roomthreeseventeen at 11:39 AM on October 6, 2014 [1 favorite]

Yay! A couple finally turned up at the Arlington Courthouse to get married. But really, the lack of rush is a good sign. People know that the AG is in favor, the governor is in favor, the Supreme Court has said carry on. They don't need to hurry to put down a marker before a stay or appeal, they can plan out their wedding for how and when they want.

So, for people that say elections don't matter: 907 votes were the difference here.
posted by tavella at 12:30 PM on October 6, 2014 [5 favorites]

As predicted, the South Carolina Attorney General announced he will keep fighting to uphold the state's constitutional ban on gay marriage.

The writing is on the wall, but the bigots here will keep dragging it out and wasting tax payer money out of spite.
posted by Roommate at 12:40 PM on October 6, 2014

907 votes ... after the recount. After the initial tally, Herring was only 165 votes up after the initial ballot.

There was a line for licenses this afternoon in Charlottesville, and several marriages have already been performed. Of course, it's harder/less convenient to pop into DC to get married down here, so there might have be a smidge more rushiness.
posted by julen at 12:45 PM on October 6, 2014 [2 favorites]

Great photos and stories in Dani Kass' Twitter feed from the courthouse in Charlottesville, Virginia.
posted by Asparagirl at 1:01 PM on October 6, 2014 [6 favorites]

The National Organization for Marriage has issued a press release:

We are surprised and extremely disappointed that the US Supreme Court has refused to grant review of the same-sex marriage cases pending before them. This is wrong on so many levels .

They'll no doubt have some success raising money with this, but, still, I love the sound of gnashing conservative teeth.
posted by Short Attention Sp at 1:19 PM on October 6, 2014

Behind the Scenes: SCOTUS Media Room on Opening Day
posted by roomthreeseventeen at 1:20 PM on October 6, 2014

Most people there are USAF and the laws of their home state would apply.

Wow, how does that work? Air Force couples could be living on a base where marriage was legal but still not have it count because they are from a state where it isn't, or vice versa?
posted by the agents of KAOS at 2:32 PM on October 6, 2014

And the wall continues to crumble, brick by brick at first, then huge sections tumble down until the sunlight comes streaming in...
posted by Mental Wimp at 2:44 PM on October 6, 2014

>>Most people there are USAF and the laws of their home state would apply.

Wow, how does that work? Air Force couples could be living on a base where marriage was legal but still not have it count because they are from a state where it isn't, or vice versa?

My understanding was that post-Windsor, the Obama administration was attempting to use a "place of celebration" rule wherever possible. I.e., if your marriage was legal where it was performed, the military counts it.
posted by Blue Jello Elf at 3:14 PM on October 6, 2014 [1 favorite]

As predicted, the South Carolina Attorney General announced he will keep fighting to uphold the state's constitutional ban on gay marriage.

I was at first irritated but then actually heartened. I think that Haley and Wilson are saying the absolute least they can to cover their butts with the base while still basically throwing in the towel. Seeing his little 2 sentence release on letterhead kind of drove that home for me; could be wrong but I hope I'm not.
posted by ftm at 3:19 PM on October 6, 2014 [2 favorites]

You're right ftm, in the context of the official release it definitely seems more like he is just going through the motions. Hopefully the court issues a ruling in that case sooner than later.
posted by Roommate at 4:14 PM on October 6, 2014

I think we can assume that the pro-marriage justices are happy enough to stack up as many appeals court victories as possible to make the eventual ruling seem logical.

As for why the four hold-outs didn't unite, if I had to guess, it's one of two options:

- Roberts just doesn't want another ugly loss on his plate. He's generally seemed quite politically and legacy-minded, so why pull a loser into the docket before he has to?

- It could be "and maybe the horse will sing" situation. The hardcore haters like Scalia know that if they bring it before the court now that they will lose, and if they waits then just maybe a liberal justice retires or dies and gets replaced by a more conservative one. It's hard to believe it's a realistic view -- even if they get such a justice, it would be at least 2 years down the road, by which time there will be settled law in more than half the states, and hundreds of thousands of same-sex marriages. But Scalia has seemed downright crazy on the subject, so maybe.
posted by tavella at 5:21 PM on October 6, 2014 [1 favorite]

This analysis claims that gay people can now get legally married in more states than where they are legally protected from job discrimination and that the gap is likely to widen.
posted by une_heure_pleine at 5:29 PM on October 6, 2014 [1 favorite]

On the evening of Oct. 6, 1998, Matthew Shepard was abducted and attacked in Laramie, Wyo., because he was gay. Today, on the 16th anniversary of that terrible event, the U.S. Supreme Court denied appeals seeking to block the rights of loving, committed same-sex couples — and once again October 6th is a pivotal day in LGBT history.
posted by roomthreeseventeen at 6:02 PM on October 6, 2014 [13 favorites]

What is harder to imagine is why some of the Court’s more conservative Justices didn’t join forces to grant review. Indeed, it was nearly impossible to fathom that they would allow the lower-court decisions striking down state bans on same-sex marriage to go into effect without a fight, even if (as the conventional wisdom has surmised) they remained concerned about their ability to persuade Justice Anthony Kennedy to join them in upholding the bans. But apparently they did, and we may never know the full story until a Justice’s private papers are released, many years from now.

Here's how I see it. The 4 conservatives should assume, based on what they know about their other 5 colleagues, that any Supreme Court decision on this issue would conclude that same-sex marriage is a constitutional right. (If you read what Kennedy has written in Windsor v US and Lawrence v Texas, I think it's pretty obvious he's fundamentally on the right side.) Now, the conservatives might personally dislike that result — but they're smart enough to realize that's the only result that can possibly be supported by citations to Supreme Court case law. Or perhaps they basically think that'd be a fine result, but they're uncomfortable enough with it that they'd rather not be the ones to make the decision. Even if they're firmly convinced that the bans are constitutional, surely they realize that the most they could accomplish is a dissenting opinion with no legal effect; the only effect would be to tarnish their legacies and forever associate themselves with "the wrong side of history." In short, the conservatives had no good way to decide the case. So they decided they'd rather not decide it.
posted by John Cohen at 6:21 PM on October 6, 2014

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posted by Jacqueline at 6:46 PM on October 6, 2014

10 day hold, and some of the folks in Raleigh are up to their normal shenanigans:

Phil Berger, president pro tem of the N.C. Senate, and Thom Tillis, speaker of the N.C. House of Representatives, two of the Republican leaders who helped shepherd Amendment One to a statewide referendum, said late Monday they planned to take on the legal battle to defend the ban that North Carolina Attorney General Roy Cooper has said he no longer would fight to keep.

“The people of North Carolina have spoken, and while the Supreme Court has not issued a definitive ruling on the issue of traditional marriage, we are hopeful they will soon,” Tillis and Berger said in a joint statement. “Until then, we will vigorously defend the values of our state and the will of more than 60 percent of North Carolina voters who made it clear that marriage is between one man and one woman.”

Amendment One was approved 61-39 percent, yet only 21 percent of North Carolina’s registered voters cast ballots in favor of the change.
posted by joycehealy at 7:02 PM on October 6, 2014

Man, I am really going to have to get serious about finding some dude to gay marry me, because my mom is going hammer and tong at getting me married off and in some little Victorian house that me and my husbear can restore together. Yeah, my mom now knows what a husbear is. It's the world of the future.

I've pointed out that the last goddamn thing in the world I want is some shitty ol' broke down Victorian money hole when I could have my nice small apartment and spend Victorian restoring money on modular synthesizers, mustache wax, and a medium-sized pack of dingoes.

But this is the world of the future, and it sure took its fucking time.
posted by sonascope at 7:14 PM on October 6, 2014 [8 favorites]

Oh, and by the way, I just want to take a moment to say that I called it. From August 22:

I've thought about this a lot. If there's no circuit split (still waiting to see what the Sixth Circuit will do), it's entirely possible that the Court denies cert or issues a per curiam opinion stating only that there's no disagreement among the federal circuits, so there's no need for the Court to rule on the issue. When I've stated this in the past, others have said that there's no way the Court will pass up the opportunity to have the final say on this issue. That's probably true, but I can see them kicking the ball down the road.

posted by Ben Trismegistus at 7:33 PM on October 6, 2014 [3 favorites]

Ben Trismegistus, are you a wizard?
posted by feckless fecal fear mongering at 10:02 PM on October 6, 2014 [1 favorite]

From the ultra-conservative Sutherland Institute, an unofficial mouthpiece of the Mormon church, comes this gem of a statement:

"Children are entitled to be raised by a married mother and father. Sutherland Institute is deeply disappointed that the Supreme Court has failed to correct the lawlessness of lower courts that have deprived the people of Utah and other states of their ability to protect that entitlement. While it appears that Utah is being forced by the federal courts to recognize same-sex marriages, there are still other states whose laws the courts have not yet disrupted. We will provide whatever support we can to those states and hope the Supreme Court will reconsider this unwise action in a future case."

Emphasis mine. I copypasted the whole thing rather than drive traffic to their site. If you really feel the need, here's the link.
posted by Purposeful Grimace at 11:04 PM on October 6, 2014

"Children are entitled to be raised by a married mother and father."

Utah law forbids divorce, then? No? Then shut your piehole, Sutherland Institute.
posted by Gelatin at 5:16 AM on October 7, 2014 [6 favorites]

The Virginia chapter of the ACLU used a photo of the first Richmond couple to get their marriage license (and get married right outside the courthouse!) yesterday on social media, and I inadvertently ended up in the photo because I was there covering the news for my own employer.

I don't always photobomb gay weddings, but when I do, the ACLU always gets involved.
posted by emelenjr at 6:00 AM on October 7, 2014 [9 favorites]

I don't always photobomb gay weddings, but when I do, the ACLU always gets involved.

Stay liberated, my friends.
posted by EmpressCallipygos at 6:39 AM on October 7, 2014 [7 favorites]

Okay, I'm confused: is SSM legal (as of this morning) in 24 states, or in 30? And bonus question: I've heard numbers ranging from 60% of the US population is now living in SSM-legal states to 80% --- anybody got a definitive answer? (Say if 24 states it's x%, if 30 states it's y%)

And I do have one big complaint with this SCOTUS ruling: all along, I've been hoping to be down at the courthouse cheering on the newlyweds..... instead, I spent yesterday afternoon incommunicado, and missed the whole thing. Dammit. Cheers y'all, but I really wanted to toss flower petals atcha.
posted by easily confused at 7:38 AM on October 7, 2014

Okay, I'm confused: is SSM legal (as of this morning) in 24 states, or in 30?

Today, 25. In the next week or so, it should be 30, as the attorneys who have pending cases in the remaining states in those circuits affected file for immediate judgments for their plaintiffs.
posted by roomthreeseventeen at 7:40 AM on October 7, 2014 [2 favorites]

Ugh. More news about the situation in Wyoming. Our governor is a douchebag.
posted by Librarypt at 8:05 AM on October 7, 2014

So what would a Straight Flush be? Constitutional Amendment?

Yes. Anything that SCOTUS rules unconstitutional can be made constitutional by explicit amendment. And a Straight Flush is a push with Straight Flush, anything made by explicit amendment can be unmade with another straight flush (see the 18th Amendment, made null and void by the 21st Amendment.)

Not to mention there's no real circuit split, yet, which is a biggie for whether the Court takes the case.

I think this is the real reason. If they feel that the correct precedent is being made by the circuits, there's no reason for them to step in -- only if a circuit makes a ruling opposing the other circuits happens. A writ means a bunch of work is going to need to be done, and if the right ruling comes out without them having to drop a writ and take the case, then why do the extra, unneeded work.

So, I think this is simply "This is what it is, and why increase our workload when it's happening by itself." If Circuits 1 through 11 all overturn bans, it's just as effective as if SCOTUS did the same -- and if SCOTUS never takes up a case that could overturn that precedent, it holds just as strongly as if SCOTUS made the precedent itself.

The real question is the 5th and 8th circuits. I'm confident the 11th will join the rest, but the 5th is the Deep South, and the 8th is the Conservative Heartland (read conservative as "resistant to any change, even though many in those states are politically conservative as well.) The 8th will be the last to rule, simply because cases are already in Circuit in the 5th and 11th, but are still at the state and district level in the 8th.

However, if both the 5th and 11th concur with the 4th, 7th and 10th, then I doubt the 8th would be the standout. So, if anybody is going to split here, it'll be (as noted repeatedly above) the 5th -- esp. since there is at least one district ruling upholding the ban.
posted by eriko at 8:37 AM on October 7, 2014 [2 favorites]

The noise from Republicans in power in some states who say they intend to keep fighting seems to me designed solely to placate the rabidly anti-gay members of their base. They've seen Tea Party challengers succeed in unseating incumbents in primaries too often to ignore that base.

They can toss all the red meat statements they like. They're losing and they know it. At best they can waste money and delay, while protecting their right flank from attack.
posted by mediareport at 8:56 AM on October 7, 2014 [2 favorites]

I also suspect that the conservative Justices are hoping that, if one of the Circuits upholds a ban, it will do so using some sort of fresh legal reasoning or support. The existing arguments against gay marriage have been thoroughly debunked, and an appeal of the existing cases would be a retread of the same rejected arguments. The conservative Justices would have nothing to cling to in an attempt to sway Kennedy or others.

If a Circuit upholds a ban, however, especially for a new reason, the conservatives will be in a much better position. They will be in a position of choosing one of two conflicting results, rather than the difficult position of bucking consensus. And they will have new fuel with which to attempt to persuade their colleagues.
posted by Ben Trismegistus at 9:04 AM on October 7, 2014 [2 favorites]

LOL: Oklahoma Gov. Mary Fallin, as The New Civil Rights Movement reported last night, made clear she is vehemently opposed to allowing same-sex marriage. The divorced GOP governor actually railed against "unelected federal justices" and their "D.C. values."
posted by roomthreeseventeen at 9:37 AM on October 7, 2014

North Carolina AG tells counties: Get ready for same-sex marriage
posted by roomthreeseventeen at 9:50 AM on October 7, 2014 [4 favorites]

W. Va. Marriage Update: Fed trial court judge calls for state response by 10/21, w reply by 7 days later
posted by roomthreeseventeen at 11:14 AM on October 7, 2014 [1 favorite]

And now Nevada and Idaho, as well. Mandate will go into effect next Tuesday if there is no SCOTUS appeal.
posted by roomthreeseventeen at 1:07 PM on October 7, 2014 [2 favorites]

Gay marriage bans struck down in Western states

"A federal appeals court Tuesday struck down gay marriage bans across the West, bringing to 35 the number of states where same-sex couples can marry.

The decision by the U.S. 9th Circuit Court of Appeals specifically strikes down same-sex-marriage bans in Idaho and Nevada, but it applies to all of the circuit court’s states and overturns similar prohibitions in Alaska, Arizona and Montana."
posted by VikingSword at 3:54 PM on October 7, 2014 [6 favorites]

...Another one (five) bites the dust, woohoo, another one bites the dust...
posted by tavella at 4:08 PM on October 7, 2014

Wow. Up to 35 (when the bureaucratic paperwork clears and the obstructionists are booted out of the way.) Yay!

Does anyone know if there's a reason that the Circuit Courts most likely to uphold bans are turning out to be the last ones to weigh in? (5th, 6th, and 11th ... despite what has been said previously on this thread, the 6th is not at all a sure thing.) Is it just coincidence, or is there something specific going on?
posted by kyrademon at 4:11 PM on October 7, 2014

Does anyone know if there's a reason that the Circuit Courts most likely to uphold bans are turning out to be the last ones to weigh in?

I think it's the order that the litigation was filed in, mostly, and whether or not the attorneys filed for summary judgment, etc.
posted by roomthreeseventeen at 4:17 PM on October 7, 2014

There was a deliberate strategy of the national groups supporting the cases to start with the most promising states and work their way down the red spectrum. These are expensive cases, so it would be hard for any given couple to finance it on their own. I believe there's been some arguments, in fact, because of people starting appeals in some of the deep red areas and whether this could throw things off -- I believe Boies and Olson jumped into some cases that the national groups would have preferred that they did not.

I've basically heard the same thing, except that it isn't just some simple red to blue spectrum. Lambda Legal carefully selected Iowa for a relatively early suit even though the state itself is purplish. (Really, that court has such a proud history of getting the big issues of freedom and equality right. Their first ever opinion rejected slavery and freed a man. They rejected segregated education in 1868, admitted women to the practice of law before any other state, etc.)
posted by Area Man at 4:41 PM on October 7, 2014 [1 favorite]

Holy cats!!!

I was just happy-happy, reading this thread and celebrating for all those other people in those other states that had SSM bans overturned when all of a sudden, BOOM! VikingSword posted that link about the 9th Circuit ruling today, too.

That's...that's Arizona. That's my state. That's my horribly fucked up state, right there, now with a Circuit Court ruling overturning SSM bans.

I'm going to be ecstatic in a moment when it sinks in, but right now I think I'm a little stunned.
posted by darkstar at 6:37 PM on October 7, 2014 [5 favorites]

From a footnote in the 9th Circuit opinion (via):

He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

posted by Blue Jello Elf at 7:15 PM on October 7, 2014 [17 favorites]

You guys. YOU GUYS.

Clark County, Nevada just put out a statement.

VEGAS GAY WEDDINGS START TOMORROW (WEDNESDAY) AT 2 PM.
posted by Asparagirl at 7:59 PM on October 7, 2014 [9 favorites]

Also in that article: to celebrate the end of the ban, Chapelle Delamour [sic!] in Las Vegas is offering free wedding packages to same-sex couples tomorrow.
posted by Asparagirl at 8:01 PM on October 7, 2014 [1 favorite]

Blue Jello Elf: I wanna favorite that quote a couple dozen times!
posted by easily confused at 4:35 AM on October 8, 2014 [2 favorites]

He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies.

.....LIFE does that.
posted by EmpressCallipygos at 4:39 AM on October 8, 2014 [2 favorites]

time-consuming hobbies

(photo of a happy married gay couple)
(orchestra crash, photo inverts)
(dissolve to a miserable married straight couple, who choke back sobs as they are forced to get really into Warhammer 40K)

...

Weren't those the best arguments they had, though? Could there possibly be a legal argument against marriage equality that could pass muster?

We had an interesting AskMe about this, from a person who needed to present an anti-SSM side for a gay marriage debate. Even the "best" arguments aren't very good at all, obviously, and they're not even really legal arguments.
posted by Sticherbeast at 6:44 AM on October 8, 2014 [1 favorite]

Weren't those the best arguments they had, though? Could there possibly be a legal argument against marriage equality that could pass muster?

Hope springs eternal. (For Scalia, that is.)
posted by Ben Trismegistus at 6:52 AM on October 8, 2014

Idaho is on hold.
posted by roomthreeseventeen at 6:56 AM on October 8, 2014

Charleston Probate judge announces he will grant marriage license to same sex couple.
posted by roomthreeseventeen at 7:04 AM on October 8, 2014 [2 favorites]

I'm sitting in my office in Charleston, SC trying to figure out how long it might be before my partner and I can get married (and have it actually mean something here). Can somebody break down the process/timeline for the law-challenged?

Apparently the answer was a little under 48 hours. I'm having an actual "I don't know what to do with my hands" moment. I've legitimately never seriously considered what my wedding might be like and now I have to actually think about it. So many weird emotions and new things to consider.
posted by This Guy at 8:53 AM on October 8, 2014 [11 favorites]

wait - why would scotus deny cert for the cases they did and then block marriages in another circuit? am i just not understanding the inside baseball?
posted by nadawi at 8:58 AM on October 8, 2014

I may have said this before, but you know what, I don't care about being petty given there's what, two circuits left?

SUCK IT, HATERS.
posted by feckless fecal fear mongering at 9:07 AM on October 8, 2014 [4 favorites]

nadawi, it looks like there may be a different legal argument to be presented than the arguments which SCOTUS refused to hear arguments on. Plus Idaho is asking to be heard by the entire 9th, not just the tribunal. Given Kennedy's track record on queer rights, I'm guessing this is something pro forma, just dotting the i's and crossing the t's before they get smacked down again.

Someone legal correct me if i have misunderstood please.
posted by feckless fecal fear mongering at 9:14 AM on October 8, 2014

wait - why would scotus deny cert for the cases they did and then block marriages in another circuit? am i just not understanding the inside baseball?

The lawyers for the Idaho case seek to challenge the ruling before an en banc Ninth Circuit, before finally sending it over to the Supreme Court. Notably, the biggest issue with the en banc review is that the anti-SSM lawyers claim, correctly, that the Ninth Circuit's latest ruling in that case "exacerbates a deep and mature circuit split on the general question whether discrimination on the basis of sexual orientation triggers some form of 'heightened scrutiny.'" It will be very interesting if the en banc review cements that circuit split.
posted by Sticherbeast at 9:23 AM on October 8, 2014

From the 9th Circuit opinion, the the two/three pages prior to Blue Jello Elf's fantastic footnote Link are excellent:

Unsupported legislative conclusions as to whether particular policies will have societal effects of the sort at issue in this case—determinations which often, as here, implicate constitutional rights—have not been afforded deference by the Court. To the contrary, we “retain an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to[legislatures’] factual findings in these cases is inappropriate.”

Marriage, the Coalition argues, is an “institution directed to certain great social tasks, with many of those involving a man and a woman united in the begetting, rearing, and education of children”; it is being “torn away,” they claim,“from its ancient social purposes and transformed into a government-endorsed elebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially for as long as those personal desires last.” Defendants struggle, however, to identify any means by which same-sex marriages will undermine these social purposes.

They argue vehemently that same-sex marriage will harm existing and especially future opposite-sex couples and their children because the message communicated by the social institution of marriage will be lost. As one of the Nevada plaintiffs’ experts testified, there is no empirical support for the idea that legalizing same-sex marriage would harm—or indeed, affect—opposite-sex marriages or relationships. That expert presented data from Massachusetts, a state which has permitted same-sex marriage since 2004, showing no decrease in marriage rates or increase in divorce rates in the past decade. See Amicus Brief of Massachusetts et al. 23–27; see also Amicus Brief of American Psychological Association et al. 8–13. It would seem that allowing couples who want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state’s endorsement, without reservation, of spousal and parental commitment. From which aspect of same-sex marriages, then, will opposite-sex couples intuit the destructive message defendants fear? Defendants offer only unpersuasive suggestions.

First, they argue that since same-sex families will not include both a father and a mother, a man who has a child with a woman will conclude that his involvement in that child’s life is not essential. They appear to contend that such a father will see a child being raised by two women and deduce that because the state has said it is unnecessary for that child—who has two parents—to have a father, it is also unnecessary for his child to have a father. This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand.

Defendants also propose another possible means by which endorsing same-sex marriage could discourage opposite-sex marriage, albeit less explicitly: opposite-sex couples who disapprove of same-sex marriage will opt less frequently or enthusiastically to participate in an institution that allows same-sex couples to participate. However, the fear that an established institution will be undermined due to private opposition to its inclusive shift is not a legitimate basis for retainingthe status quo. In United States v. Virginia, the Court explained:

The notion that admission of women would downgrade VMI’s stature,destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” see Mississippi Univ. for Women [v. Hogan],458 U.S. [718,] 730 [(1982)], once routinely used to deny rights or opportunities.. . .A like fear, according to a 1925 report, accounted for Columbia LawSchool’s resistance to women’s admission, although “[t]he faculty . . .never maintained that women could not master legal learning. . . . No, its argument has been . . . more practical. If women were admitted to the Columbia Law School, [the faculty] said, then the choicer, more manly and red-blooded graduates of our great universities would go to the Harvard Law School!” The Nation, Feb. 18, 1925, p. 173.

518 U.S. 515, 542–44 (1996); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)(“The Constitution cannot control such prejudices but neither can it tolerate them.Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”). The Sevcik district court thus erred in crediting the argument that “a meaningful percentage of heterosexual persons would cease tovalue the civil institution as highly as they previously had and hence enter it less frequently . . . because they no longer wish to be associated with the civil institution as redefined,” both because defendants failed to produce any support for that prediction, and because private disapproval is a categorically inadequate justification for public injustice. Sevcik, 911 F. Supp. 2d at 1016.Same-sex marriage, Governor Otter asserts, is part of a shift towards aconsent-based, personal relationship model of marriage, which is more adult-centric and less child-centric. The Latta district court was correct in concluding, however, that “marriage in Idaho is and has long been a designedly consent-based institution. . . . Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision” of conjugal marriage.
posted by marienbad at 9:27 AM on October 8, 2014 [2 favorites]

I have yet to see any of these bigots give a satisfactory answer to "Well then, what about post-menopausal women getting married?"
posted by feckless fecal fear mongering at 9:31 AM on October 8, 2014 [1 favorite]

"Well then, what about post-menopausal women getting married?"

Or men with a vasectomy, for that matter. I am one, albeit after fathering two children, and my inability to father children in the future diminishes my marriage not in the slightest.
posted by Gelatin at 10:00 AM on October 8, 2014 [1 favorite]

obligatory xkcd
posted by bradf at 10:35 AM on October 8, 2014 [4 favorites]

Nevada is back in the marriage equality column.
posted by roomthreeseventeen at 12:46 PM on October 8, 2014 [1 favorite]

Kansas
posted by roomthreeseventeen at 1:29 PM on October 8, 2014 [1 favorite]

Well, I hoped/implied Wilson would do the absolute minimum but he's done a bit more than that. Dammit. The SC Supreme Court will take up - and issue - a stay. Non-linked mobile link since I'm on my phone:

http://m.wistv.com/wistv/db/330790/content/GrUVfXSs
posted by ftm at 4:35 PM on October 8, 2014

That Kansas link wasn't working for me, but I think this is the document it was referring to.
posted by Blue Jello Elf at 4:51 PM on October 8, 2014

Nevada is back in the marriage equality column.

That was bizarre. Same-sex marriage in Nevada went from illegal to legal, back to illegal and then back to legal again. In the space of hours.
posted by ogooglebar at 8:12 PM on October 8, 2014 [1 favorite]

Sorry for the Yahoo link, but the reason being giving is that Idaho is asking for a stay, whereas Nevada did not. So Kennedy is giving that as the reason for Nevada being legal and Idaho being not.

To me (a layperson) that signals that Kennedy's stay in Idaho is a formality only? So good news?
posted by Twain Device at 4:41 AM on October 9, 2014

Yeah, the initial problem was that Kennedy included the docket number for the Nevada case as well on the stay. It was a clerical error.
posted by roomthreeseventeen at 5:07 AM on October 9, 2014

A stay is an interim step. Granting a stay does not mean that Kennedy opposes gay marriage, not at all. It's not a ruling on the merits. The stay itself is not necessarily good or bad, outside of the obvious and negative fact that gay couples in Idaho cannot get married for the time being.

The stay was granted so that the Ninth Circuit could do an en banc review of the Idaho ruling. The Idaho ruling was slightly different from the other gay marriage rulings, most notably because it apparently applies heightened scrutiny to discrimination based on sexual orientation, as opposed to rational basis scrutiny. This is not something the Ninth Circuit has done before. There will be en banc review, because the anti-SSM lawyers seek clarification on whether discrimination based on sexual orientation really does receive heightened scrutiny.

The question of heightened scrutiny is actually quite important and broader than the issue of same sex marriage itself. If the Ninth Circuit affirms that discrimination based on sexual orientation receives heightened scrutiny, then this deepens a mature circuit split on the issue. This would bolster and generate many more protections for non-straight people. This would also bring closer the day when the Supreme Court will have to weigh in on the issue.

However, the en banc review could just as well support same sex marriage in Idaho, while also rejecting the idea that discrimination based on sexual orientation receives heightened scrutiny. This would create the same good result for SSM in Idaho, but it would not expand gay rights beyond the current status quo.
posted by Sticherbeast at 5:23 AM on October 9, 2014 [1 favorite]

Guilford County Register of Deeds Jeff Thigpen says DHHS refuses to release gender-neutral forms to NC's 100 counties to prepare for ruling.
posted by roomthreeseventeen at 7:02 AM on October 9, 2014 [2 favorites]

CHARLESTON, W.Va. (October 09, 2014) - Gov. Earl Ray Tomblin today issued the following statement regarding same-sex marriage in West Virginia.

“As the attorney general stated today, recent rulings by several federal courts, combined with the refusal of the U.S. Supreme Court to hear this issue, make it clear that laws banning same-sex marriage have been declared unconstitutional. I do not plan to take any actions that would seek to overturn the courts’ decisions. West Virginia will uphold the law according to these rulings, and I have directed state agencies to take appropriate action to make that possible.

“Our state is known for its kindness and hospitality to residents and visitors alike. I encourage all West Virginians—regardless of their personal beliefs—to uphold our statewide tradition of treating one another with dignity and respect.”
posted by roomthreeseventeen at 10:36 AM on October 9, 2014 [8 favorites]

Sigh. Just once, North Carolina, can we make history by not dragging our feet and being stubborn? And can we not waste state resources when there's a budget crisis in higher education going on?

I love my state, I do. But she's making me awfully sad lately.
posted by joycehealy at 10:45 AM on October 9, 2014 [1 favorite]

And for reference, Guilford County went for Obama by 57.8%. Only 17 of the 100 counties had a greater margin for Obama. Guilford County doesn't fucking WANT DHHS's obstructionism.
posted by showbiz_liz at 10:59 AM on October 9, 2014

Oh, here's an article with a quote:

"Guilford County Registrar Jeff Thigpen has been on a flurry of calls with the state's other registers of deeds. He said all await revised paperwork from the state Department of Health and Human services and they say they feel unprepared.

"They feel they don't have the tools they need and it's going to create chaos," Thigpen said from his office Thursday.

The state registers of deeds were told at an association meeting earlier this year that the state has the actual paperwork updated, he said.

"They are sitting on it," Thigpen said. "Secretary (Aldona) Wos, we need that form."

At least two clergy are at Thigpen's office waiting to perfom free weddings."

And of course, this is happening. But it's too late, fuckers. TOO LATE.
posted by showbiz_liz at 11:03 AM on October 9, 2014 [1 favorite]

In SC, the state Supreme Court ordered probate judges there "not to issue marriage licenses to same-sex couples pending a decision by the federal District Court" in the Bradacs case pending before federal District Judge Judge Michelle Childs. Interestingly, two of the justices wanted the prohibition to last until there is a final judgment in Bradacs (that is, after all appeals are exhausted), but the majority of the court decided the prohibition should only last until Judge Childs makes her decision. (That's a nice touch because if/when she issues an injunction, the probate judges won't be faced with a conflicting order from their own Supreme Court.)
posted by Area Man at 11:47 AM on October 9, 2014

Same-sex marriages are officially a go in Kanawha County, WV.
posted by roomthreeseventeen at 12:02 PM on October 9, 2014 [1 favorite]

Man, this thread is like a rollercoaster, I never expected this when I clicked to come here.
posted by marienbad at 1:45 PM on October 9, 2014

ogooglebar: That was bizarre. Same-sex marriage in Nevada went from illegal to legal, back to illegal and then back to legal again. In the space of hours.

And then it cycled once more overnight (anti-gay marriage group asked for a hold, got it, then dropped the request.) But finally landed on yes.
posted by tavella at 2:27 PM on October 9, 2014

I can only describe as surreal the experience of driving cross-country this week to start a new job in SF. (I woke up Monday at a friend's house in Columbus [where my host and I learned the SC news after packing his two kids off to school] and now I'm sitting in a motel in Utah.) I've been catching snippets of the news wherever I get local public-radio signal and in the meditative state of the open highway it almost feels like Christmas lights twinkling on and off (mostly on, thankfully) all around me.
posted by psoas at 5:08 AM on October 10, 2014 [8 favorites]

"They are sitting on it," Thigpen said. "Secretary (Aldona) Wos, we need that form."

This is why you go to a court and demand a writ of mandamus, which, loosely translated, is a court order to a government official telling them to do their fucking job. You drop it when the law tell an official that they need to do X and they refuse to do X.

Thinking about it, though, it's probably a couple that wants to marry but cannot that would need to ask the court. A general rule is "you have to be harmed to ask for relief" and I'm not certain that Guilford Co's Registrar is being harmed by a lack of useful forms. Annoyed, sure, but not harmed.

Thinking about it more, even when it's justified, US Courts like to avoid dropping a writ of mandamus unless it's absolutely needed, esp. when they can fix the problem without doing so. So, I expect this judge would just inform the Country Registrars that they could strike out and write in whatever they needed to make the form work, and that would then be a legal record of marriage.

The court would *not* say "And fuck you, Aldona Wos. Fuck. You." even though they may want to and probably should.
posted by eriko at 8:59 AM on October 10, 2014 [3 favorites]

Same-Sex Marriage can move forward in Idaho. Justice Kennedy lifted his earlier stay. I suspect the stay was "Hmm, this is worth looking at in detail, let me issue a stay and do that…..okay, now that I have done it, nope, looks good from here. Marry on!"
posted by eriko at 3:21 PM on October 10, 2014 [1 favorite]

Stays: If there's a chance that real "harm" could be done, and a chance that a ruling could come out that would allow that, then the courts will generally issue a stay. In big issues, it's very common for the district courts themselves to rule and then stay their own rulings pending appeal.

I can see the harm in allowing same-sex weddings, and then banning them. So, a prudent court would stay the ruling until the appeal, and SCOTUS will often stay a ruling while they look at if they need to be part of the issue -- like the VA stay, which vacated when SCOTUS denied cert, but it gave VA a chance to file responses to SCOTUS queries. After they did that, they decided that there was no question they needed to answer and they denied cert, which cancelled the stay.

I think this was similar. The Idaho ruling used a different standard, and Kennedy (who was the normal judge for responding to stay requests from the 9th) decided to issue a stay and take a look at it. He may have discussed it with other justices. Whatever happened, he decided that the issue wasn't enough to warrant a stay any longer.
posted by eriko at 3:28 PM on October 10, 2014

North Carolina's ban on same-sex marriage has been struck down by a federal judge.
posted by Blue Jello Elf at 3:43 PM on October 10, 2014 [2 favorites]

From the North Carolina decision:

The issue before this court is neither a political issue nor a moral issue. It is a legal issue and it is clear as a matter of what is now settled law in the Fourth Circuit that North Carolina laws prohibiting same sex marriage, refusing to recognize same sex marriages originating elsewhere, and/or threating to penalize those who would solemnize such marriages, are unconstitutional.

posted by Blue Jello Elf at 3:45 PM on October 10, 2014 [1 favorite]

Scene: I'm visiting my wife for fall break. We're sitting around internetting and I load up Facebook and...

Me: Hot damn. Buncombe County and Wake County are issuing licenses.

Her: Oh, really? Awesome.

Me: Yes. Hey, wife? We're married where it matters now.

Her: Awesome.

Five minutes later...

Her: Wait. Does that mean we're MARRIED now?

What can I say - it's been a really long day. :)

http://www.newsobserver.com/2014/10/10/4222691/the-wait-for-gay-marriage-in-north.html?sp=/99/102/
posted by joycehealy at 3:46 PM on October 10, 2014 [5 favorites]

One more thing... I was loading up Wiki to see how they were keeping up with the news and saw "This article documents a current event. Information may change rapidly as the event progresses" which gave me the giggles. Poor Wiki editors.

And then I saw "Most Americans live in a jurisdiction where same-sex couples can legally marry."

I ... might be flailing a little bit now. Let's just hope that "most" is "all" very very soon.
posted by joycehealy at 3:52 PM on October 10, 2014 [2 favorites]

Yeah, Joe Jervis at Joe.My.God. has been posting each Wikipedia map as it updates. Last night, he posted:

When you get to post a new Wikipedia map twice in a few hours, that was a very good day for our people. When you get to post a new Wikipedia map eight times in four days, that was one of the best weeks in our history.

And he just got to post a ninth one!
posted by Blue Jello Elf at 3:55 PM on October 10, 2014 [3 favorites]

When you get to post a new Wikipedia map twice in a few hours, that was a very good day for our people.

s/our //;
posted by ROU_Xenophobe at 4:52 PM on October 10, 2014 [6 favorites]

My internet was off for three days and SO MANY MORE STATES are red on the map now.

It's fucking mindblowing. I remember when marriage equality was an unrealistic pipe dream.

P.S. For MeFites suddenly in need of wedding plans, might I suggest a destination wedding in Vermont with MeFi's own Justice of the Peace? :D
posted by Jacqueline at 5:19 PM on October 10, 2014 [2 favorites]

I don't live in NC anymore and I may or may not wind up needing gay marriage, but damn, seeing that shaded-in state on the Wikipedia map really hit me hard. This is the wonderfulest. Oh man. Finally, a political development in my home state where I wish I was there to celebrate it, not to fight it.
posted by showbiz_liz at 5:30 PM on October 10, 2014 [1 favorite]

Omg, the video of the two women in green shirts at this link from my hometown paper... that shorter woman's accent is making me MEGA homesick.
posted by showbiz_liz at 5:36 PM on October 10, 2014

it is so amazing and wonderful and heartrending to see all these states shaded, and knowing that even though there are seemingly legally married gay folks in my state, still we wait. i hope the waiting ends soon so i can just celebrate already.
posted by nadawi at 8:13 PM on October 10, 2014

Oh hey, I just realized: what with these major circuit decisions, that guy who was upset about people making new posts for every state must be pleased as punch!
posted by showbiz_liz at 10:35 AM on October 11, 2014 [8 favorites]

And as if this weren't enough, Alaska might flip on Monday. But Monday is also a federal holiday, so the courthouses would be closed until Tuesday.
posted by Asparagirl at 6:50 PM on October 11, 2014 [1 favorite]

Looks like Alaska flipped today. On a Sunday; on a holiday weekend.

I'm glad to see the map get filled in so rapidly this past week. This has been a long time coming. We're almost there.
posted by sockermom at 4:37 PM on October 12, 2014 [4 favorites]

Day One, NC from the perspective of a minister.
posted by roomthreeseventeen at 7:42 AM on October 13, 2014 [3 favorites]

The National Organization for Marriage is very worried that all of this will lead to people being able to marry...themselves! Some hilarious responses have been collected.
posted by rtha at 7:39 AM on October 14, 2014

It's actually a wonderful thing to have to say I can't keep up --- somebody check me on this: Alaska is what, number 35?
posted by easily confused at 9:40 AM on October 14, 2014

This wonderful picture has been making some rounds.
posted by EmpressCallipygos at 9:42 AM on October 14, 2014 [1 favorite]

The end of this piece at Think Progress reminds us of a scenario where a single death on the Supreme Court could wipe out all the gains we've seen so far:

Justice Ginsburg is 81. Justice Kennedy is 78. Justice Stephen Breyer, another consistent vote for gay rights, is 76.

If just one of them retires or dies when a conservative president is in the White House — or even if one of them leaves the Court at a time when the Senate is unwilling to confirm a left-of-center justice — then the Court is likely to lose its majority in support of gay rights. And if the Court has not handed down a definitive decision cementing marriage equality throughout the nation, it will be much easier for the Court’s new majority to justify bending the moral arc of the universe away from justice. The Court’s decision in United States v. Windsor, which struck down DOMA, was only a 5-4 decision. If the question of marriage equality reaches a more conservative Court several years into the future, Windsor could be overruled.
posted by mediareport at 5:54 AM on October 15, 2014 [1 favorite]

Arizona ban struck down!
posted by Blue Jello Elf at 9:08 AM on October 17, 2014 [3 favorites]

I should sleep all day more often because it seems every time I do another state gets legal marriage equality.
posted by Jacqueline at 2:02 AM on October 18, 2014 [4 favorites]

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