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Analysis of the Fifth Circuit Hearings

Sunday, January 11th, 2015

Fifth Circuit New OrleansThere are several great summaries out there about what happened yesterday at the Fifth Circuit, which heard marriage equality appeals from Texas, Louisiana, and Mississippi. Among others, I recommend the summaries from Chris Johnson at the Washington Blade and Chris Geidner at Buzzfeed. I would like to go one step deeper. I have listened to the audio from the oral argument (as you can too, here). As with other oral arguments, I find the most insightful indication of how a judge is leaning is not the number of questions asked or to which lawyer he asks more, but the language and tone of those questions. I found that especially true with Judge Higginbotham (pictured, right) on Friday.

When analyzing oral arguments, I always caution that any connection between a judge’s questions and his or her ultimate decision is purely speculative. There are court-watchers who do studies about these things. But my reports on marriage equality hearings at the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, not to mention at the Supreme Court, suggest that we can draw conclusions. On all the metrics, it looks like marriage equality will win the day at the Fifth Circuit.

First, I will discuss those metrics. Then I will discuss where we go from here.

Questions Asked To Lawyers. This metric is based on the notion that appellate court judges tend to ask more questions to the side of the argument they are inclined to oppose. That makes some sense: you ask questions because you are skeptical. As a related point, the side peppered with more questions presumably has the tougher case to make, which makes it more likely to lose. Sometimes, a judge will lob a helping hand at a beleaguered attorney, but you can bracket those and come up with a simple analysis.

Authored By Ari Ezra Waldman – See the Full Story at

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Supreme Court Marriage Equality Case Conference Analysis

Saturday, January 10th, 2015

US Supreme Court ColorAs you know, the justices of the Supreme Court met in private today to discuss, among many other things, whether to take any of the marriage equality cases out of the Sixth Circuit.

If you recall, the Sixth Circuit upheld bans on the freedom to marry, making it the only federal appellate court in the post-Windsor world to do so. The plaintiffs in the various cases on appeal — from Michigan, Ohio, Kentucky, and Tennessee — appealed and asked the Supreme Court to take their cases and reverse the appellate court. The justice considered those petitions in conference today. But we didn’t get an order granting or denying review. That’s ok.

1. The justices had a lot to discuss. In addition to the other petitions waiting on the docket, they not only had to decide whether to take a marriage equality case, they had to decide which case to take. There are several, each with unique nuances that may make them better for review. Normally, the Supreme Court wants the cleanest case: the most straightforward facts, no procedural hurdles, clear legal questions. There is strategy involved here, too.

And there’s more! The justices also had to decide how to craft the legal question they will review. In every petition for certiorari at the Court, the parties frame the legal question they say the Court must address. As any lawyer (or story teller) will tell you, how you frame the question is a big deal: it could tip the entire case in one direction. The justices have to decide whether to take the legal question as framed by a party or to change it to their liking or to take it and add questions they want answered. That kind of grant happens often.

Authored By Ari Ezra Waldman – See the Full Story at

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US Supreme Court’s Marriage Equality Non Decision: Analysis

Tuesday, October 7th, 2014

Gay Wedding

The newswires are thick with reports about and analysis of the Supreme Court’s action yesterday (or lack of action). Here are some of the analyses from the web.

Chris Johnson at The Washington Blade looks at the possible reasons the Justices might have had for passing on a case at this time:

Jon Davidson, legal director for Lambda Legal, during a conference call with reporters, pointed to wide consensus among the courts that bans on same-sex marriage are unconstitutional. “It’s total speculation, but my speculation would be they decided that there was unanimity among the federal courts of appeal, and virtual unanimity among all the federal courts and almost all the state courts,” Davidson said. “Since the Windsor decision, it is clear that same-sex couples have a constitutional right to marry. There was therefore no need for them to step in at the moment.” That would be consistent with well-publicized remarks that U.S. Associate Justice Ruth Bader Ginsburg made weeks ago at a Minnesota Law School in which she reportedly said there’s “no need for us to rush” to take up marriage unless the U.S. Sixth Circuit Court of Appeals issues a decision upholding bans on same-sex marriage, which would cause a split among the circuit courts.

NPR runs down a list of questions about the Court and marriage equality, including:

The justices are said to be looking for the “best vehicle” to serve as a test case. What would such a case look like — and is one in the legal pipeline? The court had plenty of good vehicles that it chose not to drive this time. There were seven cases to choose from, with good lawyers, clear facts and clean disagreements. But the court decided to keep its nose out of the controversy for now, and as long as the lower courts of appeal agree on the result in these cases, there is little pressure on the court to intervene. Moreover, many experts said Monday that by staying out of the issue, the court was sending a clear message to the lower courts that they were doing the right thing.

Buzzfeed’s Chris Geidner looks at Justice Kennedy’s end-game:

On Monday, the court decided not to take up seven cases involving bans on same-sex couples’ marriages. The decision advanced Kennedy’s two main interests in a significant way — and set the course for achieving marriage equality in 50 states. The court increased human dignity, as understood and detailed by Kennedy in a trio of gay-rights cases that began in 1996. As Kennedy most famously put it in the middle of those cases, the Constitution’s founders knew that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Those three cases struck down an anti-gay amendment in Colorado in Romer v. Evans, struck down sodomy laws in Lawrence v. Texas in 2003, and culminated — at least, for now — in the 2013 decision striking down part of the Defense of Marriage Act in United States v. Windsor.

Could the non-decision make marriage equality an election issue? Trudy Ring at the Advocate considers it:

Republicans, however, don’t seem to want to discuss the issue; the chance to vote for such ballot initiatives brought conservative voters to the polls 10 years ago, but now opposition to marriage rights is more a political liability than an advantage in many regions of the country. “This was something the party largely hoped to avoid talking about and that’s why they’ve been silent,” Republican strategist Ford O’Connell told The Hill. “Some of these Republicans in these purple states are finding themselves in a bind. In some cases it could put some Democrats on their heels but if you look at the totality of it, this is not a great situation for Republicans.”

Marth T. Moore at USA Today sees the ruling as having more of an impact on the 2016 elections:

Don’t expect political fallout from the Supreme Court’s action, or inaction, on same-sex marriage — at least not before next year when presidential campaigns get fully into gear. In this fall’s midterm elections, the issue isn’t likely to surge to prominence as a result of the court allowing to stand lower court rulings upholding gay marriage — even in the closely contested Senate and governor’s races in states immediately affected by court’s actions… Races are turning on local issues and the qualities of the candidates, said former Democratic National Committee spokesman Hari Sevugan. Same-sex marriage isn’t on the ballot, “nor is there a readily identifiable proxy on the ballot.” Impact on races from the Supreme Court action? “I don’t see it.”

Rachel Maddow takes a stab at the whole thing:

On her show last night, Rachel Maddow took a look at the path that led to yesterday’s decision (or lack thereof) and what may have motivated it. She wondered, since it only takes 4 votes for the Supreme Court to decide to hear a case, why didn’t the anti-gay marriage wing of the Court (Chief Justice Roberts and Justices Scalia, Alito and Thomas) want to take the opportunity to try and reverse some of the “damage” done by United States v. Windsor (a case in which all 4 justices dissented)? Could there be a Machiavellian motive at play?

There are still 20 states with bans on marriage equality. Brad Heath at USA Today looks at what’s next in those states.

The court’s decision leaves unchanged 20 state laws blocking same-sex unions. Each is already under legal attack, facing challenges in state or federal court, and sometimes both. Challenges to marriage bans already have reached a handful of state appeals courts and in the federal Fifth, Sixth, Ninth and Eleventh circuit appeals courts. Some of those judges had been waiting to see what the Supreme Court would do. The court’s instruction Monday was: Proceed.

Stephen Colbert played for laughs, welcoming his “government-mandated-life-partner”:

After hearing Jeffrey Toobin tell Wolf Blitzer that it’s “inevitable the rest of the country will follow” the states that have adopted gay marriage, Stephen Colbert thanked his wife Lorraine “for 25 good years” and welcomed his new husband and welcomed his new “government-mandated life partner Roger Cornsworth.” Still, Stephen is “pumped to the gavels” for the start of the Supreme Court session and takes a look at the rise in influence of “friend of the court”, or amicus briefs, which were cited by SCOTUS 124 times from 2008 to 2013.

There is still one way we could lose, in the long run. Paul Waldman speculates:

It involves a Republican winning the White House in 2016 and a liberal justice retiring, to be replaced by a conservative. This isn’t some remote possibility. We have no idea what the election of 2016 will be like, and while as a liberal you probably think that the current crop of Republican contenders are a bunch of bozos, people thought that about any number of people who ended up winning the White House (see Bush, George W.). As of now, Ruth Bader Ginsburg is 81, Stephen Breyer is 76, Sonia Sotomayor is 60, and Elena Kagan is 54. Any one of them could retire for any number of reasons. And once President Rand Paul appoints Ted Cruz to take that retiree’s place, things look very different.

But Andrew Sullivan at the Dish sees the mountaintop

But we see also in this remarkable, unlikely transformation the possibility of something much different: that human beings can put aside fear and embrace empathy, can abandon prejudice in favor of reality, can also see in themselves something they never saw before: an enlargement of the circle of human dignity… I cherish America, a place where this debate properly began, a place where the opposition was relentless and impassioned, a country which allowed a truly democratic debate over decades to change minds and hearts, where the Supreme Court guided, but never pre-empted, the kind of change that is all the more durable for having taken its time. Know hope.

Analysis of the Virginia Ruling (With Some Great Quotes)

Thursday, July 31st, 2014

Matt BaumeFriend of the blog and Marriage News Watch vlogger Matt Baum does his own analysis of the Virginia ruling:

The Fourth Circuit Court of Appeals has handed a tremendous victory to gay and lesbian couples today, with a strongly-worded ruling that Virginia’s marriage ban is unconstitutional.

The court cited numerous previous cases that establish the freedom to marry as a fundamental right, including Loving v. Virginia, which ended a ban on interracial marriage; Zablocki v. Redhail, which overturned a Wisconsin law prohibiting deadbeat parents from marrying; and Turner v. Safley, which ended a ban on convicts marrying.

The court wrote,

These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at

In addition, the court wrote that:

the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships.

Authored By Matt Baume – See the Full Story at

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Analysis of the Tenth Circuit Utah Marriage Equality Decision

Wednesday, July 2nd, 2014

Utah MapTo regular Towleroad readers, Judge Lucero’s opinion holding Utah’s ban on same-sex marriage unconstitutional reads like so many other equality rulings in the post-Windsor world. But the June 25th decision is still remarkable and unprecedented. Kitchen v. Herbert did not just say banning gays from marrying is unconstitutional. Rather, it said the law is unconstitutional specifically because of Windsor.

The opinion has all the trappings of many of the district court decisions that preceded it. First, the Court addressed the standing of the parties (the Governor and Attorney General of Utah) to appeal. I won’t spend any time on that section except to say, they do have standing. Second, the court dispatched the Baker v. Nelson canard. As courts have argued countless times in the last 4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.

But the way the Baker argument got resolved was new. Utah, which was represented in Court by my old boss at Winston & Strawn LLP, Gene Schaerr, argued that the very principles of federalism and the separation between the federal government’s role and the role of state governments that were reaffirmed in Windsor mandate that the Tenth Circuit hold to the Baker dismissal. In other words, Utah was acknowledging that the world has changed since 1971, a concession that the Prop 8 proponents and those supporting the Virginia gay marriage ban have refused to make. However, despite those cataclysmic changes, Utah argued that Windsor reminds us of the danger of the federal government intruding into the exclusive realms of the state. Therefore, since marriage is traditionally a state issue, the federal judiciary should stay out of a state’s decision to discriminate against gays in that exclusive state matter.

Authored By Ari Ezra Waldman – See the Full Story at

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USA, Virginia: Analysis of the Virginia Marriage Equality Case at The Fourth Circuit

Thursday, May 15th, 2014

VirginiaThe Virginia Marriage Equality case was heard by the Fourth circuit on Tuesday.

Ari Ezra Waldman provides an analysis at

Yesterday, a sharply divided three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia heard oral argument in the case of Bostic v. Schaefer (formerly, Bostic v. Rainey), an appeal of a lower court decision overturning Virginia’s restrictive ban on same-sex marriage. The argument was heated, with two judges staking out positions on opposite sides of the ban and a third judge remaining more circumspect, but still indicating his skepticism of the ban.

This morning, I reviewed the audio of the oral argument. I was struck by a few things:

NiemeyerFirst, Judge Paul Niemeyer (right), the most conservative judge on the panel, sounded more rabidly anti-gay or homophobic than a rational opponent of recognition same-sex marriages. The arguments he put forth were outdated and disrespectful.

Second, the other two judges on the panel — Judges Roger Gregory and Henry Floyd — appeared much more willing to affirm the lower court’s decision striking down the marriage ban. Their questioning suggested that they were persuaded that the Supreme Court’s gay rights cases (Romer v. Evans, Lawrence v. Texas, and, of course, United States v. Windsor) almost required them to strike down the ban.

Find more articles and gay wedding resources in Virginia.

USA, Arkansas: Plaintiffs File Brief; Weddings Continue

Tuesday, May 13th, 2014


The plaintiffs in Arkansas’s marriage equality lawsuit filed their brief aiming to block a stay with the state Supreme Court. reports:

Earlier today, the plaintiffs in the Arkansas case overturning the state’s ban on same-sex marriage filed a motion asking the Arkansas Supreme Court to deny separate requests filed by a group of county clerks and by the Attorney General for a stay on the ruling, The Arkansas Times reports: The motion cites the [county clerk] appellants’ contention that Piazza’s order created a “lack of clarity as to the current state of the law” and says the stay “should be denied and dismissed because County Clerk Appellants have failed to allege facts or law establishing” their entitlement for the stay.

Why are many county clerks dragging their feet and declining to give licenses to same sex couples?

Think Progress has some answers.

There are a number of reasons why Friday’s decision has created confusion for the clerks. Jason Owens, one of the lawyers who represented the six counties named in the marriage suit, told the Arkansas times that there are various statutes written into the law that weren’t mentioned in Friday’s decision that continue to limit marriage to a man and a woman. Owens acknowledged that Circuit Judge Chris Piazza clearly intended to address the matter completely, but the loose ends in the law leave questions for how county clerks should handle the situation.

Perkins also pointed out to ThinkProgress that Piazza’s decision, despite overturning the ban on same-sex marriage, did not include an injunction ordering counties not to enforce it. Thus, the six county clerks named in the suit were left “unclear if they were being instructed to issue same-sex licenses.” Moreover, Arkansas’ other 69 counties were left similarly in doubt as to whether the decision applies statewide.

One additional concern is that many of the clerks use software that has gender-specific language on the marriage forms, such as “bride,” “groom,” “Mr.,” and “Mrs.” If a same-sex couple were to be issued a license using such a form, it could potentially compromise the legal validity of that license.

Who is still issuing licenses?

Until Tuesday, four counties — Saline, Marion, Pulaski, and Washington — were issuing licenses, but Saline and Marion have both stopped as well, explaining that they want to wait until a ruling is issued by the courts.

Governor Beebe wants the Supremes to decide on the validity of the marriages created thus far.

LGBTQ Nation reports:

Arkansas Gov. Mike Beebe says it’ll be up to the state’s high court to decide whether hundreds of marriage licenses issued to same-sex couples are valid while the state defends its gay marriage ban. Beebe told reporters Tuesday that the Supreme Court will ultimately have to decide whether the state should recognize the roughly 300 marriage licenses that have been issued since a Pulaski County judge struck down the state’s gay marriage ban.

And ABC News looks at the history in the state.

Fifty-seven years after federal troops escorted nine black students into Little Rock’s Central High School as a white mob jeered, Arkansas again finds itself in the center of a debate over civil rights. This time, the issue is gay marriage, but the 1957 desegregation crisis still casts a shadow… Gay rights supporters regularly invoke the 1957 desegregation battle, warning opponents that history may not look kindly on them. At the same time, those concerns may not resonate throughout Arkansas, where recent polling still shows heavy opposition to gay marriage.

When will we hear from the Supremes? And will they let the weddings continue? Fingers crossed…

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USA, Arkansas: Supreme Court Asks for Response Today

Tuesday, May 13th, 2014
arkansas gay marriage, marriage equality, same sex marriage,

Red = No, Green – Yes

Arkansas AG Dustin McDaniel asked the state Supreme Court to stay the marriage equality decision there. The response? reports:

The Arkansas Supreme Court has responded to Attorney General Dustin McDaniel’s request for a stay of Judge Chris Piazza’s ruling overturning the state’s ban on gay marriage by giving plaintiffs until noon tomorrow to respond. The Arkansas Times paper adds that it’s unclear how quickly the Supreme Court will rule. It normally issues opinions on Thursdays, but in extraordinary cases sometimes issues them immediately.

Will there be a stay?

Think Progress chimes in:

The Arkansas decision is a bit different from the many other post-Windsor decisions over the past year because it was decided by a state judge. That means it has implications only for the state of Arkansas, and the Arkansas Supreme Court is not necessarily bound to stay the decision as the federal courts have been since the U.S. Supreme Court stayed Utah’s decision. Thus, the Arkansas Supreme Court could act the same way the New Jersey Supreme Court did, allowing marriages to proceed as the case’s appeals are heard, a decision that actually prompted New Jersey to withdraw its appeal.

Four state counties are banning together to ask for a stay:

The Conway, Lonoke, Washington and White county clerks asked the state Supreme Court Monday to stay Pulaski County Circuit Judge Chris Piazza’s ruling that the 2004 constitutional amendment and 1997 law banning same-sex marriage are unconstitutional. Attorney General Dustin McDaniel earlier Monday asked the court to stay Piazza’s ruling. The counties argue that Piazza’s ruling didn’t address another state law banning issuing marriage licenses to same-sex couples.

Meanwhile, we have more on the reason Eureka Springs / Carroll County stopped issuing marriage licenses.

Queerty reports:

The reason: Some bizarre, slightly confusing, far-fetched technicality that probably won’t last very long. “This office was notified this morning by Mike Rainwater that there was a law left on the books prohibiting a county clerk from issuing a marriage license to persons of the same gender,” the office of Carroll Country Prosecuting Attorney, Tony Rogers, said in a press release. “This law was not addressed by Judge Piazza, and because of this, we advised the county clerk to stop selling marriage licenses to person of the same gender.” In other words: Same-sex couples can get married, but it’s illegal for clerks in Carroll Country to actually issue marriage licenses to them.

And Ari Ezra Waldman has a great analysis of the decision:

Late Friday, Judge Chris Piazza (right), a state court judge in Arkansas, declared his state’s ban on same-sex marriage unconstitutional and ordered the county clerk’s office to issue marriage licenses to gay couples. It was the first post-Windsor marriage equality decision based on federal and state grounds. And because he did not stay his order, gay couples could almost immediately get married (and have!). The Arkansas attorney general has filed a motion for a stay and only a select few counties are following the judge’s order.

You may be asking yourself a few questions: How did this all come about? Why a state court case, especially since most of our post-Windsor success (save New Jersey and New Mexico) has come through the federal courts? Why are certain county clerks defying the judge and not issuing marriage licenses? What happens now?

Another side note: the Arkansas Health Department is now allowing same sex parents to be listed on birth certificates.

LGBTQ Nation reports:

The Arkansas Department of Health is allowing same-sex couples to be listed as the parents on birth certificates after a judge struck down the state’s gay marriage ban. Health department spokeswoman Kerry Krell said Monday that two gay couples have already sought to both be listed as parents on birth certificates issued by the state.

It’s gonna take more than a court order to stuff this genie back into the bottle.

Find more articles and gay wedding resources in Arkansas.

USA, Utah: Analysis of the Marriage Equality Hearing Today

Thursday, April 10th, 2014

Tenth Circuit, Denver

Apple Maps

By this time, if you are reading this particular website, you know the basic facts. But, it is worth restating here. The first time Utah specifically forbid same sex unions was by Legislative action in 1977. In 2004, during the height of the Bush Administration’s effort to politicize marriage equality and the proposed federal Constitutional Amendment, the Legislature tacked on two more bills. The first was to add Section 30-1-4.1 to the Utah lawbooks. It is one of your more broad gay marriage bans. It doesn’t ban personal contracts like some of the more extreme measures, but it did specifically bar civil unions or any law that would grant any marriage like benefits.

The other measure they passed was a resolution to put what became Amendment 3 on the Nov. 2, 2004 ballot. You would think the law would be enough, but Karl Rove and team were pushing marriage amendments to be placed on the ballot to boost turnout, and so the Utah Legislature complied. It passed with 65.9% of the vote, and went into force as Article I, Sec 29 in January 2005. (A side note: read the first few paragraphs of that Rove link if you want to remind yourself just how far we have come in ten years.)

So that brings us to this case. The plaintiffs are a gay male couple and two lesbian couples who have lived in Utah for a long time. (See their photo on Restore Our Humanity’s Facebook page.) Utah is their home, and they have built their families there. They have no interest in moving, and why should they?

Authored By Brian Leubitz – See the Full Story at Equality on Trial

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USA, Michigan: Analysis of the Marriage Equality Ruling

Sunday, March 23rd, 2014

District Judge Bernard FriedmanAri Ezra Waldman does his usual excellent job breaking down the Michigan marriage equality ruling from Friday. reports:

The state tried to argue the standard, yet hopeless case–namely, that the ban promotes the “optimal child-rearing environment,” allows the state to “proceed with caution” in an area of great social change, and expresses the collective “tradition and morality” of the citizens of the state. In response, the court said two things in response: First, that some of these reasons are not even legitimate state goals, and, second, even if they all are, banning gays from marrying is so unrelated to these ostensible goals that the ban makes no sense. We’ve heard these arguments before. And we’ve seen then struck down before, in states as different as Massachusetts (back in 2004) and in Utah ten years later.

Waldman concludes:

First, if we recall back to the Prop 8 trial that culminated in Judge Walker’s decision, the first of its kind in the nation, the benefits of a trial were clear. Forcing our antigay opponents to go on record, to swear under oath, and to sit for cross-examination stripped them of the ability to lie and mislead that a political campaign grants them. It brought sunshine to the shadowy realm of antigay bigotry. And, perhaps more importantly, it laid bare for the American public that an impartial quest for truth revealed the utter irrationality of preventing gays from marrying.

Meanwhile, Attorney General Bill Schuette defended his appeal in the case.

On Top Magazine reports:

In defending his decision to defend in court Michigan’s ban on gay marriage, Michigan Attorney General Bill Schuette declared he’s not “one of these Eric Holder attorneys general.” Schuette made his remarks while speaking to the Saginaw County Republicans at the group’s annual Lincoln Day Breakfast on Saturday, one day after U.S. District Judge Bernard Friedman struck down Michigan’s ban as unconstitutional, prompting a rush to the altar of hundreds of gay couples before a federal appeals court temporarily blocked Friedman’s order.

What happens next? We’ll see on Wednesday.

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