Shocker: Westboro Won’t Be Allowed to Intervene in Marriage Suit

Shocker: Westboro Won’t Be Allowed to Intervene in Marriage Suit November 10, 2014

This may be the most predictable news from the legal system since the last time Larry Klayman was hammered by a judge for being a shitty lawyer. I wrote last week that the Westboro Baptist Church had filed a motion to intervene in the Kansas same-sex marriage lawsuit and that this would be laughed at by the judges and that’s exactly what happened.

The virulently anti-gay Westboro Baptist Church made an insufficient case to intervene in a lawsuit challenging the ban on same-sex marriage in Kansas, a federal judge ruled Friday.

U.S. District Judge Daniel Crabtree, an Obama appointee who on Election Day ruled against the Kansas ban on same-sex marriage, determined in a seven-page decision state officials defending Kansas law adequately represent Westboro’s interests.

“WBC has not identified any differences between the defendant’s ultimate objective in the litigation and its own,” Crabtree writes. “Nor can the Court identify any—both seek to uphold Kansas’ constitutional and statutory prohibitions against same-sex marriage. A shared ultimate objective between an existing party and an applicant for intervention triggers a presumption of adequate representation.”

Instead of being allowed to intervene, Crabtree permits the Topeka-based church to file a friend-of-the-court brief “asserting any arguments it would like the Court to consider.”

And now the law clerks and judges in that circuit are passing that motion around and snickering at it.

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  • John Pieret

    What is more, the judge denied Phillip and Sandra Unruh, those nuts who claimed allowing SSM deprived them of their own property rights in their marriage, the right to intervene. The judge had stayed his order until 11/11/14 and the state had asked the 10th Circuit to extend the stay, which was denied. Unless Kansas can get SCOTUS (good luck with that!) or the local judge to extend the stay, all people will be allowed to marry in Kansas after tomorrow! Mazal tov!

  • gshelley

    Now that an appeals court has gone the other way and there is a good chance that the Supreme court will take that up, will that affect the chances of them taking the Kansas appeal? If the (10th I think) rules the other way, are they likely to accept that as well, or at this stage, are they probably going to refuse any cases that find anti SSM laws unconstitutional, but accept the ones that find it constitutional? What would that say? Can we even read anything into it?

    “We’re going to leave your ruling as it is, but we might rule in a different case that states can ban SSM”? Would that automatically overturn all the previous cases, or would they then have to appeal?

  • D. C. Sessions

    The 10th has already ruled on SSM (Utah, remember?)

    The chances of the 10th reversing itself at this point just to be nice to Kansas are, I suspect, rather remote.

  • gshelley

    Ah. For some reason I had in my head that the 10th and 6th were the two circuits appeals that were current (at least until the ruling). I imagine that sooner or later, some state that hasn’t been rejected already will appeal with the 5ths ruling in mind. If they were being sensible, they’d wait till the Supreme Court has accepted that, but there is probably some time limit they have to file an appeal.

  • John Pieret


    I’m pretty sure the 5th has schedule the briefs in its cases to be filed sometime in January 2015 and oral arguments for sometime after that. It is unlikely for the 5th to have a decision in time for SCOTUS to take up the appeal this term.

    If the parties in the 6th Circuit’s cases hump their butts, which they seem ready to do, SCOTUS could well grant certiorari by January and have a decision before the end of the term in June.

    As to which case SCOTUS will take up, the one they intend to overrule is as good as any case they intend to uphold. That was what was so surprising about to refusal to grant certiorari to any of the appeals from the other four Circuits … all the same issues were present in those cases and SCOTUS was just saying “not yet“. The 6th Circuit’s decision has forced SCOTUS’s hand and the dissent in that case suggested that that was the motivation of the majority … to force SCOTUS’s hand. That’s the real kicker here … SCOTUS doesn’t like to dance to anyone else’s tune. It could put off any decision until next term if the justices feel they are being used, though it could cause a lot of confusion in the country and the law. We’ll see …

  • vmanis1

    Just to be clear, the judge granted WBC the right to submit an amicus brief (as—I believe—the Unruhs are being permitted to, as well). The WBC ruling did contain an admonition that, since the Court had read the WBC brief, the arguments presented therein didn’t need to be rehashed in a subsequent amicus filing. I’m not up enough on the theory of judicial sarcasm to know whether that was just a statement of fact or a coded way of saying “I read your brief, and it’s crap. If you want to impress me, submit some new crap rather than the same old thing”.

  • John Pieret

    a coded way of saying “I read your brief, and it’s crap. If you want to impress me, submit some new crap rather than the same old thing”

    By George, I think you’ve got it!

    That’s exactly what the judge was saying but I doubt it’ll take because the “lawyer” for the church is, I believe, one of Fred Phelps’s crazed kids.

  • whheydt

    Re: John Pieret @ #1…

    Sotomayor has issued a temporary stay in response to an emergency petition from the KS AG. She wants to see a brief from the ACLU (plaintiffs lawyers) by 4 PM Tuesday.

    What do you want to bet that the whole court will dissolve the stay later this week (just like the last time this situation came up)?

    As for the 6th Circuit….I suppose that SCOTUS could buck it back down to 6th Circuit for “reconsideration” or even an en banc hearing, couldn’t they, as a way to duck the issue and–maybe–get a different result? It’s not like the original arguments for keeping the ban are any better or well thought out than in any of the other cases that have come up the line.

  • John Pieret


    I’m a little surprised that SCOTUS is going through the same drill again … issue stay, get opposing brief, get reply brief from state, refer to full court and dissolve stay within hours … same as with Idaho. But maybe they intend to surprise everyone yet again. I’m beginning to think they are having fun with us.

  • howardhershey

    “WBC has not identified any differences between the defendant’s ultimate objective in the litigation and its own,”

    IOW, the State of Kansas and WBC have the same arguments against gay marriage. Way to say that Brownback et. al.’s Kansas looks like the governmental version of WBC, just without the disruption of soldier’s funerals.