New York Law School

Art Leonard Observations

California Supreme Court Revives Mandatory Sex Offender Registration for Non-Vaginal Sex With Minors

The California Supreme Court ruled 5-2 on January 29, 2015, that the state’s sex offender registration law does not violate equal protection when it gives courts discretion whether to impose a registration requirement on adults who engage in vaginal intercourse with minors age 16 or 17, but mandates registration for other sexual acts involving minors of those ages.  Johnson v. Department of Justice, 2015 WL 363184.  The decision overruled a 2006 case, People v. Hofsheier, 37 Cal.4th 1185, in which the court had ruled that all adults who had sex with 16 or 17 year olds were similarly situated and that there was no rational basis for the differential treatment, so that judges should be able to exercise discretion about whether to require registration in all cases.

The dissent, by Justice Kathryn Werdegar with the concurrence of Justice Goodwin Liu, argued that the distinction had a homophobic origin and would disparately harm gay people.  Justice Werdegar argued that the court’s departure from its general rule of not overruling recent decisions was not warranted in this case.  The court’s opinion was written by Justice Marvin Baxter, who had dissented in 2008 when the court ruled that same-sex couples were entitled to marry and that sexual orientation is a suspect classification for purposes of equal protection under the California Constitution.

Justice Werdegar’s dissent sets out the background for the distinction in registration requirements, dating back to 1947, when the sex offender registration statute listed oral sex and sodomy with a minor as registerable offenses, but did not list sexual intercourse with a minor.  (Sexual intercourse is defined for purposes of the statute as vaginal intercourse.)  At the time, the statute required registration for all oral sex, even if it involved only consenting adults.  Back then, the only lawful sex act in California was vaginal intercourse involving a married couple.  Subsequent liberalization of the sex crimes laws led to passage of the Brown Act in 1975, which decriminalized consensual sex between adults, including gay sex.  The legislature also gave the courts discretionary authority to order sex offender registration in cases involving vaginal intercourse between adults and minors, but retained mandatory registration for all other sex acts involving minors.  One of the results of this change was that men who faced multiple charges including both oral and vaginal sex with a minor could plea bargain their cases down to avoid mandatory registration.  This option was not available to gay men charged with sexual activity with teenage boys in the specified age range, for whom registration was mandatory.

Justice Baxter asserted that the 2006 case in which the court found the equal protection violation had been intended to make a narrow exception, involving a young man who had consensual oral sex with a teenage girl, but that the lower courts in California had run with it to reject mandatory registration in cases involving much wider age gaps.  Painting a picture of disarray in the lower courts, a majority of the Supreme Court decided to reexamine its prior ruling.

The starting point for that analysis is that there is no constitutionally protected liberty interest for adults to have sex with minors, as the U.S. Supreme Court implied in Lawrence v. Texas when it emphasized that its ruling striking down the Texas Homosexual Conduct Law was focused on sexual activities of consenting adult same-sex couples.  Since no fundamental right is involved, wrote Baxter, the legislature’s policy choice is reviewed under the rational basis test.  Any legitimate reason for the distinction in treatment that the court might hypothesize could serve to uphold the law.

In the 2006 case, the court had ruled that there was no practical difference between vaginal intercourse and other forms of sex that would justify a different treatment, as they were all equality outlawed if minors were involved but legal as between adults.  Baxter disagreed, writing for the court that because vaginal intercourse could lead to pregnancy and other forms of intercourse could not, the legislature could rationally treat it differently.  The state is concerned with the welfare of children, and children born as a result of consensual intercourse between a man and a 16 or 17 year old girl could be disadvantaged if their father, stigmatized as a registered sex offender, was restricted as to where he could live and might be excluded from a wide range of employment opportunities.  Thus, ruled the court, it was rational for the legislature to authorize judges to exercise their discretion about whether to mandate registration in such cases.

In her dissent, Justice Werdegar contended that this avoided the important question whether such discretion should be afforded in all cases so that judges could consider whether mandatory registration would be appropriate in cases involving oral or anal sex as well.  There might be many reasons to distinguish among cases, especially where the adult and the teen are relatively close in age and their relationship was consensual.  She noted that most of the enforcement of the “statutory rape” laws, under which otherwise legal sex is outlawed because of the age of a participant, tends to be targeted against gay men, and that mandatory sex offender registration could just as severely affect them as it might affect straight men who get teenage girls pregnant.   And this targeting was originally because of moral disapproval of homosexuality, as exemplified by a 1974 California court decision, rejecting a constitutional challenge to the mandatory registration requirement, which said that “the defendant’s arguments were those of ‘the congenital homosexual to whom that is natural which the vast majority of the population deems unnatural.'”

She observed that a 1966 UCLA Law Review study of sex crimes enforcement practices “found that police officers, when they had a choice of statutes under which to arrest gay men, consciously chose those offenses requiring registration. . ., the ‘predominant view’ being that ‘homosexual offenders should be registered.’  In interviews, officials gave various reasons for wanting to register homosexuals, including the beliefs that they were prone to commit forcible sex offenses or offenses against children and that requiring registration would discourage homosexual conduct.”

The differential registration requirements, she wrote, perpetuate the old distinction between heterosexuality as “normal” and homosexuality as “abnormal.”  “Indeed, as the majority notes, when the prohibition on sexual intercourse with underage girls was removed from California’s rape statute and designated as the new offense of ‘unlawful sexual intercourse,’ the principal goal was to eliminate the social stigma of labeling offenders as ‘rapists,'” she observed.  This reflected legislators’ views that apart from the age of the younger sex partner, there was nothing abnormal or necessarily immoral about heterosexual men having vaginal intercourse with teenage girls.

“What is clear,” she wrote, “is that even in 1970, when all oral copulation was still banned as a sexual perversion, sexual intercourse with a minor was deemed unworthy of social stigma.  The difference in attitude towards oral copulation and sexual intercourse reflected in [the] differential registration requirement is thus a continuation of historical attitudes: while sexual intercourse with minors was an offense, the act itself was a normal one not considered deserving of any social stigma; oral copulation, in contrast, was an unnatural act typically engaged in by homosexuals.”

Criticizing the majority for its proposed “rational basis” for the continuing distinction, she wrote: “Careful attention to whether a posited reason is plausible and realistic is particularly appropriate here given that our registration law’s differential treatment of oral copulation and sexual intercourse has origins in irrational homophobia, continues to impact gay people in a differentially harsh way (as those in a same-sex relationship cannot plead to the discretionary registration offense of unlawful sexual intercourse) and involves severe restrictions on liberty and privacy.  We should hesitate to approve a statutory discrimination that may still bear the taint of irrational prejudice against homosexuals.”

Of course, there is a ready solution to this problem.  The California legislature, which has a large majority of gay-friendly Democrats in both houses, could immediately end this discrimination by giving judges discretionary authority in all cases of sexual contact between adults and minors to determine whether sex offender registration is an appropriate response to the charged offense, taking into account the age of the parties and the circumstances under which the activity occurred.  Justice Werdegar’s dissent is a clear call for legislative reform, as she explains that by overruling the 2006 decision, “the majority reinstates a scheme that had a disproportionately adverse effect on gay and lesbian youth and unnecessarily saddled nonpredatory offenders of either sexual orientation with the stigma and restricted liberties attendant on sex offender registration.  Adherence to stare decisis is not a rigid command, but in this instance it is the wiser course; Hofsheier should not be overruled.”

 

 

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Federal Judge Voids Alabama Same-Sex Marriage Ban

U.S. District Judge Callie V. S. Granade ruled on January 23 that Alabama’s constitutional and statutory ban on same-sex marriage violates the 14th Amendment.  Her ruling in Searcy v. Strange, 2015 U.S. Dist. LEXIS 7776 (S.D. Alabama), released on a Friday afternoon, did not make any mention of a stay pending appeal, but the public announcement of its release came too late in the day for same-sex couples to apply for licenses at county clerks’ offices, which were closed for the weekend.  Anticipating the possibility that same-sex couples would seek licenses when offices opened on Monday morning, Attorney General Luther Strange filed a motion seeking a stay on Friday night, arguing that the state should not be required to issue marriage licenses to same-sex couples unless the Supreme Court ruled in favor of same-sex marriage in a decision that is widely-expected to be issued late in June.

[Update note on January29: Judge Granade granted the state a 14-day stay to February 9 to give it a chance to ask the 11th Circuit for a stay pending appeal.  She also issued second opinion in the case of a gay male couple seeking the right to marry, Strawser v. Strange, and, dismissing the argument that her first ruling was binding only on the parties and not on the state’s Probate Judges, who issue marriage licenses and register marriages, she issued a “clarifying opinion” that quoted from the New Year’s Day opinion by Florida District Court Judge Robert Hinkle, making clear that her declaration of unconstitutionality was binding on all state officials, not just the Attorney General.  Responding to that, the state’s Probate Judges Association announced a change in its view, assuring that its members statewide would issue licenses to same-sex couples if and when the stay is lifted.  Attorney General Strange promptly filed a notice of appeal and motion for a stay with the 11th Circuit.  The National Center for Lesbian Rights’ legal director Shannon Minter will represent the Strawser plaintiffs in defending their victory in the expected appeal by Strange.]

Alabama is in the same federal circuit as Florida, the 11th, where a federal court declared that Florida’s same-sex marriage bans are unconstitutional last summer but twice stayed its ruling, first to see what the Supreme Court would do with several pending petitions in marriage equality states (which were denied on October 6), and then to allow the state to seek a stay of the ruling from the 11th Circuit.  In December, a panel of the 11th Circuit refused to stay the Florida ruling and the Supreme Court also refused to stay it, with two justices, Antonin Scalia and Clarence Thomas, noting that they would have granted the stay.  As a result, the Florida ruling went into effect on January 5, even though the 11th Circuit has not yet ruled on a marriage equality case.  This sequence of events suggests that Alabama should not be able to get a stay.  The one intervening event that might suggest otherwise is the Supreme Court’s announcement on January 16 that it was granting petitions from plaintiffs in four states to review the 6th Circuit’s decision rejecting constitutional challenges to  same-sex marriage bans in Ohio, Michigan, Tennessee and Kentucky, thus creating an argument that any new developments in lower federal courts on marriage equality should wait for the Supreme Court’s ruling in that case.  However, although the Supreme Court had not yet conferenced the various petitions from the 6th Circuit at the time it denied the Florida stay request on December 19, the justices were certainly aware of those petitions and the likelihood that they would be granted when it denied that stay.  Since the Supreme Court does not explain its decisions on stay motions, however, lower courts are left to guess at what they should mean for subsequent stay requests.

The Attorney General’s motion for stay relies heavily on the many stay decisions that were issued by lower federal courts during 2014 on the ground that the possibility of Supreme Court review required maintaining the “status quo” rather than allowing a marriage ruling that might ultimately be reversed go into effect.  Attorney General Strange repeated the arguments of his colleagues from other states, asserting that allowing same-sex marriages prior to a final definitive ruling could lead to “confusion” about the status of the marriages.  A few courts have now ruled, however, that there is no confusion about the status of such marriages, upholding the validity of same-sex marriages performed in Utah and Michigan under analogous circumstances.

Judge Granade, who was appointed to the bench by President George W. Bush in 2001 and took office in 2002, wrote a brief but decisive opinion, shorter than almost all the marriage equality opinions released by federal district judges since the first in Utah in December 2013.  Her bottom line was that the state had not articulated a rational basis for excluding same-sex couples from marriage, much less the compelling interest that would be necessary to sustain a deprivation of the fundamental constitutional right to marry.

The case was brought on behalf of Cari D. Searcy and Kimberly McKeand by private counsel, and is one of several marriage equality cases pending in Alabama.  The women were legally married in California.  McKeand bore a son through donor insemination and the couple wanted to have the child formally adopted by Searcy under a provision of Alabama’s adoption law that allows a person to adopted their “spouse’s child,” but she was turned down by the Mobile County Probate Court, which ruled that Alabama’s “Sanctity of Marriage Amendment” and “Marriage Protection Act” barred the court from treating Searcy as McKeand’s “spouse.”  This denial was upheld by the Alabama Court of Civil Appeals and the women turned to federal court, seeking both a ruling that the state’s marriage ban is unconstitutional and an order prohibiting the state from enforcing it.

In blatant defiance of the 1st Amendment of the U.S. Constitution, the Alabama marriage amendment refers to marriage as “a sacred covenant,” and thus belies the religious motivations of its framers, but the lawsuit by Searcy and McKeand did not attack it on that basis.  Instead, building on the wave of marriage equality rulings issued by district courts in the wake of the Supreme Court’s 2013 decision striking down the Defense of Marriage Act, U.S. v. Windsor, they asserted a violation of the 14th Amendment Due Process and Equal Protection Clauses.

The state’s first line of defense was to argue that the lawsuit must be rejected because of Baker v. Nelson, in which the Supreme Court summarily dismissed a challenge to Minnesota’s ban on same-sex marriage in 1972, saying that it did not raise a “substantial federal question.”  Judge Granade rejected this argument, pointing out that almost all of the federal courts that have ruled in marriage cases since 2013 have found it to have been superseded by later “doctrinal developments.”  At the appellate level, the only outlier from this virtual consensus has been the 6th Circuit Court of Appeals, whose November 7 ruling will be reviewed by the Supreme Court.  The 2nd, 4th, 7th, 9th, and 10th Circuits have all agreed that Baker is no longer a binding precedent on lower federal courts.

Turning to the 14th Amendment arguments, the judge noted that in the 11th Circuit she is bound to apply the rationality test in equal protection cases involving sexual orientation discrimination because of prior decisions by the circuit court.  She observed, however, that “the post-Windsor landscape may ultimately change the view” that the 11th Circuit had previously expressed, although “no clear majority of Justices in Windsor stated that sexual orientation was a suspect category.” (The 9th Circuit has disagreed, ruling last year that because of Windsor lower federal courts must apply “heightened scrutiny” to sexual orientation discrimination claims.)

In a case involving a fundamental right, however, a higher level of scrutiny is applied both under due process and equal protection theories.  “Numerous cases have recognized marriage as a fundamental right,” she wrote, “describing it as a right of liberty, of privacy, and of association.”  She quoted from a series of Supreme Court decisions describing the “strict scrutiny” that must be applied in reviewing laws that deprive individuals of this liberty.  Under that approach, the defendant “cannot rest upon a generalized assertion as to the classification’s relevance to its goals,” she wrote, quoting from a 1989 Supreme Court opinion concerning racial preferences in government contracting.  Instead, the government’s burden is to show that the law is “narrowly tailored” to achieve a “compelling interest.”

The state’s policy argument in support of its ban was based on its asserted “legitimate interest in protecting the ties between children and their biological parents and other biological kin.”  This did not impress Judge Granade as sufficient.  She wrote, “The Court finds that the laws in question are not narrowly tailored to fulfill the reported interest.  The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children.  He proffers no justification for why it is that the provision in question singles out same-sex couples and prohibits them, and them alone, from marrying in order to meet that goal.  Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate.  There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying.  Nor does the state prohibit recognition of marriages between such couples from other states.”

“The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote,” she continued.  “There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples.  In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.”

The judge also pointed out that if the state’s goal is “promoting optimal environments for children,” it was defeating its goal.  “Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex children,” she asserted.  She quoted from Supreme Court Justice Anthony M. Kennedy’s opinion in U.S. v. Windsor, where he asserted that a law denying recognition to same-sex marriages “humiliates thousands of children now being raised by same-sex couples” and “brings financial harm” to them.  “Additionally,” she wrote, “these laws further injure those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.”

Having found the bans unconstitutional, Judge Granade granted the plaintiffs’ motion for summary judgment and denied the state’s contrary motion, ordering that the defendant, Attorney General Luther Strange, who was sued in his capacity as the state’s chief legal officer, be enjoined from enforcing those laws.  The judge made no mention of whether the state had taken the precaution of asking for a stay as part of its summary judgment motion papers, and did not respond immediately to the motion for stay filed several hours later by the Attorney General’s office.

According to the organization Freedom To Marry, the Alabama ruling is the 60th decision in favor of marriage equality that has been rendered since the Supreme Court’s 2013 DOMA decision, mostly by federal trial judges.  On the other side of this equation are a mere handful of state and federal trial-level rulings.

 

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Supreme Court Grants Four Petitions to Review 6th Circuit’s Marriage Ruling

The U.S. Supreme Court announced on January 16, 2015, that it was granting four petitions to review the 6th Circuit Court of Appeals ruling in DeBoer v. Snyder, 772 F.3d 388 (Nov. 6, 2014), which had rejected the claim that same-sex couples have a constitutional right to marry and to have such marriages recognized by other states.  The 6th Circuit’s ruling, issued on November 6 on appeals by four states from district court pro-marriage equality decisions, had opened up a split among the circuit courts, as the 4th, 7th, 9th and 10th Circuits had all ruled in favor of marriage equality claims during 2014, and the Supreme Court had refused on October 6 to review the rulings by the 4th, 7th and 10th Circuits.  (The 9th Circuit ruled was issued the day after the Supreme Court announced the three cert. denials, and only one of the two states involved in that case, Idaho, has filed cert. petitions, on which the Court has not taken action.) DeBoer v. Snyder, No. 14-571, cert. granted, 2015 WL 213650 (Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, cert. granted, 2015 WL 213646 (Jan. 16, 2015); Tanco v. Haslam, No. 14-562, cert. granted, 2015 WL 213648 (Jan. 16, 2015); Bourke v. Beshear, No. 14-574, cert. granted, 2015 WL 213651 (Jan. 16, 2015).  Attorney General Eric Holder, Jr., quickly announced that the Justice Department would file a brief with the Court urging reversal of the 6th Circuit.

The Court’s announcement of the cert. grant was accompanied by an announcement that the cases have been consolidated for the Court’s consideration, and that the grant was limited to the following two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?  The Court allotted 90 minutes for oral argument on Question 1 and 60 minutes for oral argument on Question 2.  Presumably these time allocations were made to assure that attorneys representing each of the four states involved – Ohio, Michigan, Kentucky and Tennessee – would have time to argue, and that representatives of each of the Petitioners would also have sufficient time.   Also, presumably, the questions were phrased this way and the argument divided into two parts because some of the cert. petitions address only marriage recognition, while others asked whether states are required to let same sex couples marry.

Three of the cases were decided on pretrial motions while the Michigan decision (DeBoer) followed a full trial on the merits, providing the Court with a trial record and detailed factual findings by the district court.  The Court limited the parties to briefing on the merits and presenting oral arguments on the questions presented in “their respective petitions.”  Thus the parties in the Ohio (Obergefell) and Tennessee (Tanco) cases will be arguing on Question 2, while the parties in the Michigan (DeBoer) case will address Question 1, and the parties in the Kentucky case (Bourke) case will be arguing on both questions.  Presumably the Court also scheduled a separate argument on the recognition question because it implicates some different doctrinal issues from the marriage argument.  Indeed, the recognition question could be decided by a straightforward extension of U.S. v. Windsor without ever addressing whether states are required to issue marriage licenses to same sex couples, since the states are not really presenting significantly different arguments from those raised by the defenders of DOMA as reasons for the federal government to refuse to recognize same sex marriages.   The Court’s announcement did not specify how the time would be divided between the parties, but presumably Petitioners will get half the time and Respondents will get half the time and perhaps be left to work out among themselves how to allocate the time within their share.  Several LGBT litigation groups are among the attorneys representing Respondents.

The Court’s announcement included a tight briefing schedule calculated to get the case argued and decided before the end of the Supreme Court’s term in June.  Petitioners’ merits briefs are due by 2 pm on Friday, February 27, Respondents’ briefs by 2 p.m. on Friday, March 27, and all reply briefs by 2 p.m. on Friday, April 17.  Potential amici would be subject to the same tight briefing schedule.  The last scheduled argument date on the Court’s calendar for the October 2014 Term is April 29, 2015, so it seems likely the arguments will be held on April 27, 28 or 29, which would give the Court two months to settle on opinions if it wants to release them before the term ends.  According to the Court’s posted calendar, the last date for announcing decisions is June 29, but the Court has been known to extend the end of the term by a few days to dole out end-of-term opinions as they are ready.

The Court’s actions since October 6 may provide some insight in trying to forecast how the Court will ultimately rule.  After it denied certiorari in the cases from the 4th, 7th, and 10th Circuits on October 6, the Court denied all subsequent motions from other states in those circuits to stay subsequent marriage equality rulings issued by district courts there.  The Court similarly denied all motions to stay district court rulings from states in the 9th Circuit after that circuit’s October 7 ruling.  Most significantly, the Court issued an order on December 19, denying a motion by Florida Attorney General Pam Bondi to stay a U.S. District Court marriage equality ruling in that state, pending the state’s appeal to the 11th Circuit Court of Appeals.  That a majority of the Supreme Court was not willing to stay the Florida ruling, even though the case was yet to be decided by the 11th Circuit, spoke volumes about the likely outcome of its decision on the merits.  If a majority of the Court was not willing to stay the Florida ruling pending appeal, it seems likely that a majority of the Court is ready to rule on the merits in favor of marriage equality.  Only Justices Antonin Scalia and Clarence Thomas were announced as disagreeing with the Court’s denial of a stay.  Although it is always hazardous to predict what the Supreme Court will ultimately do on an issue as to which it is likely to be sharply divided, it is also likely that there will be some consistency between the Court’s actions on stay motions after October 6 and its final ruling.  It is worth noting that prior to October 6, the Court granted every stay motion presented by a state seeking to delay lower court marriage equality decisions pending appellate review.

Over two years ago, the Court announced in December 2012 that it would review a decision by the 9th Circuit Court of Appeals that struck down California’s Proposition 8, a state constitutional amendment enacted by voter initiative in 2008 that banned the performance or recognition of same sex marriages in California.  At that time, the Court added a question to those posed by the defenders of Prop 8 in their petition for review of the lower court decision striking it down: whether the Petitioners had “standing” to appeal the original ruling by the district court in San Francisco?  As none of the California officials named as defendants in Perry v. Schwarzenegger was willing to defend Proposition 8 on the merits, the district court had allowed the proponents of the initiative to intervene, and it was they who were appealing the ruling.  During the oral argument in that case, titled Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), some of the time was taken up by arguments about the Petitioner’s standing, but the remaining time was devoted to arguing the merits.  Those curious about the types of questions the Supreme Court justices might pose to attorneys on Question 1 in the DeBoer case can access the audio recording of the oral argument on the Supreme Court’s website.  (The oral argument in Hollingsworth did not focus on the recognition question.)

Based on the Hollingsworth oral argument, there were predictions that the Court might vote 5-4 to strike down Proposition 8, but ultimately the Court concluded, in an opinion by Chief Justice John G. Roberts, Jr., that the Petitioners did not have standing, thus leaving the district court’s ruling in place and effectively striking down Proposition 8 without a Supreme Court ruling on the merits, on June 26, 2013.  Same sex marriages resumed in the nation’s most populous state a few days later.  The dissenting opinion in Hollingsworth was written by Justice Anthony M. Kennedy, Jr., who argued that the Court had erred in finding lack of standing but who carefully limited his opinion from expressing any view as to the constitutionality of Proposition 8.

Justice Kennedy was the author of the other momentous marriage equality decision issued on the same day, United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court voted 5-4 to declare unconstitutional the federal definition of marriage in the Defense of Marriage Act.  In common with Kennedy’s earlier gay rights opinions in Romer v. Evans and Lawrence v. Texas, his Windsor opinion was not ideally clear about its doctrinal grounding, never expressly stating that the case involved a fundamental right or a suspect classification, or merited heightened scrutiny, thus spawning a variety of views from legal commentators and lower court judges and the precedential meaning of the opinion.  The 9th Circuit construed Windsor to be a suspect classification case, and decreed “heightened scrutiny” as the standard to apply in subsequent equal protection cases brought by gay plaintiffs.  See Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, motion for rehearing en banc denied, 759 F.3d 990 (9th Cir. 2014). On this basis the 9th Circuit subsequently struck down the Nevada and Idaho same sex marriage bans in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), petitions for cert. pending.  Some other courts ducked these issues, instead striking down bans on same sex marriage by finding that none of the alleged justifications for the bans survived some form of rational basis review, or that the bans were products of unconstitutional animus.  Some commentators have suggested that Kennedy’s decision is most explicable as being based on his view that DOMA was an expression of animus against gay people by Congress.  Justice Antonin Scalia, dissenting from the Court’s decision, argued, as he had in his Lawrence dissent ten years earlier, that the majority opinion would support claims for the right of same sex couples to marry, and many of the lower court decisions cited and quoted from one or both of his dissents in support of their conclusions.

The Windsor ruling led to an avalanche of marriage equality lawsuits in every state that did not allow same sex couples to marry. The avalanche of lawsuits soon turned into an avalanche of court opinions.  Within weeks of Windsor, the federal district court in Ohio had ordered preliminary relief in Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, July 22, 2013), a marriage recognition case, and in December the district court in Utah issued a ruling on the merits striking down that state’s same sex marriage ban in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah, Dec. 20, 2013).  Dozens of district court rulings and rulings by four circuit courts of appeals followed during 2014, so that by the time the Court granted cert. to review the 6th Circuit decision on January 16, 2015, same sex couples could marry in 37 states and the District of Columbia.  (In two of those states, Kansas and Missouri, disputes about the scope of lower court rulings made marriage available only in certain counties while the litigation continued.) There were also marriage equality district court decisions pending on appeal before the 1st, 5th, 8th and 11th Circuits.  The only federal courts to have rejected marriage equality claims after Windsor were district courts in Louisiana and Puerto Rico and the 6th Circuit Court of Appeals, in the consolidated case from four states that the Supreme Court will review.  A week before granting cert. in the 6th Circuit case, the Court rejected an attempt by Lambda Legal to get direct review of the Louisiana decision, Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014), cert. denied, 2015 WL 133500 (Jan. 12, 2015).  The Court denied that petition just days after the 5th Circuit heard oral arguments in that appeal as well as state appeals from marriage equality rulings in Texas and Mississippi.

The most pressing question presented by the cert. grant, of course, is whether the Court will use this case to declare a constitutional right to marry throughout the United States, and to have those marriages recognized wherever a married couple might travel or reside.  But to those following the course of gay rights in the courts, the question of what rationale the Court uses to decide the case will also be pressing, especially as the various circuit court decisions have adopted different theories that might have a different impact for litigation about other issues.  This case may also give the Court an opportunity to clarify the circumstances under which lower federal courts are bound to follow an old Supreme Court decision whose rationale appears to have been eroded by subsequent legal developments.

The 6th Circuit opinion by Circuit Judge Jeffrey Sutton held that the Supreme Court’s dismissal of a constitutional challenge to Minnesota’s same-sex marriage ban in Baker v. Nelson, 409 U.S. 810 (1972), precluded a ruling for the plaintiffs, as the Supreme Court had never overruled or disavowed that decision, in which the Court had stated that the issue of same-sex marriage did not present a “substantial federal question” with no further discussion or explanation.  That ruling was also cited by the Louisiana and Puerto Rico district courts in their rejection of marriage equality claims, and it played a prominent role in a lengthy dissenting opinion issued just a week earlier by 9th Circuit Judge Diarmuid O’Scannlain, protesting his court’s refusal to reconsider its marriage equality ruling as requested by Idaho Governor Butch Otter.  See Latta v. Otter, 2015 WL 128117 (Jan. 9, 2015).

The question of the continuing precedential authority of Baker v. Nelson came up during the oral argument at the Supreme Court in Hollingsworth, the Proposition 8 case, when counsel for the Prop 8 proponents argued that the district court should not have ruled on the merits in that case because of Baker.  At that time, Justice Ruth Bader Ginsburg dismissed Baker’s significance, point out that when Baker was decided the Court had not yet issued its rulings holding that heightened scrutiny applied to sex discrimination claims.  Because the 6th Circuit put such weight on Baker v. Nelson, it is likely to be discussed again during the DeBoer argument, and might also be addressed in the Court’s subsequent opinion.

The 4th, 7th, 9th and 10th Circuits all held that Baker was no longer a binding precedent, noting that since 1972 the Court had expanded its view of the fundamental right to marry in a series of cases building on its historic 1967 decision striking down Virginia’s criminal law banning interracial marriages, Loving v Virginia; that it had struck down an anti-gay state constitutional amendment on an equal protection challenge in Romer v. Evans in 1996; that it had struck down anti-gay sodomy laws in Lawrence v. Texas in 2003; and, of course, that it had struck down as violating both due process and equal protection the federal ban on recognizing same sex marriages in Windsor in 2013. In light of all these developments, even though the Court had never expressly overruled Baker, it would be ludicrous to suggest that same sex marriage does not present a “substantial federal question” after June 26, 2013. Even the Court’s most outspoken opponent of gay rights, Justice Antonin Scalia, might conceded to that point, since his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor both proclaimed that the rationale of the majority opinions in those cases would open up claims for same-sex marriage, rendering the Court’s ipse dixit in Baker irrelevant.  The Windsor majority opinion did not even mention Baker v. Nelson, which the court below, the 2nd Circuit, dismissed as not relevant to the questions presented in that case.

The courts that have rejected marriage equality claims relying on Baker have stressed that the Court’s summary dismissal in Baker followed by several years its ruling in Loving v. Virginia.  They argue that this makes clear that the fundamental right to marry, as identified in Loving, could not extend to same sex couples; if it did, they argued, the Court would not have dismissed the Baker appeal.  This argument treats Loving as entirely a race discrimination case, but it conveniently ignores the way Loving was expanded by the Supreme Court in subsequent cases, including Turner and Zablocki, which spoke broadly of the fundamental right to marry as transcending the narrow issue of procreation and didn’t turn on racial issues.

In the marriage equality decisions during 2014 from the 4th and 10th Circuits, Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, sub nom Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6, 2014), the courts held that same-sex couples were being deprived of a fundamental right to marry, and that the states had failed to show that they had compelling justifications for abridging that right.  Hedging their bets, these courts also found that the state’s justifications failed to meet rationality review.  A Supreme Court ruling on this ground would not disturb the Court’s continuing reluctance to find explicitly that sexual orientation is a suspect classification, which would raise a presumption of unconstitutionality every time the government adopts a policy that discriminates on that basis and would put the burden on the government to prove an important, even compelling, policy justification to defend its position.  On the other hand, the 7th and 9th Circuits, in Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied sub nom. Bogan v. Baskin and Walker v. Wolf, 135 S.Ct. 316 (Oct. 06, 2014), and Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied,  2015 WL 128117 (Jan. 9, 2015), premised their decisions on equal protection, with the 9th Circuit, in line with its earlier ruling in a jury selection case, holding that sexual orientation discrimination calls for heightened scrutiny and the 7th Circuit following a similar path without articulating the “suspect classification” terminology.  A Supreme Court ruling based on equal protection that overtly applies heightened scrutiny would have a more far-reaching effect in other gay rights cases outside the marriage issue, which is why it seems more likely that the Court would take the due process route, or, as some argue that Justice Kennedy did in Windsor, attribute the same-sex marriage bans to unconstitutional animus and avoid any overt expression as to the other doctrinal issues.  The Court might be leery about reaffirming too broad a fundamental marriage right, for fear that it would put in play constitutional challenges to laws penalizing polygamy, adultery, and incest (as Scalia argued in his Lawrence dissent).  A ruling premised on finding animus as the prima motivator of same sex marriage bans would end the bans without necessarily altering Supreme Court doctrine applicable to any other gay-related or marriage-related issues that might come before the Court.

Most predictions about how the Court may rule presume that the Windsor majority will hold together and that the Windsor dissenters would dissent.  That would make Justice Kennedy the senior member of the majority who would likely assign the opinion to himself, as he did in Windsor.  (Now-retired Justice John Paul Stevens was the senior justice in the majority in Romer and Lawrence and assigned those opinions to Justice Kennedy, who returned the favor in Lawrence by prominently citing and quoting from Stevens’ dissenting opinion in Bowers v. Hardwick.)  Nobody is predicting that Justices Scalia, Thomas or Samuel Alito would abandon their dissenting votes in Windsor to join a marriage-equality majority, so they are unlikely to have any role in determining the Court’s doctrinal path in the case.  Indeed, Judge Sutton’s opinion for the 6th Circuit defiantly embraced the “originalism” approach advocated by Justices Scalia and Thomas for construing the 14th Amendment (an approach never endorsed by a majority of the Court), under which a claim for marriage equality would founder on the argument that the mid-19th century framers of that amendment could not possibly have intended or understood that its provisions would require states to license marriages by same sex couples.  Justice Kennedy, whose opinions in Lawrence and Windsor clearly disavowed an originalist approach to interpreting the scope of liberty protected by the due process clause, would never agree to these arguments.   However, there has been speculation that Chief Justice Roberts might join the majority, which would give him control of the opinion assignment.  In that case, one might expect a narrowly-focused opinion intended to keep together a doctrinally diverse majority of the Court, and intended to have as little effect on other cases as possible.

In the wake of the cert. grant, several media commentators tried to find particular significance in the Court’s wording of the questions and division of the argument, suggesting that the majority of the Court might have a plan to rule for the Petitioners on marriage recognition while ruling for the Respondents on the question whether states must license same sex marriages.  Such an approach was floated by 5th Circuit Judge James Graves in his questioning on January 9 during oral arguments of the appeals from Texas, Mississippi and Louisiana, but strongly refuted by counsel for the plaintiffs in those cases.  One suspects that the 5th Circuit may hold off on issuing a ruling now that the Supreme Court has granted cert. to decide these questions, in which case we may never find out whether Judge Graves is committed to that course.  However, in light of the procedural and substantive posture of the cert. petitions coming up from four different states, the Court’s organization of the questions and division of the argument appears more a logical response to a complicated appellate situation than a strategic move to produce a “split the baby” decision.

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Federal Court Orders Recognition of Michigan Same-Sex Marriages

U.S. District Court Judge Mark Goldsmith has ruled in Caspar v. Snyder that even though the U.S. Court of Appeals for the 6th Circuit reversed a trial court marriage equality ruling last year, more than 300 couples who married in the brief period time between that overruled decision and the 6th Circuit’s grant of a stay pending appeal are entitled to have their marriages recognized by the state.  Rejecting the state’s argument that the 6th Circuit ruling effectively invalidated the marriages, Judge Goldsmith commented in his January 15 opinion, “what the state has joined together, it may not put asunder.”  Just one day later, the Supreme Court announced that it will be reviewing the 6th Circuit’s decision this term.

A different district judge, Bernard Friedman, ruled late on Friday, March 21, 2014, that Michigan’s ban on same-sex marriages violated the 14th Amendment.  Several county clerks then announced that they would open their offices on Saturday, March 22, to issue marriage licenses to same-sex couples and perform wedding ceremonies, and several hundred couples rushed to take advantage of the opportunity.  Later on that day, the 6th Circuit Court of Appeals granted the state’s motion to stay Judge Friedman’s ruling pending an appeal.  Subsequently, on November 6, the 6th Circuit reversed Judge Friedman’s decision, holding that same-sex couples do not have a constitutional right to marry.  The plaintiffs in that case petitioned the Supreme Court for review, and the Court granted review on January 16, as the 6th Circuit’s decision conflicts with rulings by the 4th, 7th, 9th and 10th Circuits, requiring a national resolution of the question presented in that case.

After the 6th Circuit issued its stay, Michigan Governor Rick Snyder issued a statement acknowledging that the roughly 300 marriages that were performed that Saturday morning were legal marriages, but in his view the stay meant that Michigan’s marriage amendment and statutory ban were back in effect and so the state could not and would not recognize those marriages unless the litigation was finally concluded in favor of the plaintiffs. This state of affairs was obviously unsatisfactory to the people who had gotten married.  Several of those couples represented by the ACLU of Michigan filed a lawsuit seeking to compel the state to recognize their marriages.  A second lawsuit was filed on behalf of people who were married in other states but live in Michigan, claiming that their marriages were also entitled to recognition.  As part of his January 15 ruling, Judge Goldsmith rejected a motion to consolidate the two cases, asserting that they presented distinctly different issues.

Judge Goldsmith concluded that “the continued legal validity of an individual’s marital status is a fundamental right comprehended within the liberty protected under the Due Process Clause of the Fourteenth Amendment.  Even though the court decision that required Michigan to allow same-sex couples to marry has now been reversed on appeal, the same-sex couples who married in Michigan during the brief period when such marriages were authorized acquired a status that state officials may not ignore absent some compelling interest — a constitutional hurdle that the defense does not even attempt to surmount.”

In other words, the state’s main argument in opposing this lawsuit was not that there was some compelling reason not to recognize these marriages.  Rather, the state was arguing, among other things, that it was premature to recognize them until there is a final conclusion to the original marriage case, DeBoer v. Snyder, by the Supreme Court either denying review or deciding the case on the merits.  But to Judge Goldsmith, once a clerk had issued a license and the marriage had been solemnized, it was a legal marriage, and the married couple had a right to be treated the same as all other married couples in the state unless the state had a compelling justification for treating them differently.

The state also mounted a barrage of procedural objections, including claiming that withholding recognition did not impose any harm that could not be remedied later on by monetary damages if the Supreme Court eventually reverses the 6th Circuit decision, obviating the need for the court to issue in injunction requiring recognition now.  But Judge Goldsmith did not agree that the plaintiffs’ claim to recognition for their marriages turned on that eventual outcome.  To be sure, if the Supreme Court reverses the 6th Circuit and holds that same-sex couples have a constitutional right to marry, the state’s continuing refusal to recognize these marriages would be unconstitutional.  On the other hand, Goldsmith asserted, even if the Supreme Court upholds the 6th Circuit, those marriages would still be valid, because at the time the clerks were issuing those licenses and performing those ceremonies pursuant to a duly issued federal district court decision that had not yet been stayed or reversed on appeal.

Furthermore, held Goldsmith, the plaintiffs had adequately shown that the harms they suffered were not just monetary.  There is a dignitary harm in being denied recognition of a lawfully-contracted marriage that cannot be compensated entirely by money, thus the plaintiffs are suffering an irreparable injury every day that the state denies recognition to their marriages, apart from the concrete refusal to allow certain of the couples to adopt a partner’s child or enroll in an employee benefits plan.  In this connection, it is worth remembering that the DeBoer case originated in a refusal to allow a same-sex co-parent to adopt, and that monetary damages cannot possibly fully compensate somebody for being prevented from obtaining a legal status for their family.

Judge Goldsmith also rejected the state’s suggestion that requiring recognition of the marriages now, while the ultimate outcome of the DeBoer case remains in doubt, might lead to the awkward and difficult process of having to unravel these marriages if the 6th Circuit’s decision is upheld.  The judge rejected the notion that the state would be entitled to try to recoup benefits or rescind insurance coverage retroactively in such a case, or that an affirmance of the 6th Circuit’s decision would necessarily mean that the marriages in question are invalid.  A reversal of the original trial court ruling in DeBoer by the 6th Circuit did not mean that district court’s ruling was of no effect, he wrote, characterizing the state’s argument to that effect as “an oversimplified misstatement.”  He pointed to other cases whether overturned trial court orders were nonetheless viewed retroactively as having legal effect until they were overruled.

As to Governor Snyder’s original statement that the 6th Circuit’s stay had “resurrected” the state’s marriage ban, Judge Goldsmith said, “Nothing in the DeBoer opinion addresses the right to retain one’s marital status in the face of the solemnizing state’s effort to invalidate it.  That question was never argued in DeBoer or decided.”  He wrote, “Plaintiffs acquired a marital status that Michigan bestowed upon them, and which Defendants – Michigan officials – themselves acknowledge was lawfully acquired at the time, pursuant to validly issued Michigan marriage licenses.”

However, realizing that the state might want to exercise its right to appeal his order, Judge Goldsmith granted a 21-day stay to give the state an opportunity to request a further stay pending appeal from the 6th Circuit and, if need be, the Supreme Court.  So although he has ordered the state to recognize these marriages, the order may not actually go into effect until the Supreme Court decides the marriage question, rendering the order a bit academic at this point.  Furthermore, the Supreme Court’s decision to review the 6th Circuit’s ruling gives that court more information upon which to decide whether a further stay should be granted.

ACLU attorneys representing the plaintiffs in this case include Jay D. Kaplan, Daniel S. Korobkin, Brook A. Merriweather-Tucker, and John A. Knight.  Also participating for plaintiffs is Andrew W. Nickelhoff, a Detroit attorney at Sachs Waldman P.C.  A team of attorneys led by Michael F. Murphy, an Assistant Attorney General, represents the state of Michigan.  News reports about this decision suggests some uncertain about whether the state would seek an appeal, but ultimately that seems likely, if only to preserve its right to appeal while regardless of what the Supreme Court does in the DeBoer case.

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Shirvell Strikes Out in Court of Appeals of Michigan

Andrew Shirvell, the former assistant attorney general from Michigan who was discharged for his conduct in reaction to the election of an openly gay student body president at his alma mater, the University of Michigan, suffered a double loss in the Court of Appeals of Michigan on January 8.  The Court upheld the denial of his discharge grievance, finding his conduct unprotected by the First Amendment, and also ruled that he was not eligible for unemployment benefits while he was looking for a new job after the discharge.

Shirvell began working as an assistant attorney general in 2007.  In 2010, Chris Armstrong was elected president of the University of Michigan Student Assembly, the first openly gay person to hold that position.  Shirvell was apparently outraged at this development, and he set up a public blog called “Chris Armstrong Watch,” which was dedicated to maligning Armstrong for his “radical homosexual agenda.”  Shirvell called Armstrong a “radical homosexual activist, racist, elitist, and a liar,” according to the opinion for the Court of Appeals by Judge Stephen Borello.  One posting “contained a rainbow flag with a swastika posted next to a photograph of Armstrong’s face with the word ‘resign’ nearby.”  Shirvell also called Armstrong a “privileged pervert,” and made various accusations about Armstrong’s alleged agenda as student body president, including a gender-neutral student housing policy “under which, according to Shirvell, ‘cross-dressing students will not have to share a dorm room with a member of the same sex,'” that he contended would “undoubtedly lead to a massive increase in rapes.”

Amidst many other accusations, Shirvell accused Armstrong of hosting a “gay orgy” and accused him of sexual promiscuity, commented about his “deranged character” and suggested that Armstrong was trying to facilitate “homosexual shenanigans” by gay residents of the university’s dormitories.  Also, during a television interview sparked by publicity stemming from his activities, Shirvell “did not deny that on one occasion he referred to Armstrong as ‘Satan’s representative’ on the student assembly” on a Facebook page.  Shirvell also “appeared outside Armstrong’s residence and at events where Armstrong was present and held protest signs.”

Shirvell’s activities and accusations brought him notoriety, leading to “intense media scrutiny” including appearances on CNN’s Anderson Cooper AC360 program and Comedy Central’s The Daily Show.  During these TV appearances, Shirvell said he was speaking as a private citizen and U Mich alumnus, not in his official capacity as an assistant attorney general, but pressure mounted on then-Attorney General Michael Cox (a conservative Republican and no supporter of gay rights) to do something about Shirvell.  Cox sent an email to CNN and later did an interview with Cooper, in which he explained that Shirvell had a right to express his personal views protected by the First Amendment.  But then the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell’s behavior and questioning its effect on the ability of the Attorney General’s office to carry out its mission.  In response to Armstrong’s complaints to university officials about Shirvell’s conduct on the campus, the university barred Shirvell from campus briefly.  The Attorney General’s office began to receive negative e-mails and telephone calls about Shirvell.

Finally, Cox had enough.  After a disciplinary hearing, he terminated Shirvell for “conduct unbecoming a state employee,” explaining that Shirvell’s conduct “could reasonably be construed to be an invasion of privacy, slanderous, libelous, and tantamount to stalking behavior unbecoming an Assistant Attorney General.”

Shirvell did not take this lying down.  Applying for unemployment benefits while he looked for new work, he also filed a grievance with the state’s civil service commission.  The Commission found that Cox had just cause to terminate Shirvell, and the circuit court agreed.  The Unemployment Insurance Agency found that he was not entitled to benefits due to the circumstances of his discharge.  Shirvell appealed both rulings.  At first he had some luck on the unemployment benefits, as a different circuit court held that Shirvell’s activities were protected by the First Amendment as free speech so he should receive the benefits, but ultimately both cases came before the Court of Appeals, which ruled against him on both counts.

The court focused first on the First Amendment issue, finding that Shirvell was speaking as a private citizen on issues that might be considered of public concern, and thus his speech might enjoy some protection.  However, the Supreme Court has ruled that even in such circumstances, a public employee may lose First Amendment protection if his speech “impaired discipline by superiors, detrimentally impacted close working relationships, undermined a legitimate goal or mission of the employer, impeded the performance of the speaker’s duties, and impaired harmony among co-workers.”

“In the present case,” wrote Judge Borello, “the Department introduced evidence to show that its interests in the effective provision of governmental services outweighed Shirvell’s speech interests,” showing that “Shirvell’s speech interfered with the Department’s internal operations and adversely affected the efficient provision of governmental services.  The Department received numerous e-mails, telephone calls and letters in response to Shirvell’s televised interviews.  Department staff members were questioned about Shirvell during unrelated proceedings and the Michigan Civil Rights Commission and the Ann Arbor City Council issued resolutions condemning Shirvell’s behavior and questioning the Department’s ability to fulfill its mission.  It was clear in both proceedings [the unemployment benefits proceeding and the grievance proceeding] that Shirvell’s speech created a media firestorm which in turn created a public-relations crisis.  The Department dedicated resources to respond to media inquiries about Shirvell and ultimately Cox found it necessary to take time to appear for a nationally-televised interview to defend the Department’s response to Shirvell’s conduct.”  Ultimately, the court found that the complaints “negatively impacted the Department’s internal operations.”

The court found that the notoriety generated by the situation could impede the Department’s ability to recruit “the most qualified employment candidates,” and that Shirvell’s speech “had, or was reasonably likely to have, a detrimental impact on close working relationships and harmony among co-workers within the office.”

In other words, while public employees do not automatically forfeit their right to speak as citizens on controversial matters, a public employer is not required to tolerate the situation if the employee’s speech and related activities makes them a detriment to the office, and the evidence here showed that Shirvell had crossed that line.  Thus, the court found that the Department had met the burden of showing that the adverse impact of Shirvell’s conduct on the department outweighed any First Amendment protection that his speech might otherwise enjoy.

The court found that there was just cause for Cox to fire Shirvell.  The evidence supported the conclusion that his conduct was “unbecoming a state employee in that his speech and speech-related conduct undermined his professional character and reputation, adversely affected the Department’s internal operations, and had a tendency to destroy public respect for the Department and confidence in the Department’s ability to provide services.”  The court pointed out that “as a legal representative of the state of Michigan, the conduct of an assistant attorney general should be held to a higher standard than the average private citizen.”

As to unemployment benefits, the state’s law disqualifies somebody who was “discharged for misconduct connected with the individual’s work.”  Shirvell was arguing that the conduct in question was private and unofficial, but Cox’s internal investigation showed that he was using Department computer equipment for some of the anti-Armstrong activities.  Furthermore, past decisions of the court supported a finding that even off-duty conduct can be disqualifying because it may undermine the ability of a public servant to fulfill his functions in an official capacity.  “When viewed in totality,” wrote Borello, “Shirvell’s behavior evinced a willful disregard of the Department’s interests and he disregarded standards of behavior that the Department had a right to expect of him.”

The court emphasized that an assistant attorney general is “in a position of public trust,” a representative of the state appointed by an elected, politically accountable official, the attorney general. “As an elected official,” wrote Borello, “the attorney general serves all of the citizens of Michigan, irrespective of race, creed, religion, gender or sexual orientation.  Thus, the Department had a real and substantial interest in maintaining neutrality and conducting its operations in a non-biased manner; the public actions of its employees, therefore, were critical in protecting this interest.”  The court found that “Shirvell’s public ‘campaign’ against Armstrong undermined” the Department’s interests by casting “a cloud over both his and the Department’s ability to maintain the public trust and severely tarnished the Department’s reputation.”

Apart from these findings, the court found that Shirvell “received a written reprimand for failing to follow the Department’s media contact policy,” and had suffered a brief suspension without pay “after a heated argument with his supervisor involving inappropriate language and threats.  Viewing the recording in its totality,” wrote Borello, “it is clear that there was substantial and compelling evidence” to support the ruling by the unemployment benefits agency, so the circuit court should not have overturned its denial of benefits.

The court affirmed the grievance ruling and reversed the unemployment benefits ruling.  Judges Christopher M. Murray and Peter D. O’Connell signed Judge Borello’s opinion for a unanimous result.

There is a certain irony in this case, inasmuch as Attorney General Cox was a staunch defender of the state’s ban on same-sex marriage, the state’s appeal of a marriage equality ruling to the 6th Circuit resulted in a reversal of the federal district court’s marriage equality decision, and the state legislature has repeatedly refused to enact a ban on sexual orientation discrimination.  But Shirvell’s conduct went too far even for a state government that is not particularly gay-friendly, and he ultimately paid the price through loss of his job and benefits.

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January 2015 Brings a Flurry of New Marriage Equality Developments in First Two Weeks of New Year

On January 6, Florida became the 36th marriage equality state as the stay of a federal district court order expired and county clerks in the nation’s third most populous state began issuing marriage licenses to same-sex couples.  (A few couples got started a day early after a state court judge in Miami lifted a stay applicable to Miami-Dade county in a state court lawsuit.)  As close observers of the unfolding marriage equality story focused their attention on the Supreme Court’s January 9 private conference, when the Court would begin discussing how to handle five pending petitions seeking review of lower court rulings against marriage equality, other federal courts began issuing a new round of rulings, some placing new states in play.

First in was a January 8 ruling by U.S. District Judge William S. Duffey, Jr., in Atlanta, ruling on the state’s motion to dismiss Inniss v. Aderhold, a marriage equality lawsuit brought by Lambda Legal and local attorneys on behalf of six same-sex couples, some seeking to marry and others seeking recognition for the marriages they had contracted out of state.  Georgia, in common with all the other states in the deep south federal 11th and 5th Circuits, has a state constitutional amendment as well as statutes blocking same-sex couples from marrying, and the state is vigorously defending that ban in this lawsuit.  Judge Duffey accepted some of the state’s arguments, dismissing part of the lawsuit, but concluded that the plaintiffs are entitled to proceed on a narrow equal protection theory.

The plaintiffs raised Due Process and Equal Protection challenges under the 14th Amendment, arguing that the ban violates their fundamental right to marry and discriminates against them because of their gender, gender stereotypes, and sexual orientation.  The state’s first line of defense was to argue that the Supreme Court’s decision in 1972 in Baker v. Nelson that a challenge to Minnesota’s ban on same-sex marriage failed to raise a “substantial federal question” was binding on the district court and obliged it to dismiss the case.

As have most of the other federal judges confronting the Baker v. Nelson argument, Judge Duffey concluded that “doctrinal developments” in the Supreme Court since 1972, and most significantly the failure by the Supreme Court even to mention Baker v. Nelson in its 2013 decision striking down Section 3 of the Defense of Marriage Act, meant that he was not precluded from considering this case on the merits.  However, he rejected the plaintiffs’ argument that the state’s denial to them of the right to marry violated a fundamental right, accepting the state’s argument that all of the Supreme Court precedents concerning the right to marry involved different-sex couples and thus did not stand for the proposition that opposite-sex couples enjoy a fundamental right to marry.

Having thus ruled out a challenge based on the Due Process Clause, Duffey turned his attention to the Equal Protection arguments.  He credited the state’s argument that the ban did not discriminate because of sex, since both men and women are equally forbidden to marry same-sex partners, and he did not accept the plaintiffs’ argument that the ban improperly perpetuated gender stereotypes.  Instead, he focused in on the claim that the state was discriminating because of the plaintiffs’ sexual orientation. Even as to that, he concluded that the Supreme Court’ gay rights decisions have not treated sexual orientation as a “suspect classification,” and thus the challenged marriage ban will survive Equal Protection review if it is supported by a rational justification.

But finally, at the very end of his decision, Duffey came to acknowledge that the plaintiffs might have a valid constitutional claim.  He characterized the state’s argument that it has a legitimate interest in “encouraging the raising of children in homes consisting of a married mother and father, ensuring legal frameworks for protection of children of relationships where unintentional reproduction is possible; ensuring adequate reproduction; fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children, and exercising prudence before departing from the traditional definition of marriage,” as “conclusory assertions” that “are not supported by specific facts.”  He complained that the state’s motion to dismiss “does not address how Georgia’s asserted interests in child welfare and procreation are advanced by the State’s prohibition on same-sex marriages, and the State’s refusal to recognize lawful marriages performed in other States.”

On the other hand, the plaintiffs’ Complaint makes factual allegations that challenge the rationality of the state ban, by showing actual harms to the welfare of children being raised by same-sex couples in denying marriage to their parents, and “that the exclusion does not offer a conceivable benefit to children of opposite-sex couples.”  The Complaint also built on the Supreme Court’s Windsor decision, which had pointed out how forbidding same-sex couples from marrying “humiliates” their children.  “At this stage of the proceedings,” wrote Duffey, “the Court is required to accept these facts as true and consider the allegations in the Amended Complaint in the light most favorable to Plaintiffs.”  Consequently, Duffey concluded, the court was “required” to deny the motion to dismiss the Equal Protection claim.  One gets a sense from reading his opinion that he came to this conclusion grudgingly, but the state’s failure to prevent any factual counter to the plaintiffs’ case was too glaring to ignore.

Duffey’s ruling provided an interested preview of the arguments that were made the next day, January 9, as a three-judge panel of the U.S. Court of Appeals for the 5th Circuit heard arguments in New Orleans on three marriage equality appeals.  Plaintiffs were appealing an adverse ruling by the federal court in Louisiana, while the states were appealing solid marriage equality rulings from federal courts in Texas and Mississippi.  The three-judge panel was anticipated to be tough for the plaintiffs, with two appointees by President Ronald Reagan, elderly long-serving judges, and only one appointee by President Barack Obama on the panel.  However, one of the Reagan appointees, Patrick Higginbotham, has emerged as a libertarian on social issues, and took an active role in skeptical questioning of the lawyers presenting arguments on behalf of the state governments.  The other Reagan appointee, Jerry Smith, kept harping on Baker v. Nelson and prodding the lawyers to say that Baker foreclosed the 5th Circuit from ruling for the plaintiffs as the Supreme Court “has already decided this case.”  (This argument proved successful for the state governments in the 6th Circuit’s November 6 ruling on appeals from Michigan, Ohio, Kentucky and Tennessee, but was rejected by the 4th, 7th, 9th and 10th Circuits in their opinions issued last year.)  The third member of the panel, James Graves, was clearly dismissive of the Baker argument, as was Higginbotham, and both focused in on the same point that concerned Judge Duffey in Atlanta: the “justifications” argued by the state for their bans never grappled with the question of how the bans actually advanced the states’ interests.

Listening to the arguments was like listening to people talking past each other.  The states’ lawyers argued, essentially, that the institution of marriage was devised as a mechanism for channeling procreation, and that since same-sex couples could not procreate, the state had no reason to let them marry.  The various plaintiffs’ attorneys, by contrast, pointed out, as had the Supreme Court in the DOMA case, that many same-sex couples are raising children, whether conceived through donor insemination or surrogacy or obtained through adoption, and to the extent the state’s concerns focus on the welfare of children, there was no showing that denying marriage to their parents benefited them in any way.  Gay journalists present in the courtroom, and this writer who listened to the audio recording of the argument later released by the court, concluded that the panel was likely to vote 2-1 in favor of marriage equality for the three states of the 5th Circuit.

One fly in the ointment was a suggestion floated by Judge Graves more than once that perhaps a solution to the problem would be to require the states to recognize same-sex marriages contracted elsewhere but to allow them to refrain from granting licenses for the performance of marriages in their own states.  Attorneys for the plaintiffs forcefully countered this suggestion, arguing that there was no rational way to do one without doing the other.  Another was the casual remarks by the judges and attorneys about the Supreme Court conference occurring simultaneously in Washington, with the possibility that the 5th Circuit panel might just sit on this case while waiting to see what the Supreme Court does.  The lawyer for the Texas plaintiffs, Daniel Lane, strongly urged the judges to make a decision and not wait on the Supreme Court, pointing out that his clients had pressing needs to be married or have their marriages recognized.

Later on January 9, the 9th Circuit Court of Appeals, based in San Francisco, which had been mulling Idaho’s petition for reconsideration of its October 7 marriage equality ruling by a larger panel of the court, finally announced that it was denying the petition.  Idaho Governor Butch Otter had hedged his bets on this, filing a petition for review with the Supreme Court at the end of December.  As is usually the case, the 9th Circuit did not issue an opinion explaining why it was denying the petition, merely stating that at the request of one member of the court, a poll of all the active judges was taken and the suggestion to rehear the case did not win a majority.

It’s clear where that suggestion came from: Circuit Judge Diarmuid O’Scannlain, one of the most conservative judges on the Circuit, who was joined by two colleagues in dissenting from the denial of rehearing.  O’Scannlain’s lengthy dissent seemed to channel 6th Circuit Judge Jeffrey Sutton’s opinion, arguing that the Supreme Court has already decided this issue in 1972, and that as a lower court subject to Supreme Court precedent, the 9th Circuit should be dismissing marriage equality cases, not deciding them.  He also emphasized the traditional abstention by federal courts from deciding issues about the domestic relations policies of the states.  As had Sutton, O’Scannlain found support in his views from Justice Anthony Kennedy’s opinion in the DOMA case, which had emphasized the traditional role of the states in deciding who could marry, finding DOMA flawed for failing to respect the states’ role by withholding federal recognition from the marriage.   As many federal court judges have commented, there is plenty of quotable material from Kennedy’s opinion for both sides to argue.

The 9th Circuit’s denial of en banc review was widely expected, even by Otter and his attorney general, a co-defendant who also filed his own petition for review with the Supreme Court.  What was not widely expected was that the Supreme Court would end its January 9 conference without announcing that it would grant one or more of the petitions for review in the marriage cases.  Indeed, the Court said nothing about the cases on Friday.  When it reconvened on Monday, January 12, the Court announced that it would not review the Louisiana case, in which Lambda Legal sought to by-pass the 5th Circuit entirely.  The Court did indicate that it would continue to discuss the appeals from the 6th Circuit decision during its next conference on January 16.

But that was not the only marriage equality news on January 12.  In South Dakota, U.S. District Judge Karen E. Schreier granted the plaintiffs’ motion for summary judgment in a pending marriage equality case, Rosenbrahn v. Daugaard, brought by Joshua Newville of Madia Law LLC and Debra Voigt of Burd And Voigt Law Office and the National Center for Lesbian Rights on behalf of six same-sex couples.  It is no longer big news when a federal district judge rules for marriage equality, as more than three dozen have done so since December 2013, but interest focuses on which constitutional theory they embrace.  Contrary to Judge Duffey, who dismissed the Georgia plaintiffs’ Due Process claim, Judge Schreier premised her decision on the fundamental right to marry, rejecting the argument that the Supreme Court’s marriage precedents were limited by the fact that the couples in all of those cases were different-sex couples.

“Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right,” she wrote.  “The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right.  In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry.  Thus, the right at stake is not a new right to same-sex marriage, as defendants contend.  Instead, the substantive due process right is the right to marry, which right is fundamental.”  Having reached this conclusion, she subjected South Dakota’s ban to “strict scrutiny,” and found that the state’s proffered justifications (channeling procreation into marriage and proceeding with caution) flunked the test.  Neither was a compelling interest that could only be achieved by denying same-sex couples the right to marry.

She pointed out that if “proceeding with caution” was a compelling state interest, “this justification would support every existing law” that was subjected to constitutional challenge.  “Even if it were compelling,” she wrote, “defendants have not shown what additional information South Dakota needs to gather, why preserving the status quo is the only means of avoiding unidentified future harm, and how long South Dakota same-sex couples should wait to enjoy their fundamental constitutional right to marriage.”

Since a fundamental right was at stake, Judge Schreier pointed out, the Equal Protection challenge also went in favor of the plaintiffs, since a state must prove a compelling interest in order to discriminate with respect to a fundamental right.

However, since the 8th Circuit Court of Appeals, in whose jurisdiction South Dakota is located, has not yet issued a marriage equality ruling as part of the current round of litigation, the judge granted the state’s motion to stay her order pending appeal.  Appeals are already pending before the 8th Circuit from marriage equality rulings in Missouri and Arkansas, but the court has yet to schedule oral arguments.  Two other states in the Circuit already have marriage equality: Minnesota by statute and Iowa by state court decision.  Cases are still pending before federal trial courts in North Dakota and Nebraska, the remaining states in the circuit.

The lack of an 8th Circuit appellate decision might have served as a good justification for staying the order until recently, but the Supreme Court’s refusal to stay the Florida marriage decision, even though the 11th Circuit had not yet decided the state’s appeal, certainly undercuts that justification.  The Supreme Court allowed Florida to become the 36th marriage equality state without benefit of an appellate ruling, sending an unmistakable signal that a majority of the Court is comfortable with allowing such orders to go into effect while the appellate process grinds on.  It’s hard to see why courts in other states should not follow suit.

 

Legal Issues | Comment

Appellate Court of Illinois Recognizes Unjust Enrichment Cause of Action on Behalf Same-Sex Former Domestic Partner

The Appellate Court of Illinois ruled in Blumenthal v. Brewer, 2014 Il App (1st) 132250, 2014 Ill. App. LEXIS 904 (Dec. 19, 2014), that a state court judge who is the former same-sex partner of a physician can maintain a legal claim on the theory of unjust enrichment to seek compensation for her financial contributions towards the home they shared and the physician’s professional practice.  The court found that legislative and common law developments since 1979 had rendered the Illinois Supreme Court’s leading decision against lawsuits between former unmarried partners, Hewitt v. Hewitt, 394 N.E.2d 1204, obsolete.

Jane Blumenthal and Eileen Brewer met and became domestic partners in 1981 or 1982 when they were both graduate students at the University of Chicago.  Their partnership ended in 2008, after they had raised three children together.  By then, Blumenthal was a doctor in a lucrative partnership practice, and Brewer was an elected Illinois Superior Court judge. They had merged their finances during their partnership, and had registered as domestic partners when that option became available in Cook County in 2003.  They had cross-adopted each other’s children. They had purchased real estate together, and Blumenthal had used joint funds to buy into the medical partnership.  After Blumenthal moved out, Brewer assumed the continuing financial responsibilities of the house. The children are now all grown up and emancipated adults.  Blumenthal filed a partition action in 2010, seeking to divide the value of the house the women had purchased together to reclaim her share.  Brewer counterclaimed, seeking sole title to the property to “equalize” the parties’ assets, as she had been a stay-at-home mom for their kids until they were old enough for her to resume her legal career, Blumenthal’s medical partnership had been purchased with joint funds, and Brewer had carried the financial burden of the house since Blumenthal had moved out.  Blumenthal argued that under Hewitt v. Hewitt Brewer could not maintain such a counterclaim, and Cook County Circuit Judge LeRoy K. Martin agreed, dismissing her claim.  Brewer, represented by the National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn, appealed with amicus support from the ACLU of Illinois and Lambda Legal.

When the Illinois Supreme Court decided Hewitt, there were strong legislative policies in effect supporting that court’s view that such a lawsuit could not be brought by an unmarried cohabitant, including a statute criminalizing unmarried cohabitation, the state’s statute abolishing the doctrine of common law marriage in Illinois, and court decisions disfavoring child custody for parents who were cohabiting outside of marriage.  Brewer argued successfully to the appellate court that the legislative and judicial landscape in Illinois had changed so drastically since 1979 that Hewitt no longer represented an accurate view of how Illinois law should treat such a claim today, and the court agreed in an opinion by Justice Margaret Stanton McBride.  The judge prefaced a detailed discussion of the historical evidence by stating: “We find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer’s suit is not an attempt to retroactively create a marriage, and that allowing her to proceed with her claims against her former domestic partner does not conflict with this jurisdiction’s abolishment of common law marriage.”

In addition to agreeing that changes in the law had rendered Hewitt obsolete, the court pointed out that the decision “may have had unintended consequences.  The court acknowledged its intention to enforce legislative policies that intentionally penalized unmarried couples and their children as a means of discouraging cohabitation and encouraging marriage,” wrote McBride.  “The ruling, however, may have the contrary effect – refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry.  A cohabitant who by happenstance or design takes possession or title to jointly-acquired assets is able to retain them without consequence when their ‘financially vulnerable’ counterpart is turned away by the courts.”  She found support for this argument in a law review article by Candace Saari Kovacic-Fleischer, “Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment,” 68 Wash. & Lee L. Rev. 1407, 1424 (2011), from which she quoted at length.

“After having reviewed the legislation that was enacted during the years that Brewer and Blumenthal were together, buying a house, having children, dividing up their domestic responsibilities and pursuing their legal and medical careers, we conclude that although Brewer and Blumenthal were not legally entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation or Brewer’s claims against Blumenthal,” wrote Justice McBride. “Furthermore, Brewer does not allege an agreement with Blumenthal based on illicit consideration of sex, which was the primary historical rationale for rejecting cohabitation agreements.  Instead, Brewer, who never had the option of marrying Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship, that they divided their domestic and work responsibilities to best provide for the three children they had together, and that neither partner intended for their decisions and family roles to leave Brewer at a financial disadvantage later in life.”  The court also noted, of course, that after the couple split up, Illinois passed first a civil union law and then a marriage equality law, further confirming the view that Illinois does not consider same-sex relationships to be “illicit” in the sense that term was used by the Illinois Supreme Court in Hewitt.

The court also noted that its decision was in line with developments in other states, including the leading California case of Marvin v. Marvin, the nation’s most celebrated “palimony” case, the revision of the common law summary in the Restatement (Third) of Restitution and Unjust Enrichment, and the changed view embraced in Corbin’s Contracts treatise, which identified the Marvin decision as having decisively influenced courts in other states to become receptive to palimony claims.  The Illinois Supreme Court had relied on previous editions of these two published sources in Hewitt.

McBride concluded that in light of the court’s determination that Hewitt no longer controlled the outcome, it was unnecessary for it to address Brewer’s argument that a contrary decision would violate the Illinois and federal constitutional guarantees of due process and equal protection of the laws.  The court vacated the circuit court’s dismissal order and remanded the case “with directions to consider the parties’ remaining arguments,” as to which the court expressed no opinion.  As part of her opposition to Brewer’s counterclaim, Blumenthal had contested some of Brewer’s factual assertions, but the trial court had not resolved that dispute when it determined that the counterclaim had to be dismissed as a matter of law.

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Rhode Island Supreme Court Rules Catholic Firefighters’ Constitutional Rights Not Abridged by Assignment to Staff Fire Truck in Gay Pride Parade

The Rhode Island Supreme Court unanimously ruled on December 19 that two Providence fire fighters with religious objections to homosexuality did not enjoy a First Amendment right to decline an assignment to staff a fire truck participating in the 2001 Pride Parade in their city.  Fabrizio v. Providence, 2014 R.I. LEXIS 158.  The court reversed a decision by Providence County Superior Court Justice Brian Van Couyghen, who had denied a motion for summary judgment filed by two of the defendants, the former mayor and former fire chief of Providence, who had asserted qualified immunity from liability in the case.

According to the opinion for the court by Justice William R. Robinson III, the Providence Fire Department received numerous requests each year for fire trucks to participate in parades and other public events.  In 2001, Fire Chief James Rattigan, apparently in consultation with Mayor Vincent A. Cianci, Jr., decided to respond affirmatively to such a request from the Rhode Island Pride Commission, and they ordered that a fire truck and associated crew from Engine Company 7, the company stationed closest to the parade route, take part.  Two of the assigned firefighters, Theodore J. Fabrizio, Jr., and Stephen J. Deninno, self-described Roman Catholics with moral objections to homosexuality, protested the assignment, but Chief Rattigan directed them to comply and they reluctantly did.  They allege that they had heard that Mayor Cianci had ordered the company’s participation.  After stewing about their experience for a few years, they both filed lawsuits against Cianci, Rattigan, and the City of Providence, asserting various claims of discrimination, infliction of emotional distress, and violation of their constitutional rights.

The fire fighters allege that they were subjected to various kinds of verbal harassment from parade onlookers, received threatening and obscene phone calls after the event, and suffered harassment as well from fellow fire fighters.

The case has gone back and forth between the state and federal courts, and substantial discovery has taken place.  Over the course of the litigation, several of the counts have fallen out of the case.  Cianci and Rattigan, who no longer occupied their official positions, filed a motion for summary judgment on grounds of qualified immunity from claims that they had deprived the plaintiffs of freedom of religion, speech and association in violation of the Rhode Island Constitution.  The trial judge denied their motion, ruling that there needed to be more factual development of the case before he could rule for them as a matter of law.  Because appeal as of right is not available under Rhode Island court practice from a denial of a summary judgment motion, the appellants had to petition the Rhode Island Supreme Court for a writ of certiorari, arguing that they enjoyed qualified immunity and should be dropped from the case as defendants.

The Supreme Court took the position that it was unnecessary to decide on the issue of immunity if the plaintiffs had failed to state a valid constitutional claim against the defendants, and it concluded that this was indeed the case.  “Here, respondents received an order to participate in the parade because their engine company was assigned to the task; it is uncontested that such orders were common, as evidenced by Chief Rattigan’s reference to receiving ‘numerous’ requests from parade organizers for Fire Department participation and as reflected in the standard form for such requests used by the Department. After receiving this work assignment from their employer (the regularity of which has not been questioned), respondents participated in the parade merely as relatively anonymous public servants. We are unaware of any pertinent legal authority in support of the proposition that, in such specific circumstances, employees’ rights are violated if they happen to possess religious objections to the beliefs of the group with which an otherwise legitimate work assignment requires brief interaction,” wrote Justice Robinson.  The court found that the fire fighters’ participation in the parade did not present a case of compelled speech on their part; staffing a fire truck in a parade is not a political statement when it is done by assignment of superiors.  He continued, “The individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants,” so they had no constitutional claim to raise.

Given that conclusion, there was no occasion to consider whether the mayor and fire chief were entitled to immunity.

The case stands for a broader principle, not specifically articulated by the court but present nonetheless.  Public employees at work are carrying out the directions of their superiors and are not, as such, free actors.  The same principle underlies numerous rulings, from the Supreme Court on down, that public employee speech enjoys no protection when it is “official speech,” that is, speech undertaken as part of the employee’s job.  When a public employee within the scope of his or her employment speaks or engages in conduct that might be seen as expressive and thus falling within the realm of speech, it is officially the speech of the government, not the employee.  The same principle underlies the proposition, now frequently contested, that government clerks cannot rely on their personal religious views or ethical objections to refuse to issue marriage licenses to same-sex couples in jurisdictions where legal bans on same-sex marriage have been struck down.  As such, this Rhode Island Supreme Court decision may stand as an important precedent as religious exceptionalists step forward to challenge the obligation of objecting clerks to issue such licenses or, in jurisdictions where clerks routinely do so, to preside over such marriage ceremonies.

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New York Appellate Division Finds Lesbian Birth Mother “Judicially Estopped” From Denying Former Partner’s Parental Status

A unanimous panel of the N.Y. Appellate Division, 2nd Department, ruled on December 24 that a birth mother who successfully sued her former same-sex partner for child support was “judicially estopped” from arguing that the partner lacked standing to seek visitation rights with the child.  Arriaga v. Dukoff, 2014 WL 7332764.

Estrellita Arriaga and Jennifer Dukoff lived together in a romantic relationship beginning in December 2003 and registered as domestic partners in New York City in 2007.  They decided to have a child together and Dukoff became pregnant with sperm from an anonymous donor, giving birth to their daughter in November 2008.  The women shared parental responsibilities, but Arriaga never legally adopted the child.  Their relationship ended in May 2012, and Arriaga moved out in September of that year, when the child was almost four years old.  Arriaga continued to visit with the child several days a week.

In October 2012, Dukoff filed a petition in the Family Court seeking child support from Arriaga.  In the petition, she described Arriaga as “a parent to the child” who was “chargeable with the support of the child.”  While the support proceeding was pending, Arriaga filed her own lawsuit against Dukoff, seeking custody or visitation with the child.  After the Family Court issued an order on January 16, 2013, requiring Arriaga to pay child support, she amended her petition, pointing out that the Family Court had adjudicated her as a parent of the child, and thus she was entitled to seek custody and/or visitation as an adjudicated parent.  Dukoff moved to dismiss Arriaga’s petition, arguing that under the N.Y. Court of Appeals precedents of Alison D. v. Virginia M., 77 N.Y.2d 651, and Debra H. v. Janice R., 14 N.Y.3d 576, which had reaffirmed the %Alison D.% ruling, Arriaga was a “legal stranger” to the child who did not have standing under New York law to seek custody or visitation.

Suffolk County Family Court Judge Theresa Whelan denied Dukoff’s motion to dismiss, finding that the prior adjudication of Arriaga’s parental status in the child support proceeding was binding in this later proceeding under the doctrine of judicial estoppel.  Once an issue has been adjudicated in favor of a party, judicial estoppel precludes that party from asserting a contrary view in a later proceeding.  When it was in her financial interest for the court to consider Arriaga a mother with support responsibilities, Dukoff argued in favor of Arriaga’s parental status; she could not now turn around and deny that status when it was in her interest to do so in defending against a possible custody or visitation order.

The Appellate Division panel consisting of Justices Reinaldo E. Rivera, Sheri S. Roman, Colleen D. Duffy, and Betsy Barros issued a unanimous decision not attributed to any of the individual judges, which means it was most likely drafted by a court attorney and approved collectively by the panel.  The decision affirms Judge Whelan’s order awarding visitation rights to Arriaga.

The court noted that in the Debra H. case, while reaffirming Alison D. the Court of Appeals had found that a lesbian co-parent who was a Vermont Civil Union partner of the birth mother at the time the child was born would be recognized as a parent by a New York Court as a matter of comity to Vermont law.  In that case, the Court of Appeals found that recognizing Debra H. as a parent “did not conflict with the public policy of New York and would not ‘undermine the certainty that %Alison D.% promises biological and adoptive parents and their children,’ since ‘whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption.  And both civil union and adoption require the biological or adoptive parent’s legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish %de facto% or functional parentage.”  In other words, the Appellate Division panel found that the concerns animating the %Alison D.% decision were “not implicated in the present case,” since the  judge would not have to hold a hearing or make any sort of factual investigation to determine whether Arriaga should be deemed a parent, as that decision had already been made in the support proceeding.  Furthermore, the court pointed out, that support award was made at the request of Dukoff, who “was the party who sought to have Arriaga adjudicated a parent.”

Although the Court of Appeals has rejected the use of “equitable estoppel” to find that a same-sex partner is a parent, the Appellate Division pointed out that this use of the doctrine of judicial estoppel “differs from establishing parentage by equitable estoppel.”  Dukoff tried to argue that Arriaga should be precluded by judicial estoppel from asserting her parentage in this proceeding when she had taken the position in the support proceeding that her lack of parental rights under New York law precluded the court from requiring her to pay child support.  The Appellate Division found that “the doctrine of judicial estoppel is not applicable to Arriaga because she did not obtain a favorable judgment in the support proceeding.”  Only a party who has argued a point successfully in one proceeding is bound by that ruling in a subsequent proceeding under the doctrine of judicial estoppel.

During the course of this case, Arriaga dropped her request for custody, seeking only a visitation order, which Judge Whelan had granted.  The Appellate Division affirmed that order.

Jeffrey Trachtman and Andrew Estes of Kramer Levin Naftalis & Frankel LLP (New York City) and Susan G. Mintz of Gervase & Mintz P.C. (Garden City) represented Arriaga, and Margaret Schaefler of Huntington represented Dukoff.  Robert C. Mitchell of Central Islip appeared as counsel representing the interests of the child.

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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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