New York Law School

Art Leonard Observations

Another State Heard From on Marriage Equality – Indiana

Marriage Equality advocates in Indiana were very strategic in their litigation, holding off filing cases until after the legislature had adjourned, after kicking the question of a constitutional amendment against same-sex marriage down the road another two years by passing a version of the proposed amendment that differed from that approved in the last session. A bunch of new cases were filed earlier this year, and they have been consolidated before U.S. District Judge Richard L. Young in Indianapolis (S.D. Ind.), under the collective title of Baskin v. Bogan.

Things were proceeding as they do in these cases when suddenly an urgent need for a quick ruling arose. Niki Quasney and Amy Sandler, one of the plaintiff couples, formed an Illinois civil union in 2011 and married in Massachusetts in 2013. They have been together many years and are raising two young children together. Niki has been battling ovarian cancer since May 2009, going back and forth between active cancer and remission after treatments. On April 9, the cancer recurred from the most recent remission, and the prognosis was questionable. Plaintiffs’ counsel filed an emergency motion for a temporary restraining order, seeking to get recognition for the Quasney-Sandler marriage specifically to ensure that if Niki dies before the court can rule on the merits in this case, the state will be required to recognize Niki and Amy as married on Niki’s death certificate.

Judge Young proved receptive to this request, ruling from the bench at the end of a hearing on April 10 to issue the TRO, to last until May 8, by which time the court will hold a hearing on a motion for preliminary injunction. On April 18, Judge Young issued a written opinion explaining his ruling, 2014 U.S. Dist. LEXIS 54036.

Young quickly rejected the state’s argument that plaintiffs could not seek a TRO because they had not yet suffered any Article III harm that could be remedied by a restraining order, pointing out thatdig nitary harm could be sufficient where a constitutional right was at stake. Furthermore, there were already tangible harms experienced by the plaintiffs. “The Plaintiffs here have shown cognizable injuries that a TRO can remedy,” wrote Judge Young, “because Niki drives across state lines to receive treatment from a hospital that will recognize her marriage, Niki and Amy have been denied a family fitness membership, and they suffer anxiety, sadness, and stress about the non-recognition of their marriage and what that means if and when Niki succumbs to her disease.”

Referring to the “dignity” of marriage that was at the heart of the Supreme Court’s decision last year in U.S. v. Windsor, Young wrote that “the deprivation of the dignity of a state-sanctioned marriage is a cognizable injury under Article III.”

As to the criteria for a temporary restraining order, Young was governed by 7th Circuit precedents, requiring him to find that the plaintiffs’ chance of success on the merits is “more than negligible.” He found this easily satisfied by reference to “the wave of recent cases finding that similar state statutes and state constitutional amendments violate the Equal Protection Clause and the Due Process Clause.” He found “particularly persuasive” two recent rulings from Ohio and Illinois involving couples where one member was suffering a fatal illness.

Turning to the state’s arguments, he rejected Indiana’s contention that all of these courts have misconstrued Windsor by imposing a federal constitutional analysis on the policy question of who can marry. Noting the Supreme Court’s citation of Loving v. Virginia, the 1967 Supreme Court decision striking down Virginia’s ban on interracial marriages, he wrote, “The Equal Protection Clause requires states to treat people equally under the law; if the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose.”

As to purpose, he rejected out of hand Indiana’s argument that the state’s concern in “ameliorating the consequences of unintended children” would serve to justify excluding same-sex couples from marrying. “This philosophy of marriage,” he wrote, “does not distinguish Indiana from the wave of recent cases finding similar statutes to be unconstitutional. Furthermore, he wrote, “The court finds that this cannot be the entire rationale underlying the traditional marriage. Additionally, this philosophy is problematic in that the state of Indiana generally recognizes marriages of individuals who cannot procreate. For example, Indiana recognizes the marriages of opposite-sex couples that occurred in Florida that are well past their procreative years. This philosophy does not apply to them, so under the state’s philosophy, their marriage should not be recognized here. Further, before recognizing an out-of-state marriage on a death certificate, the state of Indiana does not inquire whether the couple had the ability to procreate unintentionally.”

Foreshadowing his likely ruling on the merits when the court decides on summary judgment down the line, Young wrote, “the court finds there will likely be insufficient evidence of a legitimate state interest to justify the singling out of same-sex marriage couples for non-recognition. The court thus finds that Plaintiffs have at least some likelihood of sucess on the merits because the ‘principal effect’ of Indiana’s statute ‘is to identify a subset of state-sanctioned marriages and make them unequal.’” The quoted words are from the Supreme Court’s opinion in Windsor.

Young also found that the restraining order was necessary because after-the-fact damages or alternative contractual arrangements would be insufficient to provide an adequate remedy for the harms the plaintiffs would suffer if their marriage is not recognized in the current circumstances. Indeed, they would suffer irreparable harm if the TRO is denied and Niki dies before the court can rule on the merits, and, wrote Young, “as this court and others have previously held, the state experiences no harm when it is prevented from enforcing an unconstitutional statue.” Thus, the court was willing to grant a temporary restraining order that would extend until the next hearing in this case.

Of course, this is narrow relief, focused only on the Quasney-Sandler marriage. “Should Ms. Quasney pass away in Indiana,” wrote Young, “the court orders Willian C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acting in concert, to issue a death certificate that records her marital status as ‘married’ and lists Plaintiff Amy Sandler as the ‘surviving spouse’.”

Despite the narrowness of this relief, limited to one couple, Young’s opinion communicates the likelihood that he will be ruling for the plaintiffs on the merits before very long, making Indiana the first state within the 7th Circuit to generate a ruling on marriage equality likely to go to the circuit court of appeals.

Plaintiffs in this case are represented by Barbara J. Baird, an Indianapolis attorney, pro bono attorneys from the Chicago office of Kirkland & Ellis, and attorneys from the Chicago and Dallas offices of Lambda Legal. The defendants include several county clerks, the state Health Commissioner, and the state Attorney General, all sued in their official capacities.

Judge Young was appointed to the court by President Bill Clinton, and is the Chief Judge of the Southern District of Indiana.

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“Noah” – The Film (Caution: Plot Spoilers)

It may seem strange to mention “plot spoilers” in connection with a cinematic presentation of one of the most famous old stories from the Book of Genesis, but anybody whose familiarity with the story of Noah derives solely from that source is going to encounter some surprises in this film. One could be outraged, especially if one believes that “The Bible” is presented as a literal source of history of Divine Inspiration with which one must not tamper.

But if one takes The Bible as the epic mythology of an ancient people, then I say “all’s fair” in trying to make a dramatic movie with some suspense to engage the rapt attention of the audience. So the departures from Biblical text served to enhance the drama. Everybody knows how the story of Noah turns out in the end, of course, and the filmmaker wasn’t about to change that, but keeping an audience engaged through a two+ hour movie requires some more plot complications than are provided by the simplistic Biblical text.

In Genesis, Noah, his unnamed wife, his three sons and their wives are cooped up in the Ark through the period of the great flood. In this movie, none of the sons are married when the flood arrives, although the oldest, Shem, is hot for the family’s adopted daughter, who is around his age but believed by them all to be barren. As they are adrift upon the rising waters, Noah sits down his family around the dinner fire and tells them that they are destined to be the last humans, as G-d has decreed that all humanity must be eliminated as a failed experiment. Since their little band includes only Noah and his wife, who (at age 600 according to the Biblical text) were not expecting to produce any more children, and three sons with a barren step-daughter in tow, no more children will be produced and when the youngest son, Japheth, dies, that will be the end of the human race. What they weren’t counting on, however, in this verion of the tale, is that the daughter has been blessed shortly before the deluge by Noah’s grandfather, Methuselah, and is no longer barren. Indeed, her furious coupling with Shem in the forest shortly before the deluge has gotten her pregnant. When Noah hears this news, he is outraged, since it is a violation of G-d’s plan as he understands it. This Noah is a fanatic who is single-mindedly dedicating to carrying out G-d’s plan. If the young woman bears a girl, he says, he will have to kill it fresh from the womb to avoid the possibility of another generation of humans being produced.

There is another complication. Ham, the second son, deprived of female companionship but horny as any young man could be, has ventured into the corrupt world and found a new girlfriend, but in the rush to get to the Ark as the rains begin, she is trampled underfoot when Noah refuses to release her from a trap set by the descendants of Cain (who are depicted in this film as the corruptors of the earth). The resentful Ham is back in the ark, skulking about through disaffection from his father, and discovers that Tubal-Cain, the king of the corrupters, has managed to stow away in the ark. They conspire together for revenge against Noah… another source of suspense. But you know how this has to turn out. Tubal-Cain must die, and Ham must survive in order to incur Noah’s curse in the post-Ark incident that leads to the descendants of Ham’s son – Canaan – becoming a different people from the descendants of Shem and Japheth. (And, of course, Shem’s woman has to bear a girl — twins in this account — so that the earth can be repopulated after the Flood. But, a loose plot-element, after being cursed by his father (and not explicitly so in this account), Ham wanders away feeling that he doesn’t “belong” with the family, and one wonders who he is going to produce descendants if he’s not going to be around to couple with one of his half-nieces, since all the other women in the world were wiped out in the Flood…. ??

Anyway, there is lots of tampering with the Biblical text here, but the resulting movie stands up pretty well on its own. Russell Crowe is properly obsessive as the stubborn and fearful Noah, and Jennifer Conley is fantastically good as his wife – there is at least one scene, where she pleads with him to abandon his plan to kill any girl born to their step-daughter – that is definitely Oscar-worthy in its intensity. Anthony Hopkins is quite entertaining as old Methuselah, and the young actors who play Noah’s sons and step-daughter are all quite fine. The piece is a bit overrun with special effects, and the decision to make the “giants” – Nephtilim – who receive passing mention in the Biblical account into interventionist stone figures that come to life as the Watchers threatens to turn the piece into too much of a sci-fi thing. But, on the other hand, the entire production is richly imagined, and I don’t really think that it can be tarred is irreverent. I would see it again… after a decent passage of time.

Film | Comment

“All the Way” by Robert Schenkkan with Bryan Cranston at the Neil Simon Theatre

One expects light comedy at the Neil Simon Theatre, but sometimes one gets heavy drama. At least that is the case with “All the Way,” Robert Schenkkan’s dramatization of the first year of Lyndon Johnson’s presidency, November 1963 through November 1964. Johnson was propelled into the presidency unprepared with the sudden assassination of John F. Kennedy. Bringing his masterful legislative talents to bear, he pushed through several key pieces of the Kennedy legislative agenda that had been languishing in congressional committees, and achieved a landslide election in his own right against Barry Goldwater, less than 12 months after taking office.

Bryan Cranston did an exceptional job of channeling LBJ at the matinee performance I attended on April 19. Although he doesn’t really resemble the late president, he managed to scrunch up his facial features in a way that did evoke Johnson. Similarly, his voice fell short of an outright impression of LBJ, but he managed to inject just enough of the Texas drawl to make it convincing. Leaving that aside, however, this is a fully integrated performance that is consistent throughout and certainly seems to capture the character so vividly described in Robert Caro’s exceptional series of biographical tomes, the most recent of which actually covered the first half of this period.

Robert Schenkkan has provided a sympathetic protrait of a complicated man, an intensely political man who was obsessed with achievement and, haunted by the abbreviated lifespan of his father, eager to accomplish as much as possible from the fear that his time in office would be short. As it was, his time in office was cut short by his miscalculation of the public’s willingness to support his military commitment in South Vietnam rather than his health, as events caused him to remove his name from consideration for the 1968 nomination.

Cranston is surrounded by an excellent supporting case, from among whom I would particularly note Brandon J. Dirden as Martin Luther King and Robert Petkoff as Hubert Humphrey. Betty Aidem was also superb in an unduly short role as Lady Bird Johnson – I could have stood for a lot more from her – and the production itself was economically but effectively staged with a unit set that could be quickly converted through lighting, props and projections to provide numerous different appropriate settings from the Oval Office to the halls of Congress to hotel rooms and political convention podiums. Director Bill Rauch had the cast moving through a complex choreography of entrances, exists, and dramatic interactions. The entire thing is so brilliantly enacted and staged that it seems a lot shorter than it actually was. What could have been a dry history lesson emerges as a vivid portrait of a passionately engaged man who stumbled at times — sometimes with tragic consequences for himself and the nation — but who also left a rich domestic policy legacy that continues to provide the framework for some of our most important laws, especially the Civil Rights Act of 1964 which was his first great legislative achievement as president.

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New Music Collective Concert on April 18, 2014, at Spectrum (NYC Lower East Side)

I was invited to attend the concert presented under the auspices of New Music Collective at Spectrum on April 18 by Glen Roven, composer-conductor-record producer extraordinaire. We became acquainted when Glen was commissioned to contribute a song to the 5 Boroughs Music Festival’s Songbook and I attended one of the presentations of that project. His GPR Records is making an important contribution to preserving and advancing American art song as performed by exciting young performers. So when he invited me to attend this concert to hear the premiere of his new song cycle, The Vineyard Songs, Op. 33, by soprano Laura Strickling and Michael Brofman, I resolved to go despite my unfamiliarity with the venue.

Spectrum is a second-story floor-through apartment in an ancient narrow building on Ludlow Street, just a few blocks from where my great-grandfather Jacob Cohen had his tailor shop when he arrived in the New World around 1920. So I get an eerie feeling walking around in this neighborhood, knowing that an ancestor who died long before I was born once walked those streets and, given the age of the buildings in the neighborhood, saw many of the same sights I was seeing as I scurried eastward on DeLancey Street to get there in time for the concert.

I was familiar with only three composer names on the program: Glen Roven, of course, Steven Gerber, and Lowell Lieberman. I’d say that of the three Lieberman is the one who has broken through into the more general consciousness of music lovers to the greatest extent, but his inclusion on this program actually seemed a bit out of place, since he was represented by three of the “Four Etudes on Songs of Robert Franz,” charmingly rendered by pianist Miori Sugiyama, which sounded like relatively faithful piano transcriptions of 19th century lieder, not early 21st century creations!

First things first: Glen’s song cycle is gorgeous. He has set verses by Judith B. Herman, Justen Ahern and Angela M. Franklin, evoking the experience of spending time on the island of Martha’s Vineyard. I’ve never been to the Vineyard, so I can’t attest to the accuracy of the feelings summoned up by this melding of verse and music, but I know a fine song cycle when I hear one, and this is a fine song cycle, expertly performed for this world premiere. My enthusiasm for American art song dates to my college years, when I fell deeply for Charles Ives’s songs. Ives really invented the naturalistic setting of idiomatic American verse, liberating us from the constraints of England’s folksong and Germanic-Mendelssohnian precedents, and I heard the same sort of freedom in Glen’s songs. Actually, most of the cycle is concerned with Judith Herman’s songs, six out of the eight numbers, and the two by Ahern and Franklin are the shortest songs, so I would consider this largely a Herman/Roven cycle, and the two combine wonderfully to enhance each other in a unified artistic expression. After the concert, I asked Glen whether these will be recorded, since I want to get to know them better, and he assured me that they would be forthcoming. After all, he pointed out, he owns a record label. . . Happy composer who owns a record label.

Turning to the other works on offer, mostly world premieres:

Herschel Garfein offered two songs from his ongoing project to make an opera out of Tom Stoppard’s play, Rosenkrantz and Guildenstern are Dead, sung by mezzo-soprano Krista River collaborating with pianist Brofman. I was less impressed by these than by Roven’s songs. I dimly recall attending a production of the Stoppard play when I was an undergraduate at Cornell. (Christopher Reeve, then a Cornell undergrad, appeared in the production I attended. Who knew that skinny kid would become Superman?) I remember a somewhat manic riff on Shakespeare’s Hamlet, seen from the perspective of these two minor, comic relief characters. I didn’t get a strong sense of character from Garfein’s settings, however. Perhaps the problem was first-hearing, but I didn’t have that problem with most of the other works on the program. The music did not really enhance the text, or at least I didn’t feel that these texts particularly called out for musical setting – although it was difficult to tell because the venue turned down the lights making it impossible to follow the texts in the program and the singer’s enunciation was not sufficently clear to make them easily decipherable as sung. (This was not a problem with Roven’s song cycle, since the lights were kept up.)

Adam Tendler accompanied himself on the piano as he recited Frankie Krainz’s text for Gerald Busby’s melodrama titled “This Is How I Do It.” One doesn’t expect pornography at a serious music concert, and perhaps the text was not included in the program for this reason — but what Busby has provided is a musical accompaniment to a masturbatory scene. And, since the text wasn’t in the program, the audience was properly caught by surprise as the story unfolded and, at the last, an orgasm was described in music just as the text reached that critical point. Well, it was involving…. And the piano accompaniment did work well with the text.

Then we had Michael Rose’s set of variations for woodwind quintet inspired by a J.S. Bach chorale. The members of the WorldWinds Quintet seemed to have the matter well in hand, but on first hearing I could not find much to like in Rose’s quintet. It had a rather fragmentary quality and, as is frequently the case with modern “variations” set, the connection between the variations and the chorale on which they were said to be based, were not obvious to the ear. Perhaps it would grow on me with repeated hearing, but I found this piece tiresome.

Not so, however, the bassoon monologue by Steven Gerber, played most expressively by Jack Chan. This came through as a heartfelt song, inspired by the infamous bassoon solo that introduces Igor Stravinsky’s revolutionary ballot score, Le Sacre du Printemps. I was spellbound by it.

Finishing out the first half of the program was “Marvin Gardens” by Ben Morss, a composer-pianist who performed his own piece. Morss explained that this was an experiment, combining in the same piece the classical piano tradition of the early 19th century remembered from his student days and the more pop-oriented music that he frequently performs in his professional life. This was fun to listen to, but I found it difficult to take seriously, despite the composer’s evident sincerity. It was not a melding of styles, but rather a back-and-forth, passages sounding like Chopin or Schumann alternating with passages sounding like 20th century Broadway, pop and cocktail piano music. Morss, despite his disclaimer before the performance, sounded fully up to the technical challenges he set for himself.

The penultimate work on the program (before the Lieberman Etudes) was a set of three exerpts from a Suite for Electric Guitar, played by composer Thomas Millioto. Millioto seems to have channeled J.S. Bach’s Suites for Unaccompanied Cello through his creative process, having written in a style heavily based on that baroque master, but using the characteristic sounds of the electric guitar to make the pieces have a contemporary flavor. So, do we need baroque-style music for electric guitar? Somebody who wants to play the electric guitar in a serious concert setting certainly needs material to play, and I suppose this serves the purpose. Heard on their own, the pieces were interesting and richly evocative of the period on which they were based. And Bach, who himself freely transposed works between different media, would undoubtedly have experimented with the electric guitar were such an instrument available in his time. (I’m not sure how seriously I meant that last line, but on the other hand Bach did experiment with instrumental novelties, such as the recently-invented fortepiano…)

Altogether, some hits and some misses, but that is what one expects from a concert of new music. After all, in any given period of musical history only a handful of composers rise to the top and produce works that will have real staying power beyond their lifetimes, and one can’t be certain from a contemporary perspective about which works by living composers will attain such a life. If I were placing bets from this concert, I would bet on Roven and Gerber most heavily, but all of these composers have enjoyed a certain level of success, and there is no real predicting the musical future. It’s important to support contemporary music concerts and to encourage the composers because the production of music is an extraordinary creative feat and the art needs constant refreshment. I’m glad Glen invited me to this concert.

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The Oklahoma Marriage Argument in the 10th Circuit

Today a panel of three judges from the 10th Circuit heard arguments in the Oklahoma marriage case. The trial judge had ruled (1) that he didn’t have jurisdiction to decide whether Oklahoma’s ban on recognizing same-sex marriages contracted in other states was constitutional, because the only defendant in the case, a county clerk, had no role in the recognition of out-of-state marriages, and (2) that the state’s constitutional amendment banning same-sex couples marrying in the state was unconstitutional. Both sides appealed. The clerk appealed the ruling against her on the marriage ban, and the plaintiffs appealed the jurisdictional ruling on the recognition ban.

As a result of this procedural posture, the attorney for the plaintiffs, Don Holladay, got dragged into questioning on the jurisdictional issue, and then on the question whether same-sex couples would be able to marry if the court struck down the constitutional amendment, in light of Holladay’s decision in framing his complaint not to attack the constitutional of Oklahoma’s statutory ban on same-sex marriage. Holladay never really got to argue on the merits of anything. His argument on the jurisdictional issue seemed to boil down to a law-of-the-case issue. When this case was previously before the 10th Circuit, a different panel said that the plaintiffs had sued the wrong defendants — the governor and attorney general, whose jobs did not involve administering the marriage laws — and that the correct defendant to sue was the county clerk who had denied marriage licenses to same-sex couples. Thus, this could be said to be the “law of the case,” and the current panel should stick to it and find that the district court had jurisdiction to decide the recognition issue. But, Holladay argued, that’s almost just academic, because if the court strikes down the ban on same-sex marriage, the ban on recognition should collapse as well. He used a front door-back door analogy, arguing that if same-sex couples can marry, it would not make sense for the state to be able to turn around and say those who married out of state would be deemed not to have valid marriages within the state. He also argued that when Oklahoma adopted the marriage amendment, it basically replaced the statutes with the amendment, so if the amendment falls, the statutes are gone, too. He said he had cited Oklahoma cases in his brief on that point.

The defense of the ban fell to James Campbell, an attorney for Alliance Defending Freedom, a “public interest” law firm dedicated to opposing same-sex marriage, which stepped in to represent the clerk on appeal. Campbell started off arguing that this is not a sex discrimination case so there should be no heightened scrutiny. He argued that Baker v. Nelson still binds the court, an argument that has been rejected by every district court judge who has decided a marriage equality case since last June’s Supreme Court decision in Windsor. Basically, it was a repeat of arguments made by Utah’s attorney in last week’s argument. A judge pointed out that the Supreme Court seems to have ignored Baker v. Nelson in its Windsor decision, but Campbell replied that Windsor presented a completely different issue, and respected the right of states to decide who could marry. He also distinguished Loving v. Virginia as being a race discrimination case, but Judge Lucero (the Democratic appointee on the panel) pointed out that the Supreme Court in Loving rejected the same kind of argument that Campbell was making on sex discrimination – the equal treatment argument. In Loving, the state of Virginia argued there was no discrimination because blacks and whites were equally prohibited from marrying each other; here, Oklahoma is equally prohibiting men and women from entering into same-sex marriages. The Court rejected the argument in Loving on the ground that the miscegenation ban was adopted to enforce white supremacy. I would say that the marriage ban is enacted to enforce heterosexual supremacy, which means this is a sexual orientation discrimination case. That leads us back to rational basis review, however, under 10th Circuit precedents.

As to that, the general attitude of the judges last week was that the state is in a strong position if it is a rational basis case. This is a bit odd, since many of the district judges in the unbroken string of marriage equality decisions have found that the state lacked a rational basis for maintaining a ban on same-sex marriages. Campbell pushed aggressively further, however. Generally, in a rational basis case the burden falls on the challengers to show that the state lacks a rational basis for the statute. In a heightened scrutiny case, the burden shifts to the state to justify its discriminatory statute by showing that it substantially advances an important state interest. Campbell claims that even in a heightened scrutiny case, the burden remains on the plaintiffs to prove that striking the challenged law would not produce harm in the long run, and he argued that there is no definite proof that changing the definition of marriage would not be harmful in the long run. I think he is off the rails there. One can embrace hypothetical justifications in a rational basis case, as that concept has been developed by the Supreme Court, but not in a heightened scrutiny case. The state cannot exclude an entire class of people from participating in a central social and legal institution based on an unproven hypothesis that there might be long-term ill effects from allowing them to participate. Especially when expert opinion on the main justification posited for the exclusion is firmly arrayed in favor of the view that there would be no harm.

At any rate, the oral argument did not cast much new light on the inclinations of the judges. The impression remains that Judge Lucero is likely to vote to uphold the trial court’s ruling, that Judge Kelly, who again didn’t say much, is likely to vote to reverse, and that the balance falls to Judge Holmes. It was also unclear from the questioning whether one or more of the judges thinks there are jurisdictional issues in the case that would require reversing, because many of the questions seemed odd until one recalled that there was a cross-appeal raising jurisdictional questions. As it is, the cross-appeal effectively deprived Holladay of the opportunity to argue against Campbell’s substantive points, and the court even extended Campbell’s rebuttal time, giving him substantially more time than Holladay to argue on the merits.

The court can take as long as it likes to reach a decision in the Utah and Oklahoma cases, but if it dawdles it is likely to be superseded by opinions from other circuits. The 4th Circuit hears oral argument in the Virginia cases on May 13, and arguments will probably occur in June on the 6th Circuit cases from Michigan, Ohio, Tennessee and Kentucky. In an interesting 6th Circuit development, Roberta Kaplan, who argued for Edith Windsor in U.S. v. Windsor, is again trying to intervene. She was rebuffed by the 10th Circuit when she tried to intervene on behalf of a new set of Utah plaintiffs, but now she is attempting to intervene in the 6th Circuit on behalf of Equality Ohio, the state’s gay rights organization, contending, contrary to the plaintiffs in the Michigan and Ohio cases, that the court should go directly to en banc review as urged by Michigan Attorney General Bill Schuette. Kaplan argues that a three-judge panel would be constrained on the level of judicial review by past 6th Circuit panel decisions, but an en banc panel would not be so bound and could consider the level of scrutiny issue de novo, which would expedite consideration of the case on the circuit court level. Since everybody understands that at least one marriage case is going to the Supreme Court, it would also be more likely to get there first from the circuit that has en banc consideration first. Since the 9th Circuit is hanging back for now, and the 10th might get tied up in jurisdictional knots, to judge by the oral arguments last week and this, the 6th Circuit might be on the one to go up — unless the 4th Circuit beats them to the punch. The 4th Circuit has already scheduled argument before a three-judge panel and nobody is asking to go directly to en banc there. It’s getting difficult to keep up with all these developments! Somebody will be first to the Supreme Court, but it’s too early to tell who.

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Art Leonard’s Cultural Diary – March 22 through April 16, 2014

I’ve had a busy few weeks, both in terms of attending things and in terms of work having to get done, as a result of which there is a big pile-up of programs for me to write about, so herewith a diary of brief comments about the events I’ve attended from March 22 through April 16. I have omitted comment about the Jeremy Denk piano recital at Peoples’ Symphony Concerts, which I wrote about separately right after the event.

On March 22, I attended a concert by Jeffrey Kahane (pianist and conductor) and the New York Philharmonic at Avery Fisher Hall. Mr. Kahane, music director of the Los Angeles Chamber Orchestra, has been a frequent guest at the Philharmonic in recent years, and I have always enjoyed his concerts. For this program, he selected George Gershwin’s Concerto in F, Maurice Ravels Concerto in G, and Kurt Weill’s Symphony No. 2. Both concerti had been recently performed by the Philharmonic with other pianists and conductors, but Kahane brought the distinction of conducting from the keyboard. Leonard Bernstein used to do this with the Ravel concerto (I have a DVD of his performance with a French orchestra that is fascinating to watch), to great effect, and Kahane was right up there with him. This is an orchestra that can pretty well conduct itself in familiar repertory, but the musicians seemed very sensitive to Kahane’s direction. His technical proficiency was more than adequate to the occasion, and his sheer enthusiasm for the music was well communicated to the NYP members, who seemed very involved and excited. The Weill symphony was a novelty, as it had not been played by the NYP since its local premiere under Bruno Walter’s direction in 1934. Was the exhumation worthwhile? I thought so. It’s not a perfect piece, but it is interesting to hear the seeds of Weill’s later development as a successful composer of Broadway musicals. Certainly, the piece is worth hearing more than once every 80 years! It’s neglect may be due to symphonic snobbery more than to its actual merits. The orchestra played beautifully, certainly outclassing the recordings I’ve heard.

The next day, I attended a matinee performance of Kurt Weill’s Threepenny Opera, in the English-language adaptation by Marc Blitzstein, presented by Atlantic Theater Company. Pure coincidence that I would hear Kurt Weill’s music twice in a weekend! This production was directed and choreographed by Martha Clarke. F. Murray Abraham led the cast as Mr. Peachum, Michael Park sparkled as MacHeath (Mack the Knife), Laura Osnes was Polly and Mary Beth Peil (a favorite from the TV series “The Good Wife” – Peter’s mother!) played Mrs. Peachum. I can’t say it was the most invigorating production I’ve seen of this — the Broadway revival with Sting stands out in my memory, and as a child I was brought to see the original production at the then-Theatre-de-Lys on Christopher Street of which I remember no details, only a general sense of fierce brilliance). The performance I saw was a preview. It has since opened to less than rapturous reviews. I still think it is worth seeing any revival of this work by a professional company, because the piece has so much wonderful music.

On March 27, I attended the American Symphony Orchestra’s revival of Max Bruch’s oratorio, Moses, at Carnegie Hall. Sidney Outlaw sang the role of Moses, with Kirk Dougherty as his brother Aaron, Tamara Wilson as the “Angel of the Lord,” with Leon Botstein conducting the orchestra and the Collegiate Chorale (prepared by James Bagwell). This piece was premiered in Germany in 1895 and in the U.S. in 1896 (Baltimore), but after a brief vogue disappeared from view until some recent revivals. It is very long and not particularly memorable, but as usual Botstein and his performing forces provided something worth hearing. Bruch’s music is richly romantic in harmony and orchestration, but his melodic gift is not particularly distinguished. The tunes don’t stay in your head — unlike the Violin Concerto No. 1, which is his main contribution to the standard orchestral repertory and which I think gets more play than it deserves in light of the many other violin concertos that are, in the end, more interesting. It would be interesting to hear what the richer string section of the NY Philharmonic could do with this piece, as the ASO strings tend to sound a bit undernourished in the big moments. I also thought the choir was actually larger than it needed to be for an orchestra of this size. (The ASO is a bit larger than a chamber orchestra in terms of its string body, but substantially smaller than a major symphony orchestra.) They did well with what they had. I’m glad I heard it. I won’t be going out of my way to hear it again.

It was back to the NY Philharmonic for me on Friday, March 28. I had purchased a single ticket for this concert, eagerly anticipating hearing Gustavo Dudamel conducting Bruckner’s 9th. Unfortunately, Mr. Dudamel took ill with flu and cancelled his NYP engagement, but they were lucky enough to land Manfred Honeck, musical director of the Pittsburgh Symphony, as a replacement for the weekend. Honeck had appeared as a guest with the Philharmonic at least once before (his appearance was not billed as a debut) but I couldn’t recall having seen him conduct before. I was very impressed. The Bruckner was superbly done, the orchestra at the peak of its virtuosity, and the third movement Adagio, which concludes this unfinished symphony, was actually devastating in its impact. The program began with Claude Vivier’s Orion, a 1979 symphonic poem that reportedly did much to put its composer on the map when it was first performed by Charles Dutoit and the Montreal Symphony in 1980. Unfortunately, Vivier, a gay man, was murdered by a “trick” in Paris in 1983, so his composing career did not get much beyond this piece. The piece itself defies description in words – a mélange of orchestral effects that is intense and colorful but that does not yield up much understanding on a first hearing.

The next evening, March 29, I was back at Carnegie Hall for the last concert of this season’s series by Orpheus Chamber Orchestra. The orchestra put together a “theme” concert of music inspired by Hungary – most particularly, the Hungarian folk music exponents in the first half — Kodaly and Bartok — and a 19th century Jewish violinist-composer writing in what purported to be the Hungarian style – Joseph Joachim. The Kodaly Hungarian Rondo is a charming trifle, the Bartok Divertimento and substantial dramatic statement that belies its name, and Orpheus rendered them well, although I really missed the effect of massed strings in the Bartok that I recall from a thrilling reading years ago by Kurt Masur with the NY Philharmonic. The Joachim Concerto is a bloated, romantic piece with lots of striking moments but not enough originality to make one regret its failure to become a standard repertory piece. Christian Tetzlaff labored hard to bring it off, and it was certainly an honorable effort. I’m glad they thought to revive it, since it is all too easy to offer up yet another run through the Brahms concerto, which is a great work that is perhaps played too frequently for its own good these days. Vive Joachim! Now let’s honorably retire the piece for a while.

On April 5 I attended City Center Encores! performance of Frank Loesser’s musical, “The Most Happy Fella.” I have a great sentimental affection for this piece, as it was the first musical for which I was hired to perform in a full pit orchestra when I was a high school student in Oneonta, New York, in the late 1960s. And that was quite an initiation into playing in a pit, considering that this piece has more music — at times is almost through-composed — than the typical musical show. The Encores! production was predictably brilliant, with Shuler Hensley shining as Tony, Laura Benanti eager and brilliant as “Rosabella,” and Cheyene Jackson studly (but at times seeming a bit unengaged) as Joe. I did have my occasional complaint with this series about the over-amplification of the orchestra. While it is true that placing the orchestra backstage behind the action would justify some amplification, I think they really overdo it, especially for the brass and percussion, to the point of verging on painfulness during the overture. That aside, the musical performance led by Rob Berman was excellently done, and the cast and crew did a great job on the choreography (by director Casey Nicholaw). In the early days of Encores!, one was accustomed to seeing semi-staged readings with performers carrying black loose-leaf books with the music and lyrics. They have now gotten to the point where cast-members seem to feel it a point-of-honor to have their parts memorized and jettison the books. (During the talk-back after the show, it was revealed that there was a difficult period when they had to carry the books due to Equity rules for this kind of production, but that a renegotiation with Equity made the books optional with the performers.) These now verge on fully-staged productions, and the results – in light of the short rehearsal periods – are extraordinary! Can’t recommend Encores! highly enough to those with nostalgia for the great days of Broadway. Last up for this season will be Irma La Douce before and during the second weekend in May. Be there or be square!

After attending Encores! I had a quick turnaround for a snack and then off to the Church of St. Mary the Virgin in Times Square for the last Early Music concert in Miller Theatre’s 25th Anniversary Season. Fittingly, the performers were The Tallis Scholars, the English group that has regularly figured on this series since its beginning. The group is celebrating its 40th anniversary this year, and put together a program surveying the realm of Renaissance Polyphony in which it specializes, as well as its more recent practice of commissioning living composers to write new polyphonic works for chamber choir. On this occasion, we had a world premiere, with commission by Miller Theatre, of Two Sonnets for Sor Juana Ines de la Cruz by Michael Nyman. I would like to hear these again! The first half of the program was devoted to continental polyphony (Desprez and de Rore), the second half to English polyphony (Sheppard and Tallis), and as usual, Peter Phillips and his singers were beyond reproach. Some have occasionally criticized Phillips and The Tallis Scholars for a sort of chilly precision to their work, but I don’t hear that, finding a warmth and spontaneity that makes their work very involving emotionally for the listener. This was an excellent performance of an excellent program.

The next day I heard a concert by the Los Angeles Guitar Quartet at Town Hall, courtesy of Peoples’ Symphony Concerts. This was in two parts. The first half was devoted to transcriptions of classical music for guitar quartet. We had a suite of dances from Michael Praetorius’s Terpsichore, the grant compendium of royal court dance music of the late Renaissance and early Baroque, a suite from Stravinsky’s ballet Pulcinella, which drew its thematic material from Baroque sources, and finally Liszt’s Hungarian Rhapsody No. 2. None of this music was imagined by its composers as a vehicle for a quartet for modern guitar virtuosi, and I found the sound becoming a bit tiresome. Early music groups usually put together colorful instrumentations for Praetorius, Stravinsky’s orchestration of his ballet makes full use of the coloristic resources of an early 20th century orchestra, and Liszt’s rhapsody exists in numerous colorful orchestral arrangements of the piano original. While the LAGQ is of course virtuosic in its approach to these pieces, I would have preferred the originals. The second half, by contrast, struck me as ideal in every way – a series of shorter works all conceived with the guitar in mind, some actually written for this ensemble, and presenting all the variety of sound that seemed lacking in the first half. I’m happy to have heard the group. I recommend that they focus on modern works written or arranged for them, and forget the Baroque arrangements.

“If/Then” is a new Broadway musical by Tom Kitt (music) and Brian Yorkey (book & lyrics) that I visited on April 9. I had heard complaints that the plot was confusing. Yes, it was. The idea is to depict the alternative realities that could stem from an inflection point in the life of a person, when a seemingly trivial decision to do one thing rather than another is, in retrospect, momentous. The piece seems to have been conceived as a vehicle for Idina Menzel (and the main reason we were there was that my theater-going companion was eager to take in her performance), and I thought she was fine in a very challenging role, although I thought she was painfully over-amplified at times, resulting in a rather shrill sound on her high notes. I did find the plotting confusing and difficult to follow at times. I understand that en route to Broadway a decision was made to have Menzel’s character called Liz in one reality and Beth in the other, to wear glasses in one and not the other, but I failed to pick up on this and was continually confused as the switch between realities took place without transitions, leaving me to think “huh?” all too often during the first act. Things became a bit more understandable in the second act, although again there were moments when things just seemed out of joint. But perhaps that’s the point of the show — how far apart our alternative futures might be, all stemming from a trivial decision early on to do one thing and not another.

On April 13 I attended the American Symphony Orchestra’s final Classics Declassified program for the season, at Symphony Space. The subject was Johannes Brahms’ Symphony No. 2, an early favorite of mine. I played double-bass in performances of this symphony by the Oneonta Symphony Orchestra when I was in high school and the Cornell University Orchestra when I was in college, so I know the piece from the inside out through extended rehearsals. That said, I found Leon Bostein’s lecture to be disorganized, boring, and seemingly pointless at times. Sometimes he comes up with brilliant insights, but sometimes the lecture is just a dud, and this seemed to be such an occasion. Surprisingly, the performance of the symphony was anything but — it was warmly done by an orchestra that seemed fully engaged. The rather smaller string section than one would get from a major orchestra was only occasionally a deficiency, as much of this symphony has a pastoral character that can work with a compact string body. The woodwind soloists, who get a real workout in this piece, were stellar, and the trombones, whose special tonal qualities in playing choral-like passages are an important feature of the piece, were also superb. I think Botstein needs an editor to work with him on the lectures. . .

Finally, last night, April 16, I saw a performance of Terrence McNally’s new play, “Mothers and Sons,” at the Golden Theatre. This is an ensemble piece for four actors. Tyne Daly plays Katharine Gerard, an upstate NY native who married a Texas businessman, lived in Dallas, raised a son who grew up to be gay and ran off to New York City for a career in the theater and died from AIDS in the early 1990s. In an earlier play, “Andre’s Mother,” dating from decades ago, McNally created this character and showed her alienation from the world of her son and her inability to be emotionally present for his memorial service. Frederick Weller plays Cal Porter, Andre’s surviving partner. This play takes place twenty years later, and Cal is now happily married to Will Ogden, an aspiring novelist, played by Bobby Steggert. They have a son, six-year-old Bud, played by Grayson Taylor, conceived through donor insemination and gestational surrogacy. In other words, a very “modern” NYC gay family, and perhaps the first time such a family has been portrayed on Broadway. For some reason, not really explained, Katharine “drops in” on the Porter-Ogden household on Central Park West. There doesn’t seem to be much of a plot, really, just a picture of colliding worlds as the still disapproving and disgruntled mother interacts with her late son’s lover and his “new” family. There are many affecting moments. Anyone who lived through the early years of AIDS in New York will have memories recalled, aided by a pre- or post-show visit to the lower lobby where panels from the AIDS Quilt are mounted. Presenting this history is important, but I found the show itself, while frequently absorbing, to be rather uneven, and I’m wondering whether McNally might treat this production as a first take on a work in progress and figure out revisions before it gets mounted again. The material is definitely worth exploring, and perhaps the experience of seeing it play out will inspire him to make changes that will strengthen it dramatically. Certainly this cast does a great job with it, although I found Weller’s performance a bit odd — what kind of accent was he trying to present? — and the role of the child is rather challenging for a young actor to present naturalistically, although Master Taylor acquitted himself honorably. I’m a Steggert fan and was happy to get a slice of his work here — I wished the part were a bit longer. And Tyne Daly, who was McNally’s “muse” for this piece, was perfectly cast, effectively projecting the brittle quality of a woman who is totally a fish out of water in this environment, unsure why she is there and how to act and react to what she is experiencing. Certainly this is a show that the LGBT community should be supporting. The audience was rather small, even for what is a relatively small Broadway “straight-theater” house, and I hope word of mouth may pick it up a bit. A play doesn’t have to be perfect to be worth seeing, and I find that anything Terrence McNally does is worth seeing, so I hope people will go.

My cultural calendar coming up: tomorrow night a premiere of new songs by Glen Roven at Spectrum, “All the Way” on Broadway, Music from Marlboro and Alarm Will Sound during the last weekend in April, Irma La Douce with Encores’ in May. . .

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India’s Highest Court Declares Equal Rights for Members of India’s Transgender Community

In a historic decision, a two-judge bench of the Supreme Court of India, ruling on a petition brought by the National Legal Services Authority on behalf of members of the transgender community, has declared that among the human rights protected by the Indian Constitution are the rights of individuals to State recognition of their gender identity and sexual orientation, and to be free of official discrimination on these grounds. The original petitioner was joined by several others, resulting in a consolidated decision issued on April 15, 2014. Although the petition was brought specifically to gain redress from the outcast status of transgender people in India, the court’s expansive language appeared to take in as well, at least to some extent, the social inequities endured by gay people.

The court mentioned in passing the recent ruling in the Naz Foundation case, rejecting a constitutional challenge to Section 377 of the Indian Penal Code, which criminalizes gay sex, but said it was expressing no opinion on that issue “since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.” A different panel of the court recently signaled willingness to examine a “curative petition” that had been filed by the government in the Naz Foundation case, so it is possible that a new opinion may issue on the sodomy law question. If it is consistent with the ruling in this case, it would be a reversal of the retrogressive opinion from the other panel.

Each of the judges sitting on this case – Justice K. S. Radhakrishnan and Justice A.K. Sikri – wrote an extended opinion, although Justice Raqdhakrishnan’s far longer opinion set forth historical background and a thorough review of the treatment of transgender and gender identity issues in the statutes and court rulings of other English-speaking countries. After reviewing the various forms of discrimination and exclusion that transgender people suffer in India, Justice Radhakrishnan wrote, “Discrimination faced by this group in our society is rather unimaginable and their rights have to protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. Rights of transgenders, pure and simple, like Hijras, eunuchs, etc., have also to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity.”

Interestingly, the court came to this conclusion — that some individuals are entitled to be recognized under the law as other than male or female, or “third sex” — just shortly after Australia’s highest court came to the same conclusion, allowing an individual who identified as neither male nor female to have an official gender identity of “not specified.” Evidently the recent Australian high court ruling came too late to be included in this opinion, but the court did cite to an earlier ruling in that case by the New South Wales Court of Appeal from 2013, whose ruling the Australian high court had affirmed to this effect.

The court took particular note of legislation in the U.K., Australia and other places by which those governments had adopted a formal mechanism for dealing with issues of gender identity, and especially changes of status sought by individuals who did not identify with the gender they were assigned at birth based on their genitals. The court quotes at length from the 2013 amendment enacted by Australia to address discrimination on the ground of sexual orientation, gender identity, or intersex status, and in passing regretted the lack of such legislation in India, leaving it to the courts to ensure that transgender individuals can enjoy full legal and social equality.

Perhaps the most fascinating part of Justice Radhakrishnan’s opinion is a brief review of the history of transgender people in India, where it seems they had a rather exalted status prior to the British colonial period, with its introduction of the sex-negative baggage of 19th century British imperial jurisprudence, leaving behind the unfortunate legacy of Section 377 that has lingered throughout the former British colonies.

After finding that international conventions and norms of gender equality provide the appropriate reference for dealing with the petitions in this case, the court argued that the absence of suitable Indian legislation left it open to the court to “respect the rules of international law,” but the court also found several Indian constitutional provisions to be sources of authority upon which to draw. “Article 14 of the Constitution of India states the State shall not deny to ‘any person’ equality before the law or the equal protection of the laws within the territory of India,” wrote Radhakrishnan. “Article 14 does not restrict the word ‘person’ and its application only to male or female,” the judge continued. “Hijras/Transgender persons who are neither male/female fall within the expression ‘person’ and, hence, [are] entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.” Furthermore, “Non-recognition of the identity of Hijras/Transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police.” The court concluded, “Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”

The court also found a violation of Articles 15 and 16, which enumerate forbidden grounds for discrimination, including “sex.” Without noting the source, the court then described a mode of analysis — sex stereotyping as sex discrimination — similar to that adopted by the U.S. Supreme Court in 1989 in the Hopkins case, which has since been embraced by the U.S. Equal Employment Opportunity Commission in its ruling that discrimination because of gender identity is a form of sex stereotyping contrary to the requirements of modern sex discrimination law. Indeed, going further beyond where the EEOC has gone, the court wrote, “State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.”

“Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation, and, therefore, it will have to be protected under Article 19(a)(a) of the Constitution of India,” wrote the judge. “A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, there, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the Transgender community under Article 19(1)(a) of the Constitution of India and State is bound to protect and recognize those rights.” The court also found protection for transgender rights in Article 21, an analogue of the U.S. Due Process Clause, which has been held to protect the dignity of the individual, just as the U.S. Supreme Court held last year in U.S. v. Windsor that the Due Process Clause of the U.S. 5th Amendment protects the dignity of married same-sex partners.

Finally, Justice Radhakrishnan focused on the “third gender” individuals who do not identify as male or female, asserting that the government must respect their gender identity as well and adapt policies and official forms to acknowledge the existence of third gender individuals. “Article 14 has used the expression ‘person’ and Article 15 has used the expression ‘citizen’ and ‘sex’; so also Article 16. Article 19 has also used the expression ‘citizen.’ Article 21 has used the expression ‘person’. All these expressions, which are ‘gender neutral’, evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.”

“We therefore conclude,” wrote Radhakrishnan, in a point on which Justice Sikri stated full agreement, “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restrict or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”

Justice Sikri’s opinion focused on the development of international human rights principles and their application to the question before the court, observing that “there is thus a universal recognition that human rights are rights that ‘belong’ to every person, and do not depend on the specifics of the individual or the relationships between the right-holder and the right-grantor.” Just as they are “not granted by the people, nor can they be taken away by them.” And, “If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspects of self-determination, dignity and freedom.”

After the two separate opinions, the justices joined in a declaration binding the State to recognize transgender and third gender individuals, to protect them from discrimination and take affirmative steps to improve their conditions and opportunities. Among other things, they directed the government to “provide them separate public toilets and other facilities.” There is a practical solution to the question frequently raised in gender identity discrimination debates – the restroom question. The Indian Supreme Court says we should abandon the shackles of binarism when it comes to public facilities. The court noted that the government had already established an Expert Committee “to make an in-depth study of the problems faced by the Transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with recommendations within three months of its constitution.” The Court stated that those recommendations should “be examined based on the legal declaration made in this Judgment and implemented within six months.”

The court singled out for particular commendation in its decision the “learned senior counsel” who presented the case for the Petitioner National Legal Services Authority, Shri Raju Ramachandran, and lead counsel for the other intervening parties, Shri Anand Grover, Shri T. Srinivasa Murthy, and Shri Sanjeev Bhatnagar. The court noted appearances of counsel for the government, who informed the court about steps the government was already taking to address the issue, which led to the court’s concluding deadline for implementation of such a process.

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Federal Judge Strikes Down Ohio Marriage-Recognition Ban as “Facially Unconstitutional”

U.S. District Judge Timothy S. Black, who ruled in December that Ohio’s ban on recognizing same-sex marriages from other states was unconstitutional in connection with recording marital status and surviving spouses on death certificates, today expanded his ruling in the context of a second lawsuit brought by married same-sex couples seeking recognition for purposes of birth certificates. However, Judge Black didn’t restrict his ruling to that issue, instead finding that Ohio’s recognition ban was unconstitutional in all its applications. Judge Black temporarily stayed his ruling to give the plaintiffs time to file a written response to the state’s request that it be stayed pending appeal to the 6th Circuit Court of Appeals, and promised to rule expeditiously on this question, while stating his “inclination” to require his ruling to go into effect for the four plaintiff couples. [Additionally noted: On April 16, Judge Black issued an order, granting the state's motion for a stay, except for the four plaintiff couples, as to whom he directed that the state issue birth certificates for their children showing both spouses as parents.]

The plaintiffs, four same-sex couples represented by Alphonse Gerhardstein, Jacklyn Gonzales Martin and Jennifer Lynn Branch of Gerhardstein & Branch Co. LPA, were all married in other states. The three lesbian couples are Ohio residents, and each couple is expecting a child to be born in the next few months, conceived through donor insemination. For purposes of birth certificates, they want these births to be treated the same way Ohio treats other births to married couples where the wife becomes pregnant through donor insemination. In such cases, Ohio issues a birth certificate identifying the mother’s spouse as the child’s other legal parent, but the state’s Health Department, under the direction of named defendant Lance Himes, refuses such equal treatment, claiming that the state’s Marriage Amendment and marriage-recognition statutes prevent it. The fourth couple, two gay men in New York who adopted an Ohio-born child, want Ohio to follow its statutory procedure for issuing new birth certificates for children adopted in other states, which requires recording the names of both parents on the birth certificate. In this case, the men jointly adopted the child in a New York proceeding, and ask that Ohio recognize that adoption and their parental status.

Judge Black pointed out that Ohio used to follow the procedure requested by the male couple, Joseph Vitale and Robert Talmas. However, when the current Republican administration took office in January 2011, Governor Bill Kashich and Attorney General Mike DeWine ordered that the Health Department cease recognizing out-of-state same-sex marriages for this limited purposes, even though the same-sex couple and their child reside out of state and all that Ohio was being asked to do was to issue a substitute birth certificate for the child.

Unsurprisingly, Judge Black found that nothing has happened since his December decision to change his legal analysis. Indeed, he noted on the second page of his decision “ten out of ten federal rulings since the Supreme Court’s holding in United States v. Windsor — all declaring unconstitutional and enjoining similar bans in states across the country.” Furthermore, he wrote, “The pressing and clear nature of the ongoing constitutional violations embodied by these kinds of state laws is evidence by the fact that the Attorney General of the United States and eight state attorneys general have refused to defend provisions similar to Ohio’s marriage recognition bans.”

This led Judge Black to a sweeping conclusion: “This court’s analysis in [its December ruling] controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially unconstitutional and unenforceable in any context whatsoever.” Judge Black’s opinion is written in emphatic terms, and to drive home his key points, he issued a slip opinion where those points are in bold, underlined type.

He rooted his ruling in prior decisions by the United States Supreme Court, and seemed at times to be responding as much to arguments being raised by marriage equality opponents in lawsuits from other states as to the argument raised by Ohio’s attorneys. For example, quoting from a 1990 U.S. Supreme Court ruling, Hodgson v. Minnesota, “the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicted on legitimate state concerns other than disagreement with the choice the individual has made,” or, referring to several Supreme Court decisions, he wrote that “the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right.” He concluded that “the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans.” He found that denial of this right also affected another fundamental right, the right to parental authority. “U. S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances,” he wrote.

While cases involving state abridgement of fundamental rights are usually analyzed using the “strict scrutiny” test, under which the challenged statute is presumed unconstitutional and the state has the burden of showing that the statute is necessary to achieve a legitimate and compelling state interest, Judge Black decided to treat this as a heightened scrutiny case, using a balancing approach between the interests of the plaintiffs and the state. He described the many burdens that denial of recognition places on married same-sex couples — and particularly those raising children, as in this case — and found that the Supreme Court’s decision last June in U.S. v. Windsor addresses the issue directly. In that case, Justice Anthony M. Kennedy described same-sex marriages being denied recognition under federal law as “second-tier” marriages, and wrote, “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,” and that “it humiliates tens of thousands of children now being raised by same-sex couples,” a point that Judge Black emphasized with underscored bold print.

By contrast, he found that the interests that counsel for Ohio had identified just did not measure up. He particularly dismissed the idea that Ohio’s marriage ban enjoyed some sort of special legitimacy because it was enacted as a constitutional amendment by the voters. “In particular,” he wrote, “the Court notes that given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.” He also responded to the state’s argument that the Supreme Court in Windsor had recognized that regulation of domestic relations in the U.S. has traditionally been an exclusive function of the states by pointing out that such state regulation is “subject to constitutional guarantees.”

Thus, he found, the state’s refusal to recognize same-sex marriages performed elsewhere “violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so.”

Judge Black also found an equal protection violation. He pointed out that 6th Circuit equal protection precedents involving gay litigants pre-dated the Windsor decision, which required deciding anew whether sexual orientation discrimination should invoke heightened scrutiny. Referring back to his earlier decision, he found that heightened scrutiny was the correct approach, noting in passing the 9th Circuit’s conclusion on this point in its jury selection ruling in January. “Here,” he wrote, “Defendants’ discriminatory conduct most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents. Ohio refuses to give legal recognition to both parents of these children, based on the State’s disapproval of their same-sex relationships.” But this clearly runs afoul of another well-established Supreme Court precedent, Plyler v. Doe, for the proposition that “disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause.” And, he found, the state had no rational basis for imposing such a discriminatory policy, much less an important policy reason that would be sufficient to withstand heightened scrutiny.

In a lengthy textual footnote, Judge Black also noted that Ohio’s refusal to issue an appropriate new birth certificate to the New York couple who had adopted an Ohio child could be held to violate the Constitution’s Full Faith and Credit Clause. An adoption order is a judicial order that is entitled to full faith and credit, and Judge Black identified as an outlier the 5th Circuit ruling in a Louisiana case suggesting that a federal court could not order a state to issue such a birth certificate.

Ohio has already appealed Black’s earlier ruling, Obergefell v. Wymyslo, to the 6th Circuit, and Governor Kasich and Attorney General DeWine have already announced that they will appeal this ruling as well, so the immediately pressing question is whether Black will stay his ruling. In a footnote at the end of his opinion, he wrote that he is “inclined” to stay the ruling on facial unconstitutionality, which would be consistent with what other federal trial judges have been doing since the Supreme Court stayed the order in the Utah marriage case. However, noting the “imminent births of their children and other time-sensitive concerns,” he was also inclined not to stay the order as it applied to the four plaintiff couples in the case. He promised to rule promptly after receiving final briefing from the parties on the stay issue. [On April 16, he followed his inclinations, as noted above, staying the ruling pending appeal except as to the four plaintiff couples, for whom the Order goes into effect. One hopes that the Ohio government defendants will have the good sense not to appeal this order.]

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Jeremy Denk Piano Recital at Peoples’ Symphony Concerts

Tonight Jeremy Denk presented an intriguing piano recital as part of the Arens Series of Peoples’ Symphony Concerts, presented at Washington Irving High School’s nicely-refurbished auditorium. Denk presented an eclectic program of Mozart, Ligeti, Byrd and Schumann.

As a long-time attender of Peoples’ Symphony programs, I feel like I’ve watched Denk grow up at the keyboard, since he has appeared several times over the years. Now a mature artist, he hasn’t lost that childlike wonder and excitement that make his performances of even the most mainstream repertory seem fresh and newly-conceived. Indeed, although he is clearly playing all the notes with great facility and has thought through exactly what he wants to do, there is an air of improvisation about his work that helps to bring the music to startling life.

He began with Mozart’s Sonata in F Major, K. 533/494, a piece patched together from two unrelated manuscripts. I thought the first movement was just too fast at many points, but maybe that’s just me. No matter how fast, everything was cleanly rendered, but I think things just don’t “sound” if they are played too fast. I had no such complaint about the remaining movements. This performance struck me as a bit old-fashioned, in the sense that it was a large-scale dramatic rendition using the full dynamic range and coloristic capabilities of the piano, far beyond what would have been available to Mozart. The “historically informed practice” people would undoubtedly not approve, but I find that I enjoy performances of old music that break from such strictures… and perhaps ask what Mozart would have done with the capacities of a 21st century concert grand?

Denk is a master of the Ligeti Etudes. Tonight he gave us a selection of six from Book Two, having decided after the program was printed to drop one of the seven that were listed. He plays them with great energy and enthusiasm for ultimate dynamic contrast and rhythmic excitement, although the final one he selected ended calmly, perhaps to create a symmetry with the second half of the program.

After intermission, we had a brief piece by William Byrd from “My Ladye Nevelles Booke” and, as with the Mozart, Denk made no concessions to the age of the music, giving a very pianistic rendition that was quite beautiful in its graceful lyricism.

Finally — and definitely the highlight of the evening for me — Robert Schumann’s Davidsbundlertanze, Op. 6, a collection of 18 highly contrasted character pieces, with some recurring motifs, that were constantly fascinating in Denk’s very personalized approach. As noted above, a particular feature of his playing is creating an air of spontaneity, even improvisation, but in performances that are technically impeccable and so clearly carefully thought out. I hope he will record this piece before long, understanding that any recording would be a mere snapshot of his constantly evolving conception, but it is at present a conception worth preserving.

Denk’s recently-released recording of Bach’s Goldberg Variations is a spectacular success, and he favored us with one of the variations as an encore.

This was undoubtedly one of the most satisfying programs of this year’s Peoples’ Symphony series. It was worth the price of the entire subscription and more.

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Court of Appeals Argument on Utah’s Appeal of Marriage Ruling Points to Variety of Potential Outcomes

A panel of three judges of the U.S. Court of Appeals for the 10th Circuit in Denver heard oral arguments on Thursday, April 10, in Utah’s appeal of a December ruling by U.S. District Judge Robert Shelby that the state’s constitutional and statutory ban on same-sex marriages is unconstitutional. Because both Judge Shelby and a 10th Circuit panel had refused to stay that ruling pending appeal, more than 1,000 same-sex couples married in Utah before the Supreme Court granted a stay on January 6. As usual at such hearings, the court did not indicate directly how it would rule, and an opinion is likely months away, not least because this panel will reconvene on April 17 to hear Oklahoma’s appeal of a similar district court ruling and might decide to combine the two cases in one opinion.

However, the questions and answesr and dialogue between the judges and the lawyers provided insights into the thinking of the judges about how the case might be decided. Perhaps most surprising to those in the courtroom or listening to the recording that the court quickly posted to its website, the court might not even decide the case on the merits, as judges raised questions about “standing” more than once, and one judge suggested that perhaps the case should not have been decided by Judge Shelby on a summary judgment motion because of disputed facts that might be relevant to a final decision.

The issue of standing occupied center stage last June when the Supreme Court ruled in Hollingsworth v. Perry that the federal appeals courts lacked jurisdiction to rule on California’s Proposition 8 same-sex marriage ban because the supporters of that ban, who had appealed the district court’s decision striking it down, lacked “standing” to do so. “Standing” is a principle of federal constitutional law that requires the party who files a lawsuit or who seeks to appeal a trial court decision to have a personal stake in the outcome of the case, not merely a theoretical or generalized interest in how the case would be decided. For example, in right-to-marry cases, the plaintiffs are couples whose right to marry is being denied by the state, so they clearly have standing to file suit against a public official, such as a county clerk, who refuses to issue them a marriage license. Courts are divided, however, over whether they can file suit against a state governor or attorney general, as neither of those officials plays a direct role in issuing marriage licenses or administering the state’s marriage laws. This turns into a “standing” issue on appeal of a trial decision in favor of plaintiffs, when the standing issue shifts to the defendants who are appealing. A county clerk clearly has standing to appeal, since issuing marriage licenses is a function of their job, and county clerks are the only appellants in the Virginia marriage equality case now pending in the 4th Circuit in Richmond. But in the Utah case, the appellants are the governor and attorney general. Although the Salt Lake County clerk, who denied licenses to the plaintiffs, was a defendant in the trial court, she did not join in the appeal, and the attorney who appeared for the state, Gene Schaerr, presented himself as representing Governor Gary Herbert and Attorney General Sean Reyes.

This led the court to pose the “standing” question to both sides. If neither Governor Herbert nor Attorney General Reyes has personal responsibility for the enforcement of the marriage laws, is the case properly before the court of appeals? The question here is different from that posed in Hollingsworth, because in that case the appellants were private parties, not government officials, who clearly had no personal stake in the outcome in the sense that their personal lives would not be affected by the result. Even then, the Supreme Court split 5-4 over the standing question, the dissenters arguing that the California Supreme Court’s advisory opinion stating that initiative proponents could represent the state in defending their initiative provided a sufficient basis for standing. In this Utah case, the question is “closer” since the governor and attorney general have taken oaths binding them to defend the state’s constitution and faithfully enforce its laws, and they would have a similar responsibility were Judge Shelby’s decision upheld. Neither party in this case had raised standing as an issue, and Peggy Tomsic, the plaintiff’s lawyer, agreed with Schaerr in arguing to the court that there was no problem with standing. Among other things, she appointed out that ultimately the governor and attorney general did have supervisory authority over the county clerks and could direct them regarding their role in issuing or denying licenses. Similarly, the governor and attorney general would likely play a role in supervising or directing agencies confronted with the question whether to recognize same-sex marriages from other jurisdictions, which is also an issue in this case. Indeed, it seems unlikely that the court would shy away from a ruling on the merits based solely on “standing.” Surely, the chief executive and chief law enforcement officer of a state have a direct interest in appealing a trial court’s ruling that state constitutional and statutory provisions violate the federal constitution.

The state itself is not a defendant in this case, because the federal constitution has been interpreted by the Supreme Court as barring citizens from suing their own state government in federal court. Thus we have the “legal fiction” of suing state officials in their “official capacity” in order to challenge the constitutionality of a state law. Due to standing concerns, the federal courts insist that particular officials can only be sued if there is a close connection between the law at issue and their official duties. Some federal courts have dismissed marriage lawsuits that were brought against governors and attorney generals when the plaintiffs did not also sue the state official with direct authority to administer the marriage laws or a county clerk who had actually denied the plaintiffs a marriage license, out of this concern for “standing.” For example, in Pennsylvania, Governor Tom Corbett was removed as a defendant in the pending marriage equality cases for this reason, and in Louisiana a federal court dismissed a marriage equality case where the only individual sued was the attorney general. The Supreme Court raised a “standing” concern in the DOMA case (U.S. v. Windsor) as well, asking whether the United States, as represented by the Solicitor General, had “standing” to appeal a lower court decision with which the government agreed, for lack of any actual “case or controversy.” Ultimately the Supreme Court found that the government has a real interest in having a binding ruling by the Supreme Court when a lower court declares a federal statute unconstitutional. The same logic should hold in this case. Even if Herbert and Reyes were not necessary defendants at the trial court level, they would surely have a direct interest in their official capacities to appeal a ruling striking down state laws.

The other suggestion floated by the court that could defer a ruling on the merits was that Judge Shelby should not have ruled on the motion for summary judgment because a trial was necessary in order to determine facts that were in dispute. Judges are supposed to grant summary judgment motions only when material facts are undisputed and there is no need for an evidentiary hearing to resolve factual disputes. At least one 10th Circuit judge questioned whether the plaintiffs and defendants actually agreed about all the facts necessary to decide this case. Interestingly, the recent marriage equality ruling from Michigan followed the first trial on the subject since last June. Michigan District Judge Bernard Friedman had denied summary judgment motions last fall, having concluded that there were facts in dispute about the state’s justifications for banning same-sex marriage that would have to be resolved if the case was being decided using the “rational basis” test, and the judge eventually ruled on the merits only after the trial had been concluded. The hearing was focused on expert testimony from both sides about the potential impact of allowing same-sex marriages on child-rearing results, and the judge concluded in his opinion that the state’s witnesses on the issue were “unbelievable.” If the 10th Circuit panel finds that there remain disputed issues of material fact, it could send the case back to Judge Shelby with directions to hold a trial on the disputed points.

However, it seems unlikely that the court will conclude that this is necessary, when all but one of the marriage equality rulings that have been issued since the Windsor decision last June have come from summary judgment motions, with only the Michigan case following a trial. Numerous federal judges have taken the position that this issue can be decided as a question of law based on undisputed facts or, perhaps more accurately, based on a finding that even if the state is correct about its factual assertions, they don’t justify denying the right to marry to same-sex couples. While Judge Friedman’s finding that expert testimony presented by Michigan was “unbelievable” is not binding on the 10th Circuit, it seems to have carried significant weight with Utah’s attorney, Gene Schaerr, who sent a letter to the court earlier in the week noting that his brief had cited the so-called Regnerus study but that he was not relying on it to prove that parenting by same-sex couples is inferior to parenting by different-sex couples.

As to the merits of the case, to the best one might conclude from hearing the argument, it seemed unlikely that there would be a unanimous decision one way or the other. Judge Carlos Lucero, a veteran of the court who was appointed by President Bill Clinton, clearly indicated by his questioning and comments that he most likely supported the plaintiffs’ position, while Judge Paul J. Kelly, Jr., who was appointed by President George W. Bush, seemed more disposed towards the state’s position, although he posed many fewer questions making it harder to discern his views. The tie-breaker may end up being another Bush appointee, Judge Jerome A. Holmes, who questioned both sides quite sharply, making it difficult to predict where he will come to rest.

Clearly, all the judges seemed to agree that the threshold question of the level of judicial scrutiny would likely determine the outcome of the case. In 2008, the 10th Circuit ruled in Price-Cornelison v. Brooks, 524 F.3d 1103 (2008), that a local law enforcement official had no rational basis for refusing to enforce an order of protection obtained by a lesbian and, in passing, observed that heightened scrutiny would not apply because the case did not involved a “protected class” under the Equal Protection Clause. Based on that, this 10th Circuit panel is bound to apply the rational basis test, the lowest level of judicial scrutiny, to sexual orientation discrimination cases, unless subsequent legal developments mandate a higher standard or this case is viewed as involving something other than just a sexual orientation discrimination claim. Thus, the question whether the Supreme Court’s decision last year in U.S. v. Windsor established a higher standard of review that would apply to this case was a central issue in the argument and may determine the outcome, since the judges might agree, as at least one suggested during the argument, that the Utah ban would survive the traditional rational basis test, which is very deferential to the state.

It was frustrating to listen to the questions and answers on this point, because they failed to come to grips with what Justice Anthony Kennedy wrote and did in his opinion for the Supreme Court in the Windsor case. Kennedy did not state that Windsor involved a fundamental right to marry or a suspect classification based on sexual orientation. Rather, he treated it as a case in which Congress discriminated against same-sex couples by excluding them from the recognition of their state-law marriages with the result that they were deprived of numerous federal rights and benefits. It was not just a sexual orientation discrimination case. Rather, it was a case of intentional unequal treatment of a defined portion of the population, having direct and wide-ranging adverse effects, and the Court concluded that none of the arguments mounted in favor of Congress’s policy decision were sufficient to justify the magnitude of the deprivation. As in his prior gay rights opinions, Romer v. Evans and Lawrence v. Texas, Kennedy avoided invoking the categories and classifications that the Court had used in prior cases involving race or sex discrimination, instead applying a mode of judicial review particularly tailored to the issues before the Court.

Lower federal courts have difficulty applying such precedents, because, being bound by Supreme Court opinions, they are looking for clear direction about the application of existing doctrinal categories, and they are not getting such clear direction because Kennedy did not speak in terms of these categories. However, this observer suggests that Windsor bears directly on the question before the 10th Circuit in this case, because the Court, in effect, applied something like heightened scrutiny in case where Congress was discriminating against same-sex couples regarding an important social status and set of rights and benefits. Kennedy referred disparagingly to “second tier marriages” that enjoyed state but not federal recognition, and wrote about the specific stigma and burdens imposed upon children whose parents’ marriages were not recognized. He emphasized the failure of the federal government to recognize the “dignity” that legal state marriages conferred on same-sex couples. In this sense, Windsor is very much like Romer, the Colorado Amendment 2 case from 1996. A state constitutional amendment or statute that discriminates on its face against a distinct group of people must have a legitimate policy justification, and that justification must have some logical connection to the discrimination at issue.

Thus, if a state’s concern is that the “best” setting for raising a child is a family headed by a husband and a wife, it would have to show not just that this is a legitimate policy concern, but also that banning same-sex couples from marrying is a way of effectuating that policy. Schaerr was reduced to arguing that letting same-sex couples marry would send subtle messages to boys that would somehow undermine their masculinity, leading them to become bachelor outlaws. (This is a paraphrase, but not off the mark.) The state offers no factual support for this argument, merely hypothesis, and admits that the phenomenon of same-sex marriage is too new for there to be any proof that it will have this effect, as the right to marry in the United States dates back only to May 2004 when the Massachusetts Goodrich decision went into effect, and same-sex marriages in Canada and the Netherlands only began a year or two earlier. If the right to marry is a recognized constitutional right, Tomsic argued, it could not be trumped by such unproven speculation. The state should have to show that allowing same-sex couples to marry would have some sort of deleterious social effect. This certainly hasn’t manifested itself in the near-decade since same-sex couples began marrying in Massachusetts, and so far every federal judge confronting this argument since the Windsor decision has rejected it. Tomsic pointed out that the same sort of justifications were voiced by members of Congress in 1996 when they voted for DOMA, and the Supreme Court found them insufficient to justify withholding federal recognition from same-sex marriages.

Justice Antonin Scalia, in his dissenting opinion in the DOMA case, saw Kennedy’s approach in Windsor as leading ineluctably to a constitutional right for same-sex couples to marry. Chief Justice John Roberts disagreed, insisting that the case was a “federalism” case that respected the right of states to decide who could marry. But Kennedy was clear in writing that the state’s right to determine who could marry was subject to constitutional requirements of equal protection and due process, and that, in line with the reasoning in Windsor, the state would need good justifications to exclude same-sex couples from this right. Furthermore, Kennedy made clear that he was basing his opinion entirely on the 5th Amendment’s Due Process Clause and its equal protection component, and not on the concept of federalism as such, although federalism concerns clearly entered into the equation.

So far, every federal trial judge who has ruled in a marriage equality case has agreed (with Scalia) that the reasoning of Kennedy’s opinion for the Court requires striking down state bans on same-sex marriage. If the 10th Circuit ends up being divided on this question, it will be the first time since last June that any federal judge has not reached that conclusion after more than half a dozen trial court rulings.

The one certain thing about the 10th Circuit’s opinion, however, is that it will not mark the end of the case. If there is no standing for an appeal, Judge Shelby’s decision would stand as unappealed, unless Governor Herbert could persuade the full 10th Circuit to take up and reverse the panel’s decision, or even take the issue directly to the Supreme Court. The Supreme Court’s stay of Judge Shelby’s order was issued pending a ruling by the 10th Circuit, so by its terms it would expire upon the 10th Circuit issuing a decision, and the state would have to go back to get it renewed. If the case is sent back to Judge Shelby for trial, this litigation may become moot when the Supreme Court eventually rules on a case from another circuit. If the 10th Circuit rules on the merits, the losing party will certainly either seek review from an expanded panel of judges (en banc review) or petition the Supreme Court for review. So the 10th Circuit judges know that their ruling, while momentous in the short term, will likely be about as significant in the long run as the 2nd Circuit’s ruling in U.S. v. Windsor — a footnote to history.

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