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Wednesday, August 26, 2015

Do not go gentle into that Nebraska night

Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.

I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here  that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.

One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.

Posted by Howard Wasserman on August 26, 2015 at 06:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


The fact that you have been you from the moment of your conception, and I have been me from the moment of mine, is a matter of fact, not opinion. Every son or daughter of a human person can only be a human person, as speciation occurs at the moment of conception. Conduct that demeans the inherent Dignity of the human person as a son or daughter, cannot be respectful of the inherent Dignity of the human person, simultaneously.

Posted by: Anon | Aug 27, 2015 1:14:23 PM

N.D. doesn't understand the legal difference between belief and conduct.

The First Amendment stands for the Enlightenment principle that no religious person or institution has the right to use the apparatus of the secular State to foist their irrational, solely symbolic, metaphorical beliefs (about conception, in this case) down another person's throat.

Anyone is free not to condone or affirm gay marriage. That is a matter of belief and the government has no authority over belief. But conduct in the service of that belief can cause harm to someone else who doesn't share the same irrational belief. Government is instituted for the purpose of regulating, balancing, and/or reducing the harms of conduct, whether religiously motivated or not. Such as irrational discrimination against same-sex couples desiring the same secular government benefits that opposite sex couples have.

A government that has the power to reduce the cognitive dissonance a believer suffers inside his or her head when an irrational belief system conflicts with reality, is a theocratic government, not an American one.

Posted by: Doug | Aug 27, 2015 11:12:58 AM

The marital act is Life-affirming and Life-sustaining, and can only be consummated between a man and woman united in marriage as husband and wife. No government has the authority to force any person or group of persons to condone the engaging in or affirmation of sexual acts outside of the marital act.

Posted by: N.D. | Aug 27, 2015 1:17:46 AM

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