Marriage Equality Developments through December 23, 2014 – Updated Chronology

A while back I posted a chronology of significant developments in the legal campaign for marriage equality since the U.S. Supreme Court’s June 2013 ruling in U.S. v. Windsor.

Here is a new chronology, showing significant developments since the Supreme Court denied petitions for certiorari on October 6 in appeals from marriage equality rulings by the 4th, 7th and 10th Circuit Courts of Appeals.

Oct. 6 – U.S. Supreme Court denies certiorari in marriage equality cases from Utah & Oklahoma (10th Circuit), Virginia (4th Circuit), Wisconsin & Indiana (7th Circuit).  All stays lifted in those states, increasing marriage equality states from 19 to 24.  No publicly registered dissents from denials of cert.

Oct. 7 – Colorado Supreme Court (in 10th Circuit) lifts stay of state court’s marriage equality decision at request of Attorney General John Suthers, ruling goes into effect, #25.

Oct. 7 – 9th Circuit strikes marriage bans in Nevada and Idaho – stays denied by end of week, including by U.S. Supreme Court, #26 & #27.  Coalition to Protect Marriage in Nevada and state of Idaho subsequently filed petitions for en banc review, which are still pending at the end of the month, but the 9th Circuit panel ruling is not stayed.  Judge Stephen Reinhardt for the panel: sexual orientation discrimination applying heightened scrutiny; Concur by Reinhardt on due process grounds; Concur by Marsha Berzon on sex discrimination grounds.

Oct. 7 – Kansas (10th Cir.) – Chief Administrative Judge Robert Fairchild, Douglas County (7th Judicial District), directs district clerk to issue marriage licenses.  A.G. Derek Schmidt rushes to state Supreme Court for an order halting licenses.

Oct. 7 – W. Va. (4th Circuit) —  District Judge  Robert Chambers lifts stay of proceedings in pending Lambda Legal case, leading Attorney General and Governor to concede that ban is unconstitutional on Oct. 9 and licenses started issuing on Oct. 10. #28

Oct. 8 – South Carolina  (4th Circuit) – District Judge J. Michelle Childs lifts stay on proceedings and sets things in motion for consideration of s.j. motions, which may be decided in November.

Oct. 9 – South Carolina Supreme Court (4th Circuit) – orders a local magistrate to stop issuing licenses while pending federal marriage cases in South Carolina are being decided

Oct. 10 – Kansas Supreme Court halts issuance of licenses temporarily upon application of attorney general, state ex rel. Schmidt v. Moriarity, schedules oral argument for November 6, while indicating likelihood of ruling for respondent clerk, who wants to issue licenses.

Oct. 10 – North Carolina (4th Cir.) – District Judge  Max O. Cogburn, Jr., on his own motion grants s.j. to plaintiffs in General Synod of UCC case. Attorney General Roy Cooper, who had previously announced that after the 4th Circuit’s ruling he would not defend state ban, announced statewide effect of Cogburn’s decision, making N.C. #29.

Oct. 10 – 9th Circuit announces that Hawaii’s enactment of a marriage equality law in 2013 had mooted the pending appeal of a 2012 adverse district court decision, and ordered the decision vacated and the appeal dismissed.

Oct. 12 – Alaska (9th Cir.) – Dist. Judge Timothy M. Burgess grants a surprise Sunday s.j. to plaintiffs, temporarily stayed by 9th Circuit while state unsuccessfully sought stay from Supreme Court.

Oct. 14 – N.C. (4th Cir.) – Dist. Judge William L. Osteen, Jr. in marriage equality case grants s.j. to plaintiffs and allows state legislative leaders to intervene if they want to appeal.  Legislative leaders would presumably seek en banc review in the 4th Circuit, since any 3-judge panel would be bound by prior ruling.

Oct. 15 – Lambda Legal files new case in South Carolina, moves for s.j. on Oct. 22.

Oct. 16 – Arizona (9th Cir.) – District Judge John W. Sedwick grants s.j. to plaintiffs in two pending marriage cases; Attorney General Tom Horne announces that appeal to 9th Circuit would be futile and so state complies, #30.

Oct. 17 – Supreme Court denies stay in Alaska case (9th Circuit), so ruling goes into effect, but state files an appeal, #31.

Oct. 17 – Wyoming – (10th Cir.) — District Court Scott Skavdahl grants s.j. to plaintiffs, stayed until Oct. 23 or until state certifies it won’t appeal.

Oct. 17 – Attorney General Holder announces federal govt will recognize same sex marriages in Utah, Oklahoma, Colorado, Virginia, Indiana, Wisconsin, and Nevada.

Oct. 17 – South Dakota – US District Judge Karen Schreier heard oral argument on s.j. motion in pending marriage case, stating that a written opinion would be issued “soon,”  but it hadn’t appeared by the end of the month.

Oct. 21 – Wyoming (10th Cir.) certifies it will not appeal and stay is lifted, #32

Oct. 21 – Puerto Rico (1st Circuit) – Dist. Judge Juan M. Perez-Gimenez dismisses marriage equality case, claiming to be bound by Baker v. Nelson, whose continuing viability as precedent had been asserted by 1st Circuit in its 2012 DOMA opinion.  Lambda Legal announced appeal to 1st Circuit.

Oct. 22 – Lambda Legal sues Social Security Administration in federal court in D.C. for refusing to recognize legal same-sex marriages in non-equality states for purposes of spousal death and survivor benefits.

Oct. 22 – Mississippi (5th Cir.) – Oct. 22 – US Dist. Judge Carlton W. Reeves heard first arguments in new marriage equality case, scheduling hearing on s.j. motion for Nov. 12.

Oct. 25 – Attorney General Holder announces federal government will recognize same-sex marriages in Alaska, Arizona, Idaho, North Carolina, West Virginia, and Wyoming.

Oct. 27 – 5th Circuit announces combined oral arguments on Texas and Louisiana marriage equality cases will take place during the first week of January 2015.

Nov. 4 – Kansas (10th Cir.) – U.S. District Judge Daniel Crabtree in Kansas City, Kansas, ruled in Marie v. Moser that Kansas’ ban on same-sex marriage violates the 14th Amendment, staying his decision until November 11 to give the state a chance to seek a stay from the 10th Circuit or the Supreme Court pending appeal.  The Kansas Supreme Court put off its hearing in Schmidt v. Moriarty, leaving a stay in place while the federal case is appealed to the 10th Circuit and/or the Supreme Court.

Nov. 5 – Missouri (8th Cir.) – City of St. Louis, Missouri, Circuit Judge Rex M. Burlison ruled State of Missouri v. Florida that Missouri’s ban on same-sex marriage violates the 14th Amendment and refused to stay his decision.  Attorney General Chris Koster announced that the state would appeal, but that he would not seek a stay. The decision directly affected only St. Louis, whose recorder of deeds was the defendant in case brought by the state to stop her from issuing licenses.

Nov. 5 – Florida (11th Cir.) – U.S. District Judge Robert Hinkle ruled that the stay of his ruling on the Florida marriage ban, Brenner v. Scott, would remain in effect until January 5 to give the state a chance to appeal to the 5th Circuit and seek a stay pending decision from that court.

Nov. 6 – The U.S. Court of Appeals for the 6th Circuit ruled 2-1 in DeBoer v. Snyder that the same-sex marriage bans and/or denials of recognition of same-sex marriages in Ohio, Michigan, Tennessee and Kentucky were constitutional, reversing rulings by six federal district courts.  Majority opinion by Judge Jeffrey Sutton said that Baker v. Nelson remains controlling, but then in dicta stated that the states had a rational basis for not extending the right to marry to same-sex couples.  A dissent by Judge Martha Daughtrey argued that the court should follow the rulings by the 4th, 7th and 10th Circuits that had been denied review by the Supreme Court a month earlier.  Counsel for the plaintiffs in the six cases conferred on Nov. 7 and agree not to file motions for rehearing en banc, instead seeking Supreme Court review.

Nov. 7 – W. Virginia (4th Cir.) – U.S. District Judge Robert C. Chambers ruled in McGee v. Cole that West Virginia’s ban on same-sex marriage violated the 14th Amendment, finding the decision dictated by the 4th Circuit’s ruling in the Virginia marriage case.  Because the state had already begun issuing marriage licenses shortly after the Supreme Court denied review of the Virginia case on Oct. 6, this ruling was mainly a formality.

Nov. 7 – 10th Circuit denied state’s petition for a stay in Marie v. Moser, Kansas marriage equality case.

Nov. 7 – Missouri (8th Cir.) – U.S. District Judge Ortrie Smith ruled in Lawson v. Kelly that Missouri’s ban on same-sex marriage violated the Due Process and Equal Protection clauses, and that the 8th Circuit’s 2006 ruling rejecting a challenge to the Nebraska marriage amendment, Citizens for Equal Protection v. Bruning, was not precedential on the 14th Amendment questions presented today, because the plaintiffs in that case brought their challenge on a different theory and were not asking the court in that case to declare a right of same-sex couples to marry.  Judge Smith’s order was directed only to the Jackson County Recorder.  Missouri became marriage equality state #33, at least in part, as licenses were available in at least two counties as a result of this week’s state and federal decisions. The state did not request a stay.

Nov. 12 – Supreme Court denied motion for a stay in Marie v. Moser, Kansas marriage equality case.  Controversy ensued about the scope of the district court’s order as state noticed appeal on the merits to the 10th Circuit.

Nov. 12 – S. Carolina (4th Cir.) –  U.S. District Judge Richard Mark Gergel ruled in Condon v. Haley that South Carolina’s ban on same-sex marriage violates the 14th Amendment, but stayed his decision until Nov. 20 to give the state an opportunity to seek a stay from the 4th Circuit or the Supreme Court.  Neither the 4th Circuit nor the Supreme Court would grant the state’s request for a stay, so the decision went into effect a few days later, although the state filed an appeal with the 4th Circuit on November 13.  This completed the sweep of the 4th Circuit for marriage equality.

Nov. 12 – The Supreme Court denied Kansas’s emergency application for a stay of the district court’s marriage equality decision, allowing the decision to go into effect as of 5 pm, making Kansas the 33rd marriage equality state.

Nov. 14 – S. Dakota (8th Cir.) – U.S. District Judge Karen E. Schreier denied the state’s motion to dismiss Rosenbrahn v. Daugaard, finding that plaintiffs’ challenge to South Dakota’s ban of same-sex marriage was not precluded by Baker v. Nelson or Citizens for Equal Protection v. Bruning, and otherwise stated a valid claim under the 14th Amendment.  The state will be obligated to file a response to the plaintiffs’ pending motion for summary judgment by November 24.

Nov. 14 – Petition for Certiorari filed in Supreme Court by plaintiffs in Henry v. Hodges & Obergefell v.Hodges, Ohio marriage equality cases, seeking review of 6th Circuit’s decision in DeBoer v. Snyder.

Nov. 14 – Petition for Certiorari filed in Supreme Court by plaintiffs in Tanco v. Haslam, Tennessee marriage equality case, seeking review of 6th Circuit’s decision in DeBoer v. Snyder.

Nov. 17 – Petition for Certiorari filed in Supreme Court by plaintiffs in DeBoer v. Snyder, seeking review of 6th Circuit’s decision.

Nov. 17 – Petition for Certiorari filed in Supreme Court by plaintiffs in Love v. Beshear, seeking review of 6th Circuit’s decision in DeBoer v. Snyder.

Nov. 18 – S. Carolina (4th Cir.) – U.S. District Judge Michelle Childs ruled in Bradacs v. Haley that South Carolina’s refusal to recognize the plaintiffs’ out-of-state same-sex marriage violated the 14th Amendment.

Nov. 18 – 9th Circuit denied Alaska’s request to take its appeal of Hamby v. Parnell directly to an en banc panel and set a briefing schedule that will put off oral argument of the appeal until February at the earliest.

Nov. 19 – Montana (9th Cir.) – U.S. District Judge Brian Morris ruled in Rolando v. Fox that Montana’s ban on same-sex marriage was unconstitutional, providing that his injunction would take effect immediately.  The state did not seek a stay from the 9th Circuit, but noticed its appeal on the same date. Montana completed the sweep of the 9th Circuit for marriage equality.

Nov. 20 – Louisiana (5th Cir.) – Lambda Legal files certiorari petition in Supreme Court in Robicheaux v. George, asking the Court to bypass the 5th Circuit and reverse the district court’s adverse marriage equality decision in Louisiana.

Nov. 24 – Utah (9th Cir.) – U.S. District Judge Dale Kimball made permanent his injunction in Evans v. State of Utah requiring the state to recognize marriages contracted prior to the U.S. Supreme Court’s January 6, 2014, stay in Kitchen v. Herbert.

Nov. 25 – Arkansas (8th Cir.) – U.S. District Judge Kristine G. Baker ruled in Jernigan v. Crane that Arkansas’s ban on same-sex marriage was unconstitutional, but stayed her ruling pending the state’s anticipated appeal to the 8th Circuit.

Nov. 25 – Mississippi (5th Cir.) – U.S. District Judge Carlton W. Reeves ruled in Campaign for Southern Equality v. Bryant that Mississippi’s ban on same-sex marriage was unconstitutional, granting the state a two-week stay to appeal to and obtain a stay from the 5th Circuit Court of Appeals.

Nov. 26 – Kansas (10th Cir.) – ACLU of Kansas filed an amended complaint in Marie v. Moser, adding several state-wide department heads seeking to broaden district court’s order to make marriage equality available throughout the state.  Although Kansas is in the 10th Circuit and thus its federal courts bound by that circuit’s affirmative marriage equality rulings in cases from Utah and Oklahoma, the district court had limited its affirmative relief to the county clerks sued by the plaintiffs, and the state has resisted applying the ruling statewide while it seeks to appeal to the 10th Circuit.

Nov. 26 – Missouri (8th Cir.) – U.S. District Judge Smith in Missouri refused to lift the stay of his decision in Lawson v. Kelly, noting the pendency of the state’s appeal to the 8th Circuit, which had not yet ruled in a marriage equality case.

Dec. 2 – Louisiana officials respond to petition for certiorari before judgment in Robicheaux v. George by telling the Supreme Court that they believe the district court’s ruling against marriage equality was correct but that the petitioners “are right that the extraordinary mechanism of cert-before-judgment is appropriate here,” contending that the Louisiana ruling would provide the best vehicle for the Supreme Court to consider the marriage equality issue.

Dec. 2 – 10th Circuit denies a motion by Kansas defendants for direct en banc review of the district court’s marriage equality ruling in Marie v. Moser.  The state had argued that because a three-judge panel would be bound by the Circuit’s prior rulings on marriage equality, it made no sense to have their appeal heard by the usual three-judge panel.

Dec. 3 – 11th Circuit denies a motion by Florida to stay the district court’s injunction in Brenner v. Armstrong pending a decision of Florida’s appeal, announcing that the injunction would go into effect at the end of the day on January 5, 2015.

Dec. 4 – 5th Circuit grants Mississippi’s motion for a stay in Campaign for Southern Equality v. Bryant, pending appeal to the 5th Circuit, and also grants appellee’s motion to expedite appeal by assigning the case to the same panel that is hearing the Texas and Louisiana appeals on January 9, 2015, but denied their motion to consolidate the Mississippi case with the other two for purposes of disposition.

Dec. 8 – Florida (11th Cir.) – Broward County Circuit Court – Brassner v. Lade – Judge Dale Cohen ruled for the second time that Florida must recognize a same-sex marriage performed out-of-state for purposes of a divorce proceeding.  Cohen had rescinded his earlier ruling when the Attorney General argued that it had not been properly notified that the state’s marriage ban was being challenged in the case and afforded an opportunity to intervene.  Cohen subsequently granted the requested divorce.

Dec. 8 – Kentucky Governor Steve Beshear files a brief supporting plaintiff’s petition for certiorari in DeBoer v. Snyder, arguing that the case presents a question of “exceptional importance” and pointing out that trial courts in 44 states have now ruled that bans on same-sex marriage are unconstitutional.

Dec. 9 – Missouri (8th Cir.) – Jackson County Circuit Judge J. Dale Youngs rejected a motion by state legislative rulers seeking a stay of his earlier ruling requiring the state to recognize same-sex marriage performed in other jurisdictions.

Dec. 10 – Plaintiffs’ counsel in marriage equality cases pending before the 8th Circuit from Missouri, Lawson v. State of Missouri and Lawson v. Kelly, ask the 8th Circuit to lift the federal district court’s stay, noting that same-sex couples are obtaining marriage licenses in some counties due to state court rulings and that the U.S. Supreme Court has not stayed any marriage equality rulings since Oct. 6, when it denied cert petitions in marriage equality cases from three other circuits.

Dec. 12 – Arguing that “the present status quo is unsustainable,” Ohio responds to petitions for certiorari by plaintiffs in the Ohio marriage recognition case by notifying the Supreme Court that it agrees that the petition for certiorari should be granted in DeBoer v. Snyder.

Dec. 15 – Florida Attorney General Pam Bondi applies to the Supreme Court for an extension of the district court’s temporary stay in Brenner v. Scott, which expires at 5 pm on January 5.

Dec. 15 – Tennessee files an opposition to the grant of certiorari in Tanco v. Haslam, one of the cases that was consolidated with DeBoer v. Snyder in the 6th Circuit, arguing that the Supreme Court need not review the 6th Circuit’s ruling despite the split with other circuits.

Dec. 15 – Idaho (9th Cir.) – Governor Butch Otter files an “amicus brief” in response to the pending petitions for certiorari that seek review of DeBoer v. Snyder, asking the Court to refrain from making a decision on certiorari until Idaho has filed its petition for review of the 9th Circuit’s ruling in Latta v. Otter, which it will do if the 9th Circuit denies his petition for en banc reconsideration of that case.

Dec. 15 – The 4th Circuit Court of Appeals consolidates appeals by the attorneys general of North and South Carolina from district court marriage equality rulings in Bleckley v. Wilson and Bradacs v. Wilson, and puts both cases “in abeyance” pending a ruling by the Supreme Court on the petitions for certiorari seeking review of the 6th Circuit’s decision in DeBoer v. Snyder.

Dec. 18 – Kansas (10th Cir.) – U.S. District Judge Daniel Crabtree denies a renewed motion to intervene in the pending Kansas marriage equality case, Marie v. Moser, by the Westboro Baptist Church.  Judge Crabtree reiterated his conclusion that the defendants and the prospective intervenor “share an ultimate objective” and thus intervention is not necessary to defend Westboro’s interests.

Dec. 19 – U.S. Supreme Court denies motion by Florida Attorney General Pam Bondi to extend the stay issued by U.S. District Judge Robert Hinkle in Brenner v. Scott past 5 pm on January 5.  Thus, as of that date and time, marriage licenses should become available to same-sex couples in Florida.  This is the first time that the Supreme Court has refused to stay a marriage equality ruling by a district court within a circuit that has not yet ruled on marriage equality.

Dec. 19 –  Idaho (9th Cir.)  – U.S. Magistrate Judge Candy W. Dale awards plaintiffs $397,300.00 in attorney fees and $4,363.08 in expenses against defendants in the Idaho marriage equality case, Latta v. Otter, awarding less than had been requested by plaintiffs but substantially more than Governor Butch Otter had conceded would be appropriate.  Otter has filed a motion for en banc review by the 9th Circuit of the magistrate’s order, and has asked the Supreme Court to wait for Idaho’s potential petition for certiorari before deciding whether the grant cert in DeBoer v. Snyder.

Dec. 20 – Advising the 8th Circuit of the Supreme Court’s denial of a stay in the Florida marriage equality case, counsel for plaintiffs in the Missouri cases argues in a letter to te court that “a stay of final judgment in this case, where no stay has been requested [by the state], is inappropriate.”  The federal district court had stayed its ruling on its own motion pending appeal.

January 9 – Petitions for certiorari seeking review of the 6th Circuit’s decision in DeBoer v. Snyder and the Louisiana district court decision in Robicheaux v. George are scheduled for consideration by the Supreme Court during its first cert conference of 2015.  Oral arguments scheduled this day in the 5th Circuit in the pending cases from Texas, Louisiana and Mississippi.








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