New York Law School

Art Leonard Observations

Third Week of November 2014 Was a Busy Week on the Marriage Equality Front

Things have begun to happen so quickly that I have fallen behind in my blogging on marriage equality developments, so here is a quick summary about events during the third week of November.

Monday, November 17 –  Plaintiffs in the 6th Circuit marriage equality cases from Ohio, Kentucky, Tennessee and Michigan finished filing their petitions for certiorari with the Supreme Court.  These are the first petitions for certiorari in marriage equality cases to be filed with the Court since it denied petitions presenting essentially the same constitutional questions on October 6 in cases from Utah, Oklahoma, Virginia, Indiana and Wisconsin.  Since October 6, the Supreme Court had consistently denied applications to stay district court marriage equality rulings from other states in the 10th and 4th Circuits, as well as applications from states in the 9th Circuit, where the Court of Appeals struck down the Nevada and Idaho bans on same-sex marriage on October 7.  Cert petitions from the Ohio and Tennessee cases had been filed on Friday, November 14, and the petitions from the Michigan and Kentucky cases were filed on November 17.  The state respondents have up to thirty days to file responses, although they are not required to file anything.  There was wide speculation that the Supreme Court will grant one or more of these petitions once the filings are complete and the cases are scheduled for consideration at a conference of the Court.  If one or more petitions are granted by mid-January, it is likely that the cases can be scheduled for argument in the spring with decisions forthcoming by the end of the Court’s term in June.  If the Court takes longer to decide whether to grant a petition, it is possible that these cases would not be argued until the Fall 2015 term, with decisions coming by June 2016.  Thus, as Justice Antonin Scalia predicted in his dissent in the 2013 DOMA ruling, U.S. v. Windsor, the question of same-sex marriage would be back before the Court within a year or two of that ruling.

The speculation about what the Court will do was fueled in part by Justice Ruth Bader Ginsburg’s comments during an appearance at the University of Minnesota Law School in September, when she remarked that the Justices saw no urgency in taking up this issue as long as all the courts of appeals were deciding cases the same way, but that a circuit split would generate such urgency.  She specifically referenced the then-pending 6th Circuit case as possibly meeting that contingency.  Now the 6th Circuit has dropped that bomb, opening up a split with the 4th, 7th, 9th and 10th Circuits.

Also on Monday, November 17, Arizona Attorney General Thomas C. Horne filed a notice of appeal in Connolly v. Roche, seeking review of the U.S. District Court’s decision striking down Arizona’s state constitutional and statutory bans on same-sex marriage.  A.G. Horne had not sought a stay in that case, stating at the time that it would be “futile” to seek a stay from the 9th Circuit in light of its October 7 ruling in Latta v. Otter.  However, one suspects that Horne was under terrific political pressure to appeal the ruling regardless, and he announced a motivation of trying to avoid paying a large attorney fee award to the plaintiffs.  Of course, his appeal will contend that the district court erred in striking down the marriage ban.  The 9th Circuit set a deadline of February 25 for the state’s brief in support of its appeal, and set March 27 as the due date for the Appellee’s answering brief, so this case would not be argued until April or later.

Tuesday – November 18.  This was an incredibly busy day for marriage equality developments.  The 4th Circuit Court of Appeals turned down a motion by South Carolina Attorney General Alan Wilson for a stay of the U.S. District Court’s order requiring the state to allow same-sex couples to marry.   Wilson sought the stay pending his filing an appeal in the 4th Circuit from last week’s ruling by the District Court in Condon v. Haley.  As soon as he received the 4th Circuit’s order turning down his request, Wilson filed an “emergency application” with Chief Justice John Roberts seeking a stay from the Supreme Court.  Meanwhile, U.S. District Judge J. Michelle Childs issued her ruling on a pending summary judgment motion in Bradacs v. Haley, a marriage recognition case, holding the state’s refusal to recognize same-sex marriages performed in other jurisdictions to be unconstitutional.  The South Carolina Supreme Court had previously blocked the issuance of marriage licenses in the state to same-sex couples pending a ruling by Judge Childs, so her decision, in combination with the 4th Circuit denial of a stay in the Condon case and the lack of any immediate Supreme Court response to Wilson’s application, combined to bring marriage equality to South Carolina beginning on November 19.

There was another important development on November 18.  The 9th Circuit Court of Appeals posted a brief statement on the webpage it had opened up for developments in Hamby v. Parnell, Alaska’s appeal of a December 13 marriage equality ruling.  The state had requested that its appeal go directly to an en banc panel, bypassing the usual three-judge panel, as a three-judge panel would have been bound by the Circuit’s ruling in Latta v. Otter (as to which a petition for rehearing en banc filed by Idaho Governor Butch Otter is pending before the court).  The notice stated: “No active judge has requested a vote to hear this case initially en banc within the time allowed by General Order 5.2a.  The request is therefore denied.”  A briefing schedule order previously issued by the court suggests that the case will not be ready for oral argument until sometime in the spring.  This may also foreshadow a denial of Governor Otter’s pending petition for en banc review.

But that’s not all for November 18.  Also heard from that date was the Kansas Supreme Court, with a ruling in State v. Moriarty, a lawsuit instigated by Kansas Attorney General Derek Schmidt against 10th Judicial District Chief Judge Kevin P. Moriarty, who had responded the U.S. Supreme Court’s refusal to review the 10th Circuit marriage equality cases by deciding that because Kansas was in the 10th Circuit its ban on same-sex marriages was unconstitutional; thus, Moriarty ordered that clerks under his jurisdiction should begin issuing marriage licenses to same-sex couples.  Schmidt vociferously disagreed, taking the position that Kansas was entitled to its day in court on the constitutionality of its own marriage ban, even though the Kansas ban does not differ in any constitutionally material respect from the bans struck down in Utah and Oklahoma by the 10th Circuit.  Federalism, federalism! cried Schmidt.  The Kansas Supreme Court had responded to Schmidt’s suit by putting a temporary hold on Moriarty’s order.  On November 18, the court issued a somewhat ambiguous decision.  It seems that a federal district court ruled on November 4 that the Kansas ban was unconstitutional, the 10th Circuit had refused to stay that ruling, and the Supreme Court had denied an emergency application by the state for a stay pending appeal to the 10th Circuit.  But the district court’s preliminary injunction in that case specifically named only the clerks in two counties who were named defendants, and Schmidt took the position that no other clerks in the state were bound to issue licenses.  The Kansas Supreme Court’s November 18 decision lifted its temporary stay against Judge Moriarty’s order, but without taking a position on whether the U.S. District Court’s ruling was binding on all Kansas judicial district clerks, while noting of course that a state official, the Secretary of Health and Environment, was also a defendant in the federal case.  By the end of the week there was considerable confusion in Kansas, as many clerks were issuing licenses, others were not, and various state agencies were taking the position that until there was a final appellate resolution of the federal case, they were taking their marching orders from Attorney General Schmidt to deny recognition to same-sex marriages for purposes of state law.  This prompted an announcement by the ACLU that it was considering amending its lawsuit before U.S. District Judge Daniel Crabtree to seek a broader preliminary injunction ordering the state to recognize the marriages.  The Kansas Supreme Court made clear in its November 18 decision that same-sex couples who obtained a valid marriage license from a clerk in the counties that were issuing them could have their marriages performed anywhere in the state — just to muddy the waters further.

Wednesday – November 19.  On this date it was Montana’s turn. . .  Montana was the last state within the jurisdiction of the 9th Circuit that lacked a district court marriage equality ruling, until District Judge Brian Morris issued his Order in Rolando v. Fox, holding that the state’s same-sex marriage ban was unconstitutional, and issuing an injunction to “take effect immediately” requiring the state to allow same-sex couples to marry.  Realizing that filing a stay application would be futile, Attorney General Tim Fox immediately filed a notice of appeal with the 9th Circuit while same-sex marriages commenced in the state.  The 9th Circuit issued a briefing schedule under which an oral argument will not happen before April or later.

Thursday – November 20.  Lambda Legal, representing plaintiffs in the Louisiana marriage case, in which an appeal was already pending before the 5th Circuit with oral argument scheduled to take place in tandem with the state of Texas’s appeal from a decision rendered last spring, filed a cert petition with the Supreme Court, asking that Court to by-pass the 5th Circuit and take Lambda’s appeal from District Judge Feldman’s decision directly.  Lambda pointed out in its petition that there is already a circuit split, so no need to prolong things with arguments in more circuits.   It’s time for the Supreme Court to step in and make a nationally-binding decision.  (The other circuits in which appeals are pending are the 11th [Florida], the 8th [Missouri] and the 1st [Puerto Rico].)  Lambda also pointed out that granting cert in both the Louisiana case and one of the 6th Circuit cases would bring into play an unbroken string of states from the southern to the northern borders of the United States.  Later in the day, the Supreme Court posted its response to South Carolina Attorney General Wilson’s application for a stay.  The Court denied the application, noting that Justices Scalia and Thomas would have granted it.

Neither Scalia nor Thomas amplified their opposition with any written statement, but Thomas had gone on record as disagreeing with the Court’s decision to deny all the pending marriage equality certiorari petitions on October 6 when he filed a dissent from a denial of cert in an unrelated case, arguing that the Court needn’t wait for a circuit split in order to deal with questions of national importance from the lower courts, and citing the marriage petitions as examples of his point.

Also on November 20, the Arkansas Supreme Court heard arguments in the state’s appeal of Judge Chris Piazza’s ruling invalidating the Arkansas same-sex marriage ban from earlier in the year, and given the speed with which things are moving, a decision would be expected shortly.

Thus, as the busy week ended, the count of marriage equality states was continuing to trend upwards towards and beyond 35, even in the wake of the 6th Circuit’s anti-marriage-equality ruling, which seemed to have had little effect on the district courts that issued decisions this week.


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Federal Court Refuses to Dismiss South Dakota Marriage Equality Case

U.S. District Judge Karen E. Schreier denied a motion by South Dakota Governor Dennis Daugaard to dismiss the pending marriage equality case of Rosenbrahn v. Daugaard on November 14.  Although this was not a ruling on the merits of the case, Judge Schreier’s ruling suggests that she will become the second district judge within the jurisdiction of the 8th Circuit Court of Appeals to rule for marriage equality.  Following the lead of District Judge Ortrie Smith in his recent Missouri ruling, Judge Schreier found that the 8th Circuit’s decision rejecting a constitutional challenge to Nebraska’s marriage amendment, Citizens v. Equal Protection v. Bruning, did not stand in the way of entertaining a 14th Amendment challenge to South Dakota’s ban on same-sex marriage.

Before getting to Bruning, however, Judge Schreier had to deal with the state’s argument that the case should be dismissed because of the U.S. Supreme Court’s ruling in 1972 in Baker v. Nelson that same-sex marriage did not present a “substantial federal question.”  The judge expressly rejected the recent ruling by the 6th Circuit that Baker remained a controlling precedent for lower federal courts. After noting Circuit Judge Jeffrey Sutton’s assertion that a summary affirmance like Baker would remain binding precedent unless it was “overruled by name” or “overruled by outcome,” she noted that the Supreme Court has said that such summary dispositions are not “of the same precedential value as would be an opinion of this Court treating the question on the merits,” and commented, “The Sixth Circuit’s reading of the doctrinal developments exception is too narrow and would effectively eliminate that exception by requiring either an explicit or implicit overruling of a prior decision.  Furthermore, it is difficult to reconcile the Supreme Court’s statement in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, with the idea that state laws prohibiting same-sex marriage do not present a substantial federal question.  Thus, the Sixth Circuit’s reasoning is not as persuasive as the reasoning of the Second, Fourth, Seventh, Ninth and Tenth Circuits on this issue.”

Judge Schreier also discounted the state’s argument that the 8th Circuit had “adopted” the Baker decision by mentioning it in Bruning.  Although it was mentioned in that opinion, there was not “any discussion of the continued validity of Baker or the doctrinal development exception,” she wrote.  “Despite defendants’ contention, Bruning does not compel this court to follow Baker.”

Turning to the 8th Circuit’s Bruning decision, she observed that the plaintiffs had framed that case as “an equal protection case based on a fundamental right of access to the political process,” arguing that by adopting the marriage amendment Nebraska had discriminatorily shut out gay couples from resort to the ordinary political process of seeking marriage equality from the legislature.  The 8th Circuit expressly stated that the plaintiffs were not seeking a ruling that same-sex couples had a right under the 14th Amendment to marry in Nebraska.  It did, however, rule that sexual orientation discrimination does not involve a “suspect classification” and thus the amendment would be evaluated using rationality review.

Acknowledging that she was thus bound not to use heightened scrutiny in ruling on the challenge to South Dakota’s marriage ban on a sexual orientation discrimination theory, the judge found that this did not mandating dismissing the case.  For one thing, she found, the Bruning court had not ruled on whether there is a fundamental right to marry from which same-sex couples are excluded.   “Burning is not dispositive of the central issue before this court,” she wrote, so “Bruning does not preclude plaintiffs from relief as a matter of law.”  Furthermore, she found that since Bruning had not pronounced on this fundamental due process question, “Plaintiffs are not consigned to rational basis review and have a plausible claim for relief with respect to their due process argument.”  That would suffice to reject the motion to dismiss.

However, Judge Schreier went further, exploring the plaintiffs’ equal protection claim.  She found that plaintiffs had stated “a plausible equal protection claim based on the alleged deprivation of a fundamental right where plaintiffs allege the classification is not precisely tailored to serve a compelling governmental interest.”  Furthermore, citing 9th Circuit Judge Marsha Berzon’s concurring opinion in the Idaho/Nevada marriage ruling, she found that plaintiffs also had a plausible “gender discrimination” case.   “At this stage — a motion to dismiss — the court finds that the complaint sufficiently states a claim for relief because it plausibly shows a classification related to gender,” she wrote.  “Even though several courts have rejected the argument that same-sex marriage bans discriminate based on gender because the plaintiffs did not present sufficient evidence of invidious gender discrimination to prevail on their claim, the complaint should still survive” a motion to dismiss.  She also pointed out that in light of the developing marriage equality case law, it would be improper to dismiss the plaintiffs’ sexual orientation discrimination claim either, as many courts have found that the states had presented no rational basis for their bans.

She did, however, find that the plaintiffs’ “right to travel” claim, asserted against the state’s refusal to recognize out-of-state same-sex marriages, should be dismissed, because she found it did not fit within the sphere of the constitutional right to travel mapped out in past decisions.  “Although plaintiffs in this case may lose certain benefits when they move to South Dakota,” she wrote, “the fact that they are treated the same as existing residents proves that South Dakota’s marriage laws do not operate as a penalty on the right to travel.  Therefore, plaintiffs have failed to state a claim that is plausible on its face with respect to their right to travel claim.”

The judge ordered the state to respond to plaintiffs’ pending motion for summary judgment by November 24, and plaintiffs would then have up to 14 days to file a reply, after which the court will rule on the pending motion for summary judgment.

Minnesota Attorney Josh Newville represents the plaintiffs, six same-sex couples who either seek to marry in South Dakota or to have their out-of-state marriages recognized.

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Michigan Ban on Benefits for Same-Sex Partners of Government Employees Ruled Unconstitutional

Even though the U.S. Court of Appeals for the 6th Circuit rejected a constitutional challenge to the state’s ban on same-sex marriage just days ago, U.S. District Judge David M. Lawson ruled on November 12 that Michigan’s Public Employee Domestic Partner Benefit Restriction Act, passed in 2011, violates the Equal Protection Clause.  Judge Lawson rested his ruling on the anti-gay animus he found in reviewing the enactment of the measure.

On the one hand, the court’s decision in Bassett v. Snyder could not have been too surprising, since Judge Lawson had previously granted a pre-trial motion to enjoin the operation of the law while the case was pending.  On the other, however, such apparent open defiance of a 6th Circuit ruling by a federal court whose decision is subject to appeal to that court is a bit unusual.

Judge Lawson took pains to distinguish the two cases.  Referring to his earlier order in the case, he wrote, “Since the injunction was issued, there has been a new development.  This district court declared that Michigan’s marriage amendment (which prohibits same-sex marriage) violated the Equal Protection Clause because there was no rational basis for the State to deny the benefits of marriage to same-sex couples.  The Sixth Circuit reversed that decision, hold that states ‘retain authority’ to regulate marriage by classifying who may marry; and if same-sex couples are denied that right, they can find no comfort in the Federal Constitution.”

But, he continued, “this case is not about marriage, as such, although allowing same-sex couples to marry would go a long way toward minimizing the discriminatory sting of the Public Employee Domestic Partner Benefit Restriction Act.  Rather, this case deals with couples who cannot marry under state law and their families.  It is one thing to say that states may cleave to the traditional definition of marriage as a means of encouraging biologically complimentary couples to stay together and raise the offspring they product.  It is quite another to say that a state may adopt a narrow definition of family, and pass laws that penalize those unions and households that do not conform.  The former represents the application of a generous and deferential standard of reviewing legislative classifications, one that permits ‘legislative choices [that] may rest on “rational speculation unsupported by evidence or empirical data.”‘  The latter amounts to a classification based ‘on irrational prejudice,’ which cannot be sustained.  And when that occurs, courts play a vital role in our constitutional system to protect individual rights.”

Judge Lawson recounted how the challenged statute was passed by outspoken legislative opponents of gay rights in response to an earlier decisions by the Michigan Supreme Court holding that governmental agencies were not forbidden to grant benefits to same-sex partners of their employees by the state’s Marriage Amendment, which prohibits same-sex marriage or any other similar recognized union for same-sex couples.  (This is the Amendment that was declared unconstitutional by a different federal judge in the DeBoer case, and then revived recently by the 6th Circuit.)  Anti-gay state legislators were particularly incensed when the state’s Civil Service Commission approved domestic partner benefits for state employees.  Although the legislature refused to overrule the Commission’s decision, individual legislators criticized it as “disgusting,” and political outraged mounted when the Michigan Supreme Court rejected the attorney general’s argument that the Marriage Amendment should be construed to prohibit the Commission’s action.

The title of the challenged law gives away its specific purpose: to deprive same-sex partners of benefits.  The court pointed out the particular harms suffered by the plaintiffs, all of whom were receiving benefits for themselves or their partners that were lost until Judge Lawson issued his preliminary injunction requiring their restoration.

The November 12 decision ruled on motions for summary judgment filed by Governor Snyder and the plaintiffs.  It appears that Judge Lawson waited to rule on the motions until after the 6th Circuit ruled in the marriage case, since a right for same-sex couples to marry would ultimately render this case irrelevant.

In evaluating the plaintiffs’ equal protection arguments, Judge Lawson summarized recent developments under which courts in other circuits had applied heightened scrutiny to claims involving anti-gay discrimination, but noted that in the 6th Circuit he was bound by precedent to apply the deferential rational basis test. However, he noted, there was strong precedent from the Supreme Court to apply heightened scrutiny if a discrimination government action was motivated by animus.  In an extended portion of his opinion, the judge determined that this was such a case.

First he found that the law, “as its title suggests,” was enacted specifically to impose restrictions on same-sex partner benefits, thus imposing a deprivation on a disfavored group.  “One need not look very far to learn that gays and lesbians are a disfavored group,” he wrote.  “In 2012, twelve percent of all reported hate crimes in Michigan targeted gays and lesbians.  Gays and lesbians in Michigan have a 27 percent change of experiencing discrimination in obtaining housing.  The State of Michigan provides no protection against harassment or employment discrimination on the basis of sexual orientation.  And the Michigan Legislature has not repealed its sodomy or gross indecency statutes, despite the Supreme Court’s decision in Lawrence v. Texas nearly twelve years ago.”  Lawson pointed out that even the 6th Circuit, in its anti-gay marriage decision, had conceded that gay people have suffered prejudice in the United States.  Going even further, Lawson quoted 7th Circuit Judge Richard Posner’s statement in that circuit’s marriage equality decision, “Until quite recently,” gays and lesbians “had, as [gays and lesbians], no rights.”

“In light of the reactions to the Michigan Civil Service Commission’s furnishing benefits to the same-sex partners of public employees,” he continued, “it is hard to deny that these attitudes persist today.  And it is equally difficult to ignore the inference that Act 297 emerged from those attitudes.”  Thus, heightened scrutiny should apply in this case, despite the 6th Circuit precedents on sexual orientation discrimination.

Lawson examined three alleged “purposes” for the law argued by the state, and found them all insufficient against the test of heightened scrutiny.  Lawson rejected the government’s argument that the purpose of the law was to “augment laws that maintain family relationships,” finding that this denial of benefits did nothing to strengthen heterosexual families while intentionally harming gay families.  The government claimed that the law “eliminates local government programs that are irrational and unfair to traditional families,” a justification whose “reasoning” the court skewered as “flawed,” pointing out that localities had adopted programs allowing employees to designate co-habitants to receive benefits solely as a workaround to avoid the problems imposed by the Marriage Amendment, and not to try to weaken traditional families.  Lawson found that this argument only made sense if “same-sex domestic partners do not constitute families,” but, he asserted, “They do.”  “That justification can be ‘rational’ only if the State could promote a favored group by imposing a deprivation upon a disfavored ‘other’ one,” but that justification, he found, “runs afoul of the Equal Protection Clause.”  He found that this justification supports a finding of animus.  He also rejected the “cost justification” advanced by the state, pointing out that the state saved little, if anything, by denying the benefits, especially when noting the costs to the state of providing medical care to uninsured people with serious medical conditions who would otherwise be insured under domestic partner benefits programs.  And, he pointed out, the state saves no money by prohibiting local governments and county and city agencies from providing such benefits, which do not come out of the state treasury.  Although he conceded that the state is entitled to adopt policies to save money, “the lack of substance behind this stated justification does little to dispel the ‘suspicion that bigotry rather than legitimate policy is afoot.'”  He also found that the law marked a departure from the state’s usual practice, which is to leave local governments a wide degree of autonomy in establishing their employee benefits policies.  Departures from usual practices, especially when they impose deprivations on targeted groups, are another sign of animus.

Quoting from the 10th  Circuit’s marriage equality ruling — in fact, a concurring opinion by Judge Holmes — Lawson wrote, “Once animus is detected, the inquiry is over; the law is unconstitutional.”  And, summarizing the Supreme Court’s ruling from the Colorado anti-gay amendment case of 1996, Lawson wrote, “A law is irrational if its purpose is to target a disadvantaged group.”  Thus, the outcome of this case is clear.  “Public Act 297 was enacted to deprive the same-sex partners of public employees of health and other fringe benefits offered by local units of government.  The defendant has not identified any other credible justification for the law.  The Supreme Court has explained that ‘the Constitution’s guarantee of equality ‘must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Thus, the court denied the state’s motion for summary judgment, granted the plaintiffs’ motion, and declared that the law violated the 14th Amendment.  Judge Lawson issued an injunction banning the state from enforcing the act.

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Lesbian Co-Parent Has Standing to Enforce Co-Parenting Agreement in Oklahoma

Oklahoma now has same-sex marriage, courtesy of the federal courts, so perhaps the Oklahoma Supreme Court’s historic ruling on November 12 in Eldredge v. Taylor, 2014 OK 92, will have only transient significance, but it is nonetheless noteworthy, if only because of the court’s somewhat unusual ruling that a written co-parenting agreement between cohabiting partners can give a non-biological parent standing to seek a declaration of her parental rights after her relationship with the birth mother has ended.

The parties, Julie Eldredge and Karen Taylor, “committed to and lived together in a family relationship from May 19, 2001, until April 2011,” according to the opinion for the unanimous court by Justice Steven Taylor.  They contracted a civil union in New Zealand in 2005, and had two children together through donor insemination.  Taylor is the biological mother of the children, who were born in Oklahoma in 2007 and 2008.  Following the birth of each child, the women made written co-parenting agreements, which provide that both have parental rights and share parental responsibilities.  “Eldredge played the role of caregiver, assuming responsibility for the children’s care, education and development,” wrote Justice Taylor,” and she “publicly acknowledged the children as hers.  Taylor held out Eldredge as the children’s mother to family members, government personnel, and the children.  Taylor also held out Eldredge’s family as the children’s family.  The children formed a parental relationship with Eldredge and formed an emotional attachment to her and her family.”  Eldredge made a will that “disinherited her family and benefitted the children.”

However, the women separated in 2011, briefly reconciled, but then separated again and went back to New Zealand to dissolve their civil union in 2013.  They continued to share parenting responsibilities, however, and Eldredge paid child support to Taylor, who as the biological mother retained custody of the children.  However, on January 15, 2014, “Taylor removed the children from Eldredge’s care and made plans to remove them from Oklahoma,” so Eldredge went to court, seeking to enforce her rights under the co-parenting agreements.  Most importantly, she wanted a declaration of her parental rights, an award of custody, and an order blocking Taylor from taking the children out of the United States.  Presumably Taylor was planning to take them with her back to New Zealand.

Taylor filed a motion to dismiss the case, arguing that Eldredge lacked standing to seek these remedies because she was not a legal parent of the children.  At the time, of course, Oklahoma banned same-sex marriage and would not accord any legal significance to the parties’ civil union that was in effect when the children were born.  Furthermore, Taylor argued, enforcement of the co-parenting agreement should be barred due to Oklahoma’s public policy against same-sex marriage.  In addition, of course, many courts have held that the judicial doctrine of “best interest of the child” takes priority over any private agreements concerning custody or visitation.

The trial judge granted Taylor’s motion, agreeing that Eldredge lacked standing to bring this case, and Eldredge appealed, winning a unanimous reversal from the Oklahoma Supreme Court.

The court found that there was no express policy of Oklahoma law that would be violated by enforcing the co-parenting agreements, taking into account Eldredge’s concession that she was not seeking to have the agreements preempt a court’s determination whether it was in the best interest of the children for her to have parental rights.

“As the party seeking to void a contract,” wrote Justice Taylor, “Taylor bears the burden of proving that the Agreements violate public policy.  Taylor’s reliance on the Oklahoma Constitution’s ban on same-sex marriage is misplaced.  The United States Court of Appeals for the Tenth Circuit recently struck down as unconstitutional Article 2, Section 35’s ban on same-sex marriage.  When the United States Supreme Court denied the petition for a writ of certiorari, the Tenth Circuit opinion became final and enforceable.  We will not find a statement of public policy within an unconstitutional provision, either statutory or constitutional.”

The court also discounted Taylor’s reliance on the state’s adoption code, finding that Taylor had failed to “point to any place in the Adoption Code which bans adoption by a person of the same gender as a sole biological parent, and we find no such public policy in the Adoption Code.”  The court also found no such public policy in the state’s laws governing parentage and donor insemination.  The court pointed out that recent amendments to the Adoption Code actually allow second-parent adoptions by same-sex partners of biological parents.  Under the circumstances, enforcing the co-parenting agreements would not violate any clear public policy of the state.

“We find only one area where the Agreements’ specific provisions may be void as against public policy,” wrote Justice Taylor.  “That is if they contravene the best interests of the children.  Oklahoma has a strong public policy that custody and care of children should be based on their best interests.  Thus, any scrutiny of the Agreements must be based on whether the provisions are in the best interests of the children.”  However, at the stage of a motion to dismiss on standing grounds, this would not be an issue.

The court rejected Taylor’s argument that this case was governed by the Supreme Court’s 2000 decision, Troxel v. Granville, 530 U.S. 57, which overturned a state law under which grandparents sought visitation rights with their deceased son’s children over the objections of the son’s widow.  In that case, the Supreme Court strongly emphasized the constitutional right of a parent to make decisions about their children’s custody and upbringing.  The state law challenged in that case allowed anybody who might have an interest in the children to seek custody or visitation, and did not require the court to afford any special consideration to the objections of a legal parent.  This case is different, insisted the court, pointing out that the women planned jointly to have and raise these children in the context of their civil union, and Taylor encouraged Eldredge to form a parental bond with them, holding her out as a parent and accepting her support as a parent “even after they separated.”  The court found that “these special factors justify state interference into Taylor’s decision to withdraw all of Eldredge’s contact with the children.”

The court emphasized, however, that in sending the case back to the trial court it was determining only that Eldredge had standing to bring this lawsuit.  The burden will be on Eldredge to show that it is in the best interest of the children for the court to intervene and enforce the co-parenting agreements.  “The unique and compelling facts of this case make it difficult to create a general rule,” wrote Justice Taylor, stating that the decision “is limited to the facts before us and should not be read to extend rights to step-parents, grandparents, or others.”  He concluded, “The public policy of this State mandates that the district court consider the best interests of the children before they lose one of the only two parents they have ever known.  Thus, we find that the district court erred in granting the motion to dismiss.”

Eldredge is represented by Melody Huckaby Rowlett of Oklahoma City.  Taylor is represented by Candee R. Wilson and Cathy C. Barnum of Norman, Oklahoma.

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New York Court Refuses to Apply Parental Presumption for Married Same-Sex Couple

The standard rule in family law is that the legal spouse of a woman who gives birth to a child is presumed to be the child’s legal parent.  Of course, the traditional statement of the rule is that when a married woman gives birth, her husband is presumed to be the child’s father.  The original purpose of this doctrine was to protect the legal status of a child, who would be considered “illegitimate” if its biological parents were not married to each other.  Some states treat that presumption as incontestable, while others, including New York, say that the presumption can be defeated by evidence showing that a different man is the child’s biological father.  A New York court, faced with a paternity proceeding brought by a man who had an affair with a woman who was married to another woman, recently decided that the man had a right to attempt to prove that he is the biological father and seek a paternity order, rejecting the idea that the traditional presumption should play any role in this case.

The facts of Q.M. v. B.C. and J.S., P-13761-13, decided on October 21, 2014, and reported in the New York Law Journal on November 13, are unusual.  Ms. C. and Ms. S. became acquainted when Ms. S was just 16.  They began living together the following year, and were married in Dover, New Hampshire, on November 22, 2010.  Their marriage has not been smooth, however, including several separations, and a divorce proceeding is under way.  During one of their separations, during parts of 2011 and 2012, Ms. C began a relationship with Mr. Q.M..  Wrote Justice Joan Kohout (N.Y. Supreme Court, Monroe County), “Ms. C. admitted that she became pregnant with J.C. as a result of sexual relations with Mr. M. and that she was not sexually involved with any other man at the time she became pregnant.”  That is, Ms. C. admits that Mr. M. is the biological father of her child, who was not conceived through donor insemination.  Indeed, after the child was born, Ms. C allowed Mr. M. two visits, even though their intimate relationship had ended when she got back together with her wife.  However, shortly after these visits, Mr. M. filed this paternity action, and Ms. C. cut off his access to the child.  Mr. M. sought, among other things, genetic testing to confirm that J.C. is his daughter.

Ms. C. was pregnant when she got back together with Ms. S., who was at the hospital when the child was born, “selected the child’s name and signed her birth certificate.  Both Ms. C. and Ms. S. testified that Ms. S. has a close relationship with J.C.,” wrote the judge, “and that since their separation, Ms. C. has permitted Ms. S. to have contact with the child.”  The women have been separated since April 2014, and their divorce action was filed in July.  Nonetheless, Ms. S. desires to be treated as a mother of J.C., and her estranged spouse, B.C., supports her position on this.

“Ms. C. takes the position that Mr. M. should be excluded from J.C.’s life,” wrote the judge.  “Although she has never denied that he is J.C.’s biological father, she argues that her wife is the lawful and proper parent of J.C.  She testified that she wants her ‘wife to have rights to my daughter as she has been.’  Ms. C. acknowledges that Ms. S. never adopted J.C. and that the couple separated in April 2014.”

Ms. C. and Ms. S. want to take advantage of the parental presumption, arguing that there was no need for Ms. S. to adopt J.C. in order to be considered her parent, because the women were married when J.C. was born.  They relied on New York’s Marriage Equality Law, which provides that same-sex and different-sex marriages are to be treated the same for all purposes of law.    Alternatively, they relied on the legal doctrine of “equitable estoppel,” arguing that under these circumstances Q.M. should be barred from asserting parental rights.

Justice Kohout rejected both arguments.

“With the advent of same-sex marriage, the role of the non-biological spouse, especially in a marriage of two women, requires a re-examination of the traditional analysis of the presumption of legitimacy,” wrote the judge.  “Most of the cases to date concerning same-sex couples involve children born of artificial insemination where female spouses have planned together to raise the child.  Recently, in the well-crafted decision of Wendy G-M v. Erin G-M the supreme court held that in the context of a divorce of a same-sex couple, the non-biological wife was the legal parent of a child born of artificial insemination during the marriage.”  The judge pointed out that such cases usually involve an anonymous sperm donor and “there is no legal father,” so “the statute may easily be applied in a gender neutral manner.”

But in this case, she found, such application of the statutory presumption did not make sense because, as a matter of biology, “there is no dispute that Ms. S. is not, and could not possibly be, the second parent of this child.”  Responding to Ms. C.’s argument that the Marriage Equality Act requires the parental presumption rule to be applied in a gender neutral manner, the judge said that “the Marriage Equality Act does not require the court to ignore the obvious biological differences between husbands and wives.”  Referring to the state in question, she wrote that it could be “easily applied to same-sex female married couples, but not to same-sex male couples, neither of whom are able to bear a child.  In the same vein, neither spouse in a same-sex female couple can father a child.  Thus, while the language” of the Marriage Equality Law “requires same-sex married couples to be treated the same as all other married couples, it does not preclude differentiation based on essential biology.”

The judge also noted that New York’s highest court, the Court of Appeals, has “repeatedly declined to expand the traditional definition of a parent beyond biological or birth parents and adoptive parents,” and has “rejected arguments that non-adoptive or non-biological third parties, such as Ms. S., should be grated parental status based on a claim of a close relationship with the child.”  In Justice Kohout’s view, Ms. S. has, at best, the status of a step-parent.  While that might mean, under appropriate circumstances, she would be awarded visitation rights with J.C., she could not seek custody in preference to the child’s biological parents, Q.M. and B.C.  The fact that she was married to B.C. when the child was born “does not change her status.”

Justice Kohout found that the alternative legal theory of equitable estoppel provided no help to the mothers in this case.  Mr. M. has never denied being the biological father of J.C., sought out contact shortly after the child’s birth, and filed a paternity action promptly, seeking to establish his legal ties.  Equitable estoppel might be used, for example, to reject a paternity claim from a man who had agreed to donate sperm under the condition that he would not assert parental rights, but could not be used on these facts to prevent Mr. M. from asserting a paternity claim.

Justice Kohout wrote, “Since Ms. S. never adopted J.C. and is not a biological parent, she does not fit within New York’s definition of parent.  Thus, Ms. S. is not entitled to court ordered custody or visitation with J.C., and any contact she has with J.C. is entirely by voluntary arrangement with Ms. C.  Of course, there is nothing to prevent Ms. C. from continuing to permit Ms. S. to have a relationship with J.C., as suggested by the attorney for the child [appointed by the court], especially if she believes it to be consistent with her daughter’s best interest.”

The problem, however, is that Mr. M. will have the status of a legal parent who can seek court-ordered custody and visitation, as against Ms. S., who will have no such rights.  If Ms. C were to die or become incapacitated from taking care of J.C., Mr. M. would hold all the cards in a dispute with Ms. S. over custody and visitation.  The failure of New York law to allow for the possibility that a child can have more than two legal parents at the same time leaves a gap in the rights of de facto parents such as Ms. S.  Progressive legislation in California now recognizes the possibility of more than two parents in unusual cases.  New York might consider the desirability of legislative reform in light of the legal and social changes accompanying the Marriage Equality Act.  The facts of this case suggest that it would be desirable for Ms. S. to have more secure legal standing than “step-parent” in her relationship with J.C.

B.C. is represented by Yolanda Rios of the Legal Aid Society of Rochester, New York.  J.S. is represented by Marc A. Duclos, Assistant Conflict Defender, assigned because the Legal Aid Society could not represent both mothers simultaneously due to their differing legal interests.  The court appointed Beth A. Ratchford as attorney to represented the child’s interests.  James A. Napier represents Q.M.

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Supreme Court Lets Kansas Marriage Decision Go Into Effect

When U.S. District Judge Daniel D. Crabtree ruled on November 4 in Marie v. Moser, 2014 WL 5598128, 2014 U.S. Dist. LEXIS 157093, that Kansas’s ban on same-sex marriage was unconstitutional, he issues a preliminary injunction directing the defendants not to enforce the ban, but stayed the effect of this Order until 5 pm on November 11 to give the state time to seek a stay from the 10th Circuit or the Supreme Court.  Judge Crabtree had rejected the state’s argument that he should stay his own ruling until such time as the state could get it reviewed on the merits by an appellate court.  The obvious reason for refusing such a stay was that the 10th Circuit Court of Appeals has already ruled in two other cases that state bans on same-sex marriage are unconstitutional, and the Supreme Court refused to review both decisions as well as similar rulings from other circuits.  Thus, any appeal on the merits would most likely be a waste of time, undertaken mainly for the purpose of delaying implementation of the court’s order.

The 10th Circuit turned down the state’s request for a longer stay on November 7.  The Supreme Court, after extending Judge Crabtree’s stay briefly so that the Court could consider the application and the plaintiffs’ Response, denied the state’s request around 5 pm on November 12.  Only Justices Scalia and Thomas indicated that they would have granted the request for a longer stay pending final resolution of the issue by an appellate court, so the vote was 7-2 to deny the stay.  Thus, Judge Crabtree’s opinion goes into effect.

But what does that mean “on the ground” in Kansas?  The named defendants in the case, who are enjoined from enforcing the state’s ban, are Robert Moser, the Secretary of the Kansas Department of Health and Environment, Douglas Hamilton, the Douglas County Clerk, and Bernie Lumbreras, the Sedgwick County Clerk.  Hamilton and Lumbreras were named as defendants because their offices turned down marriage license requests by the plaintiffs.  Moser was named as a defendant because his department is the operative agency of state government in Kansas with responsibility for administering the marriage license and marriage recordation process.  The lawsuit did not name the governor or attorney general as defendants because they do not have any direct operative responsibility with respect to these functions.

However, even after the Supreme Court denied the stay request, some in Kansas are arguing that only the Douglas and Sedgwick County Clerk offices are obliged to issue marriage licenses, on the theory that none of the other clerks were directly enjoined by Judge Crabtree.  Other clerks are saying they will not move on this until ordered by higher authority.  This is silly and obtuse.  But it can be quickly cured.  Judge Crabtree was ruling on a motion for a preliminary injunction.  The ACLU, which represents the plaintiffs, can now move to make the preliminary injunction permanent, and can specifically request that the judge frame his order to bind all Kansas state officials, in compliance with the 10th Circuit’s finding in the Utah and Oklahoma cases that state bans on same-sex marriage violate the fundamental right of same-sex couples to marry.

Another point worth making.  In resisting the court’s order and announcing that Kansas will appeal to the 10th Circuit seeking en banc review, Governor Sam Brownback emphasizes his oath to protect and defend the Constitution of the State of Kansas, which includes a provision banning same-sex marriage.  He conveniently overlooks that his oath of office also requires him to protect and defend the Constitution of the United States, which by its Supremacy Clause overrides the Kansas Constitution where there is any conflict.  Judge Crabtree has applied binding 10th Circuit precedent to find that there is such conflict, and the Supreme Court has refused to stay his decision.  It sounds like the governor’s compliance with his oath — his entire oath, since Kansas is, at least for now, part of the United States — mandates compliance with the court’s order.  Of course, the losing party in a district court proceeding has a right to seek appellate review.  But seeking appellate review from the same judicial body that has twice rejected all the arguments being raised by Kansas in its decisions from other states seems like a delaying tactic more than anything else.

Why seek delay?  Obviously, to try to string things out in the hope that the Supreme Court will eventually affirm the 6th Circuit Court of Appeals’ November 7 ruling holding that state bans on same-sex marriage do not violate the constitution, the first dissenting opinion by a circuit court on this issue since 2006 and contrary to the views of the 4th, 7th, 9th and 10th Circuits, relying in part on the reasoning underlying the Supreme Court’s decisions in U.S. v. Windsor (2013) and Lawrence v. Texas (2003).  If Brownback and Company can string things out that long, they would never have to allow same-sex marriage in Kansas.  But actions taken primarily for purposes of delay are certainly disfavored in American law.

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First Marriage Equality Ruling in from South Carolina

There are two federal district court challenges pending in South Carolina.  The earlier-filed one, Bradacs v. Haley, sought recognition for a same-sex couple’s marriage contracted in the District of Columbia.  It was filed by two local attorneys in Columbia, South Carolina. In a November 10 order in that case, District Judge J. Michelle Childs granted a motion to dismiss Governor Nikki Haley as a defendant in the case, finding that she played no direct role in the enforcement of the state’s ban on the recognition of same-sex marriages performed elsewhere, and also ruled that the plaintiffs did not have standing to attack head-on the state’s refusal to allow same-sex couples to marry.  She indicated that she would proceed to rule later on the plaintiff’s challenge to the state’s refusal to recognize their marriage, in which the state’s Attorney General, Alan Wilson, is the remaining defendant.

The later-filed case, Condon v. Haley, grew out of events last month.  After the Supreme Court refused to review the 4th Circuit’s ruling in Bostic v. Schaefer, holding that Virginia’s ban on same-sex marriage violates the 14th Amendment, the local Probate Judge in Charleston County, South Carolina, Irvin Condon, finding that this ruling is binding in South Carolina which is within the 4th Circuit, issued a marriage license to Colleen Therese Condon and Ann Nichols Bleckley.  There is a mandatory 24-hour waiting period in South Carolina between issuance of a license and performance of a marriage ceremony.  During that brief period, South Carolina’s Attorney General, Alan Wilson, ran to the state Supreme Court and sought an order blocking Probate Judge Condon from performing the ceremony.  The Supreme Court said that no same-sex marriages could be performed until the lawsuit pending before Judge Childs in federal court was finally resolved.

Thus thwarted in their marriage plans, Condon and Bleckley filed suit in the federal district court against Governor Haley, Attorney General Wilson, and Probate Judge Condon, seeking an order allowing them to marry.  The case was filed in their behalf by the Atlanta office of Lambda Legal working with cooperating attorneys from South Carolina: Malissa Burnette, Nekki Shutt, and Victoria Eslinger.  The matter was assigned to District Judge Richard Mark Gergel.  Shortly after filing the complaint, Lambda Legal moved the court for summary judgment and immediate injunctive relief.  Governor Haley filed a motion to dismiss as to her, and Attorney General Wilson moved to dismiss the case as failing to state a valid legal claim, arguing that the court was bound to dismiss the case because of the U.S. Supreme Court’s 1972 ruling in Baker v. Nelson that same-sex marriage did not present a “substantial federal question,” an argument that had been rejected by the 4th Circuit in the Virginia case.  Wilson also argued that the federal court should abstain deciding this case until Judge Childs ruled on the summary judgment motion in the Bradacs case, as the South Carolina Supreme Court had ordered that no same-sex marriages take place until the pending federal challenge was finally decided.

Rejecting all the defense’s jurisdictional and substantive arguments, Judge Gergel ruled on November 12 that the plaintiffs are entitled to the declaratory and injunctive relief that they are seeking.  He found that the pending cases in the South Carolina Supreme Court and before District Judge Childs posed no impediment to his ruling on the merits of this case.  He agreed with Judge Childs that Governor Haley should be dismissed as a defendant.  But he pointed out that the issues pending before Judge Childs and before him were different, as she had ruled just days before that the Bradacs plaintiffs had standing only to seek a ruling on recognition of their out-of-state marriage.

Gergel rejected Attorney General Wilson’s argument that he could ignore the 4th Circuit’s ruling in Bostic or reject it if he disagreed with it.  “This Court has carefully reviewed the language of South Carolina’s constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic,” he wrote.

“While a party is certainly free to argue against precedent, even very recent precedent,” he continued, “the Fourth Circuit has exhaustively addressed the issues raised by Defendants and firmly and unambiguously recognized a fundamental right of same sex couples to marry and the power of the federal courts to address and vindicate that right.  Regardless of the passion of Bostic’s opponents, the predictability and stability of our judicial decisionmaking  is dependent upon lower courts respecting and enforcing the decisions of higher appellate courts.  Not every decision is heard and decided by the United States Supreme Court (in fact very few are), and lower federal courts are not free to disregard clear holdings of the circuit courts of appeals simply because a party believes them poorly reasoned or inappropriately attentive to alternative legal arguments.  Coherent and consistent adjudication requires respect for the principle of stare decisis and the basic rule that the decision of a federal circuit court of appeals left undisturbed by United States Supreme Court review is controlling on the lower courts within the circuit.  This principle, along with the foundational rule that the United States Constitution is the supreme law of the land and state laws that run contrary to constitutionally protected rights of individuals cannot be allowed to stand, are among the body of doctrines that make up what we commonly refer to as the rule of law.”

Judge Gergel point out that since October 6, all of the other states in the 4th Circuit had fallen in line with the Bostic ruling (apart from Maryland, which had legislated and then voted in favor of same-sex marriage earlier), leaving South Carolina the last holdout.  This ruling, if upheld on appeal, will complete the “sweep” in the 4th Circuit.

Wilson had asked that Judge Gergel stay his ruling in case he decided to rule in favor of the plaintiffs.  Gergel rejected the idea that he should grant a stay pending the state’s appeal on the merits to the 4th Circuit, in light of that court’s prior ruling striking down Virginia’s marriage ban.  But, following the example set a week earlier by District Judge Crabtree in Kansas, he granted a temporary stay to give the state an opportunity to seek a stay pending appeal directly from the 4th Circuit or, failing that, from the Supreme Court.  Judge Gergel’s temporary stay will dissolve at noon on November 20 unless it is extended by the 4th Circuit or the Supreme Court.  The fate of Attorney General Wilson’s attempt to delay same-sex marriages in South Carolina likely turns on whether the Supreme Court grants a stay pending appeal in Kansas, since the issues are virtually identical, as Kansas has been denied a stay by the 10th Circuit, whose marriage equality decisions were denied review by the Supreme Court.

Judge Gergel was appointed to the bench by President Barack Obama and took his seat in August 2010.  He had previously been a personal injury litigator in private practice after graduating from Duke Law School, and his appointment had been endorsed by South Carolina’s U.S. Senator Lindsey Graham, a Republican.

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Federal Courts in Missouri and West Virginia Issue Marriage Equality Rulings

On November 7, one day after the 6th Circuit Court of Appeals rejected marriage equality claims from Ohio, Michigan, Tennessee and Kentucky, federal district courts in Missouri and West Virginia issued new marriage equality rulings.  Chief U.S. District Judge Robert C. Chambers of the Southern District of West Virginia granted summary judgment to the plaintiffs in McGee v. Cole, a case brought by Lambda Legal and The Tinney Law Firm.  Senior U.S. District Judge Ortrie D. Smith of the Western District of Missouri granted summary judgment to the plaintiffs in Lawson v. Kelly, a case brought by the ACLU of Missouri Foundation.  Missouri will appeal.  West Virginia was already granting marriage licenses to same-sex couples, in compliance with the 4th Circuit’s ruling that the Supreme Court declined to review on October 6.  Thus, the West Virginia ruling could be seen as a formality, part of the “mopping up” process in the 4th Circuit.  But the Missouri decision staked out important new ground in the 8th Circuit.

Judge Chambers was appointed to the court by President Bill Clinton in 1997.  Judge Smith was appointed by President Clinton in 1995, and has been serving as a senior judge since 2011.

The most notable aspect of Judge Chambers’ ruling in West Virginia was the pointed rebuttal to 6th Circuit Judge Jeffrey Sutton’s opinion issued the previous day.  Sutton had argued that the decision whether same-sex couples can marry should be left up to the political process in each state, and not dictated by federal judges, a “wait and see” approach.  Countered Chambers, after noting that the 6th Circuit had “reached the opposite result” from the other circuit courts, “The majority there noted two rationales in support of the marriage bans.  First, the court found the marriage bans in Kentucky, Michigan, Ohio, and Tennessee to be rooted in the States’ interest in regulating procreation by providing incentives for parents to remain together.  But the opinion then conceded that this view of marriage can no longer be sustained, that marriage now serves ‘another value — to solemnize relationships characterized by love, affection, and commitment.’  Denying marital status and its benefits to a couple that cannot procreate does nothing to further the original interest of regulating procreation and irrationally excludes the couple from the latter purpose of marriage.  Second, the majority [in the 6th Circuit] implores opponents of the marriage bans to proceed slowly, through the legislative process, and justifies the bans by asserting the States’ right to take a ‘wait and see’ approach.  This approach, however, fails to recognize the role of courts in the democratic process.  It is the duty of the judiciary to examine government action through the lens of the Constitution’s protection of individual freedom.  Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states.  Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators.”

Take that, Judge Sutton!

Judge Smith’s decision is particularly significant because the 8th Circuit issued a decision in 2006, Citizens for Equal Protection v. Bruning, rejecting a constitutional challenge to Nebraska’s constitutional amendment banning same-sex marriage.  Ordinarily, one might easily assume that a trial judge within the 8th Circuit would be precluded from ruling in favor of the plaintiffs in a marriage equality case because of controlling circuit precedent.  A contrary argument could assert that Bruning is no longer a binding precedent in light of U.S. v. Windsor, but Judge Smith did not take that route.  Instead, he examined the issues at stake and decided in the Bruning case, and concluded that it did not control the issue before him.

In Bruning, some Nebraska citizens challenged the enactment of the state’s marriage amendment using an argument that had been accepted by the Colorado Supreme Court more than a decade earlier when it ruled against the constitutionality of that state’s Amendment 2, which prohibited the state from protecting gay people from discrimination.  The plaintiffs in Bruning argued that the amendment unconstitutionally deprived them of equal access to the political process by locking a different-sex definition of marriage into the state constitution, thus requiring them to achieve repeal of the amendment before they could approach the legislature to obtain same-sex marriage through the ordinary legislative process.  The 8th Circuit rejected their claim, and pointed out that the plaintiffs had not asserted a federal constitutional right to marry in their challenge to the Nebraska amendment, so the court was not deciding whether same-sex couples had a constitutional right to marry, although it did express its view that the marriage amendment would survive rational basis review.

Thus, the district court in the November 7 ruling was writing on a partially clean slate, having also concluded that it was not bound by the Supreme Court’s 1972 summary disposition in Baker v. Nelson.  While not mentioned the 6th Circuit ruling to the contrary the previous day, Judge Smith rejected its reasoning on this point. “This Court concludes doctrinal developments indicate the Supreme Court’s summary ruling is not reliable or binding,” he wrote, listing various subsequent Supreme Court cases on the right to marry and on gay rights.  “As the Second Circuit observed in Windsor, ‘when Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect.’  Given that the Second Circuit concluded Baker was not binding, and that the Second Circuit was later affirmed in Windsor, ‘the Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law,'” he concluded, quoting from the 4th Circuit’s opinion in the Virginia marriage case, Bostic v. Schaefer.

Turning to the merits, he found that the Missouri marriage ban violates the fundamental right to marry.  The court was helped in this case because Missouri’s attorney general, Chris Koster, who is not an ardent defender of the ban, had decided to abandon the ridiculous arguments that have been rejected by dozens of federal trial and appellate judges over the past year, and had fallen back on the lame argument that the ban is “rationally related” to the state’s interest “in promoting consistency, uniformity and predictability.”  Judge Smith characterized this as a “circular argument” under which any regulation adopted by the state would be deemed rational, no matter how outlandish.  As he pointed out, “a rule restricting marriage to those with one-syllable names promotes consistency, uniformity and predictability.  A rule restricting marriage to people within a specified age difference promotes consistency, uniformity and predictability.  Neither of these rules would be constitutional — the state’s ability to interfere with the personal decision as to who can and cannot get married is not so far-reaching.  Merely prescribing a ‘followable’ rule does not demonstrate the rule’s constitutionality.”

Thus, Smith concluded, there was “no real reason for the State’s decision to dictate that people of the same gender cannot be married.”  Since he had found that the ban violates a fundamental right, the lack of any real justification was fatal for the ban.  He also found that the ban creates a “classification based on gender,” and any such classification requires heightened scrutiny, a test that the state could not meet.  In a tiny victory for the state, Smith acknowledged that sexual orientation discrimination claims only merit rational basis review, and that in Bruning, the 8th Circuit court “had clearly expressed its belief that laws prohibiting same-sex marriage would pass rational basis review.”  On that basis, said Smith, he would grant summary judgment to the state on the plaintiff’s sexual orientation discrimination claim.  No matter, however, since plaintiffs won on the other two claims.

However, due to a particular oddity of the case, Judge Smith felt constrained to offer only limited relief, in the form of an order that the Jackson County Recorder, Robert T. Kelly, as the only named defendant, would be the only state official directed to issue marriage licenses.  This seemed peculiar, since the case was originally filed in state court and then the state intervened as a defendant and removed it to federal court.  One would think that with the state as an intervenor defendant, Smith could make his order binding on all state officials.  He did point out that he was also providing declaratory relief, which would presumably have some binding effect, specially if his decision is affirmed by the 8th Circuit, to which the state had indicated it would be appealing.

However, Attorney General Koster released a statement indicating that he would not be seeking a stay of Judge Smith’s decision, which was consistent with Koster’s reaction to recent state court rulings both mandating recognition of out-of-state same-sex marriages and requiring that certain county clerks issue marriage licenses.  Missouri is, at this point, close to being a marriage equality state de facto, if not de jure, although the court’s direct relief is limited to Jackson County.  As the first in the door, however, Missouri may end up being the lead state in defending its marriage ban before the 8th Circuit Court of Appeals, if a U.S. Supreme Court ruling does not come first.


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6th Circuit Opens Up Circuit Split on Marriage Equality

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit voted 2-1 to reverse marriage equality decisions from Michigan, Ohio, Kentucky and Tennessee on November 6, creating a split of circuit authority that appeared calculated to provoke Supreme Court review just one month after the High Court had turned down petitions from five states in three circuits, effectively allowing marriage equality decisions to take effect in those states.  The opinion for the majority in DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191, 2014 Westlaw 5748990, by Circuit Judge Jeffrey Sutton framed the issue as “who should decide” whether same-sex couples have a right to marry, judges or the voters (either directly through referenda or indirectly through their elected legislators)?  He concluded that this was a policy decision best made through “democracy” rather than adjudication, thus parting company from his colleagues in the 4th, 7th, 9th and 10th Circuits.

Although Sutton’s decision was long — 35 pages in the court’s slip opinion — much of it could be characterized as merely “dicta” — unnecessary ruminations — because at the outset he asserted that the court was bound by the Supreme Court’s ruling in Baker v. Nelson, 409 U.S. 810 (1972), an appeal from a Minnesota Supreme Court decision denying a gay couple’s marriage claim for lack of a “substantial federal question.” In those days, the Supreme Court was obliged by federal statutes to issue a ruling on the merits in any appeal from a state court decision concerning the constitutionality of a statute.  Because of the sheer volume of such cases, the Court frequently summarily affirmed the lower court without holding oral arguments or receiving full briefing from the parties, stating that the case did not present a “substantial federal question.”  Under the circumstances, such rulings are considered binding precedents on lower courts as to their judgments, but lacking a written opinion from the Court, the grounds of the decision are open to speculation.

“It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future.  Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions ‘until such time as the Court informs us that we are not,'” wrote Sutton, referring to a later Supreme Court ruling explaining the precedential status of such summary dispositions, Hicks v. Miranda, 422 U.S. 332 (1975).  This was a selective quotation from Hicks, however, as each of the other circuit courts has found a basis in other statements in Hicks and later Supreme Court opinions suggesting that if later Supreme Court rulings make it clear that the earlier case would now present a substantial federal question, the old summary affirmance is no longer binding.

Sutton explained why he concluded that the 2013 DOMA ruling, U.S. v. Windsor, 133 S. Ct. 2675 (2013), did not overrule Baker v. Nelson.  Justice Anthony Kennedy’s opinion for the Court did not mention Baker, and expressly disclaimed ruling on whether same-sex couples are entitled to marry.  Although Justice Kennedy wrote that the basis for the Court’s ruling was the 5th Amendment’s Due Process and Equal Protection requirements, expressly disclaiming reliance on federalism to reach its result, Chief Justice John Roberts’ dissenting opinion characterized the case as being about “federalism” — the division of authority between state and federal governments — and Sutton reiterated that contention, arguing that the Windsor ruling leaves Baker v. Nelson untouched because it says nothing directly about whether same-sex couples are entitled under the 14th Amendment to marry.

If that is the case, then there was no reason for Sutton to keep writing.  He could have ended his opinion right there, without addressing the due process and equal protection arguments made by the plaintiffs in these cases, but he plunged ahead, rejecting the analyses of all the prior circuit court decisions as well as dozens of district court opinions (including the six opinions being reviewed in this case).  “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States,” he insisted, and went on to adopt the theory presented by the states that marriage as an institution was created to channel the procreative activities of heterosexual couples into a stable institution for raising their children.  While he conceded that views of marriage have evolved, and that there could be strong policy arguments for extending the right to marry to same-sex couples today, he said that this “does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.”  This is, of course, in line with his general philosophy concerning the respective role of legislatures and courts in making public policy decisions, and it channels the arguments made by Justice Samuel Alito in his dissenting opinion in U.S. v. Windsor.

Understanding Sutton’s opinion requires understanding his judicial philosophy.  Sutton was appointed to the 6th Circuit by George W. Bush.  He was among Bush’s earliest appointments, and his very conservative reputation, earned from his law review articles and his service as Ohio State Solicitor, caused a substantial delay in his confirmation.  The Democrats briefly controlled the Senate at the beginning of Bush’s first term, and they refused to vote on the Sutton nomination.  After Republicans gained a majority in the Senate, Bush re-nominated Sutton and he was finally confirmed two years after his initial nomination.  After graduation from law school at Ohio State, Sutton had clerked at the Supreme Court for Justices Antonin Scalia and Lewis Powell.  His views on judging seem to be closely in sync with Scalia’s articulated positions.

Sutton lines up with those who say that constitutional provisions should be held to mean what their framers intended them to mean, based upon what they would have been taken to mean by the public at the time they were ratified.  Viewed from this perspective, the 14th Amendment, adopted in 1868, was intended to assure that the recently freed black slaves would be accorded the same legal status by the states as all other citizens.   Also viewed from this perspective, the function of the due process clause was to guarantee procedural fairness in administering the laws.  Adherents to this view of constitutional interpretation generally dispute the theory of “substantive due process” under which courts invalidate laws as impairing fundamental rights without sufficient justification.  They also long argued that the equal protection clause was intended solely to ban race discrimination, given the context of its adoption.  Even Justice Scalia seems to have backed away from this extreme view of the limits of equal protection, now describing himself as an “imperfect” originalist, but he has referred from time to time to the “discredited” theory of “substantive due process.”

At the same time, Sutton also proclaims, as does Scalia, that courts must be very deferential to the legislatures and the voters in matters of deciding public policy, that they must accord a strong presumption of constitutionality to policies made through the democratic process, and that they should only strike down state constitutional provisions and statutes in extreme cases where they directly contradict express constitutional provisions.  Such judges are fond of pointing out that the constitution does not mention marriage, and they consider the argument that there is a constitutionally protected fundamental right to marry as illegitimate.

Together with this, as Sutton points out, prior decisions by the 6th Circuit have rejected the contention that sexual orientation is a “suspect classification” or that laws discriminating against gay people are subject to heightened or strict scrutiny, so this 6th Circuit panel was bound in his view to uphold the state marriage bans if any rational basis for them could be hypothesized.

Given this background of judicial philosophy and 6th Circuit precedent, together with his rejection of the argument that U.S. v. Windsor had any direct application to this case, his conclusion that the marriage bans are constitutional was not very surprising.  Indeed, anybody listening to the oral argument held by the court exactly three months earlier would have to conclude that Sutton was very skeptical about the argument that the bans were unconstitutional.  This result from the 6th Circuit was widely anticipated, even by Supreme Court Justice Ruth Bader Ginsburg, whose public remarks before the start of the Supreme Court’s term sent a clear signal that the Court felt no rush to take a same-sex marriage case, but that this could be changed by the decision that was forthcoming from the 6th Circuit.

Dissenting Judge Martha Craig Daughtrey, a senior judge who was appointed to the 6th Circuit by Bill Clinton early in his first term, chided Sutton at the outset of her opinion.  “The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” she wrote.  “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.  Instead, the majority sets up a false premise — that the question before us is ‘who should decide?” — and leads us through a largely irrelevant discourse on democracy and federalism.  In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.  Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for ‘proceeding with caution’ (otherwise known as the ‘wait and see’ approach), I dissent.”

Daughtrey’s dissent incorporated parts of the other circuit court decisions, with particular emphasis on Judge Richard Posner’s opinion for the 7th Circuit and Judge Marsha Berzon’s concurring opinion in the 9th Circuit, rejecting the continuing precedential salience of Baker v. Nelson (which she describes as a “prime candidate” for being treated as a “dead letter”) and finding the states’ justifications for their marriage bans unavailing even under the least demanding rational basis scrutiny.  Thus, prior 6th Circuit cases commanding that rational basis review apply in sexual orientation cases presented no barrier to her conclusion, because she found that the state arguments failed to meet the rational basis test.

Clearly, this decision by the 6th Circuit panel is merely a way-station on the route to a final constitutional determination in a higher tribunal, and Sutton’s opinion at times reflects his understanding that his view is out of step with the trend of federal decisions and may well fall to Supreme Court review.  Daughtrey suggested a possible ulterior motive on the part of the majority.  After reviewing the trial record in the Michigan case and the reasoning of the opinions from the other circuits, she wrote, “These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages.  Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us.  Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and put an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”

Lawyers for the plaintiffs in the six cases conferred by telephone conference on November 7 about the strategy going forward.  Since ten out of the fifteen active judges on the 6th Circuit were appointed by Republican presidents, including a large number by George W. Bush, with only two appointees by Barack Obama and three by Bill Clinton, a motion for rehearing en banc seemed a pointless, time-wasting gesture, so the most likely path forward would be the filing of six petitions for certiorari with the U.S. Supreme Court at the earliest possible date, and the attorneys quickly reached a consensus on this point.  None of them would be filing motions for rehearing en banc.  Judging by how things have played out in recent Supreme Court terms, it appeared possible that if such petitions were filed promptly, one or more of these cases could end up on the Supreme Court’s active docket for decision during the current term, which ends in June 2015.  The best candidate for such review would probably by the Michigan decision, the only one decided after a trial affording a full factual record as opposed to the other cases that were decided on motions for summary judgment.


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October Was a Monster Month for Marriage Equality in the United States

In preparing to record the November issue of the Lesbian/Gay Law Notes podcast today, I put together a chronology of marriage equality legal developments during October as a reference source, and decided to post it here.  Any additions or corrections are welcome.  I didn’t include every little motion filing, but tried to hit the most significant things.  Of course, the main event was the Supreme Court’s denial of cert in all the pending marriage cases from three circuits on October 6, followed by the 9th Circuit’s ruling in October 7.  Most of the subsequent news involved follow-up in those states in the affected circuits where cases were pending at the trial court – lots of summary judgment motions were decided in October, putting governors and attorney generals to the task of deciding whether to comply, whether to eschew appeals, etc.  There was also some activity in other states where there are no circuit rulings yet.

Here’s my chronology for October 2014:

Oct. 3 – Missouri (8th Cir.) – State Circuit Judge J. Dale Youngs (Jackson County) rules state must recognized out of state same-sex marriages, and state says it won’t appeal. Right to marry cases still pending at the end of the month.  [Note – marriage equality ruling from Circuit Court on Nov. 5 – state will appeal]

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 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, 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 Dist 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 certifies it will not appeal and stay is lifted, #32

Oct. 21 – Puerto Rico (1st Circuit) – Dist. Judge Juan M. Perez-Gimenez dismissed 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 – 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 govt 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.

Oct. 31 – Federal District Judge Daniel Crabtee in Kansas City, Kansas, hears argument on preliminary injunction motion in ACLU’s newly-filed case, Marie v. Moser. (Injunction granted on Nov. 4, stayed until Nov. 11 unless state certifies it will not appeal, but state will appeal.)


(Note – By early November, new right to marry decisions emanated from trial courts in Kansas and Missouri; still waiting on 11th Circuit to schedule argument in Florida case and 1st Circuit to schedule argument in Puerto Rico case.  Still waiting for a district court ruling in the 8th Circuit that can be appealed to that court.)

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