New York Law School

Art Leonard Observations

Arizona Federal Court Orders State to Recognize One Same-Sex Marriage on a Death Certificate

In a ruling that eerily echoed one issued little over a year earlier, a U.S. District Court judge has ordered the state of Arizona to issue a death certificate for a gay man identifying him as a married to his same-sex spouse.  The September 12 ruling in Majors v. Jeanes, 2014 U.S. Dist. LEXIS 127942, by Judge John W. Sedwick provided a close parallel to a ruling on July 22, 2012, by U.S. District Judge Timothy S. Black, who ordered the state of Ohio to issue a death certificate under similar circumstances.  In both cases, the couple had gone out of state to marry because their home state did not allow or recognize same-sex marriages and then returned to their home state, where a member of the couple died.  In the Ohio case, however, the couple secured their court order prior to the death.  In Arizona, the couple had joined other plaintiffs in a lawsuit challenging Arizona’s denial of marriage equality, but the surviving spouse filed a motion seeking an order to record his spouse’s death properly after it had taken place.

Represented by Lambda Legal, Fred McQuire argued that his constitutional rights were being violated by the state’s refusal to accord any recognition to his marriage with George Martinez.  The men had lived together as a couple for many years, but they were both in ill health in recent years.  After the Supreme Court’s dismissal of the appeal in the Proposition 8 case and the restoration of marriage equality in California, they decided to go there to get married.  Perhaps they were inspired by the example of the Ohio couple, James Obergefell and John Arthur, whose quick trip to Maryland in a specially chartered plane and wedding ceremony conducted on the airport tarmac during July 2013 received extensive press coverage, as did the subsequent decision by Judge Black to grant a temporary restraining order so that Arthur could die a married man.  But they took quite a while to put their expedition together, undoubtedly complicated by their health problems, and did not get married until July 2014.  Martinez then died on August 28, and the resistance of Arizona officials to issuing a proper death certificate brought on the motion seeking relief from Judge Sedwick.

The state’s first argument in opposition was that the Supreme Court’s 1972 ruling in Baker v. Nelson that a claim for same-sex marriage did not present a “substantial federal question” precluded a ruling in McQuire’s favor.  Judge Sedwick made short work of this argument, opining that the Supreme Court’s decisions in Romer v. Evans (1996), Lawrence v. Texas (2003) and U.S. v. Windsor (2013) had eliminated any uncertainty about whether Baker v. Nelson is still a binding precedent.  Pointing out that less than two weeks previously the 7th Circuit Court of Appeals had ruled that Baker did not block a marriage equality ruling, Sedwick said that the old decision “is not an impediment to consideration of McQuire’s claim.”

In order to grant such a pretrial order, the court must find that the plaintiff is likely to succeed on the merits of his claim, that he is likely to suffer irreparable harm without the relief he is seeking, that a balance of the equities tips in his favor, and that the public interest favors issuing the relief.  In reviewing the four factors, Sedwick was actually signaling the likely outcome when he eventually rules on a motion for summary judgment by the full group of plaintiffs in this case.

Arizona is in the 9th Circuit, where a court of appeals panel heard arguments in marriage equality cases from other states just days before Sedwick’s ruling.  He pointed out that early in 2014 a 9th Circuit panel had ruled that sexual orientation discrimination claims require heightened scrutiny, and the full court had denied en banc review.  He rejected the state’s argument that Arizona’s marriage  law does not discriminate because of sexual orientation, observing that “the reason why couples such as McQuire and Martinez may not marry is precisely because of their sexual orientation.  He rejected the state’s contention that its marriage law was not intended to discriminate against same-sex couples.  “Accepting that as true,” he wrote, “it does not alter the fact that the laws do discriminate.  Evidence of malignant intent might support a higher standard of review, but defendants do not explain why its absence necessarily forecloses use of a higher standard.”  He derided as “circular” the state’s argument that the marriage law was “based upon a biological difference which reflects society’s interest in the capacity to create children” so should not be subjected to heightened scrutiny, pointing out that there is now circuit court authority from the 4th and 10th circuits holding that “marriage laws which discriminate between heterosexual couples and homosexual couples infringe a fundamental right,” so heightened scrutiny would apply in any event.

The state also argued that the 9th Circuit’s heightened scrutiny precedent did not reach the circumstances of this case because it relied on Windsor, in which the Supreme Court did not specify a heightened standard for review for cases “involving laws with a disparate impact on same-sex couples.”  He found this argument unpersuasive, finding that it was as reasonable to infer that Windsor “does imply used of a heightened standard of review in the case before this court as to infer the opposite, and, quoting the 9th Circuit, “there can no longer be any question that gays and lesbians are no longer a group or class of individuals normally subject to rational basis review.”

“Given the wealth of case law holding that state prohibitions on same-sex marriage violate the Constitution,” Judge Sedwick concluded on this point, “the court concludes that McQuire is likely to prevail on the merits.  He also found that McQuire would suffer irreparable injury in the form of dignity harm and the violation of his constitutional rights if Sedwick did not order the state to recognize the marriage for purposes of the death certificate.

However, he rejected McQuire’s example of economic harm in the form of loss of eligibility for social security survivor’s benefits and vetererans’ survivor benefits.  Although the men had lived together as a couple for many years, their actually marriage did not even last two months before Martinez died.  As a result, Judge Sedwick concluded, McQuire could not qualify for spousal benefits because the relevant regulations and statutes require a longer period of legal marriage as a qualification for the benefits.  A couple must be married for at least nine months for a surviving spouse to succeed to social security benefits at the rate received by the decedent, and the qualification period is one year for Veterans’ benefits.   Sedwick did not specifically consider arguments that might be made to persuade federal authorities to award benefits were McQuire to apply for them, and surely there would be equitable arguments to be made.  But that did not really matter to the outcome, because he found that the amount of harm McQuire would suffer from the denial of a proper death certificate was sufficient to support issuing an order in this case.

The state had argued that the balance of harms weighted toward denying relief, but Sedwick disagreed.  He pointed out that the requested order extended only to the issue of the death certificate, and his ruling would be confined to one plaintiff, Mr. McQuire. “Because McQuire’s irreparable harm inheres in a claimed violation of the Constitution — a violation which he is very likely to establish — and because the injunctive relief sought is limited to a single individual, it cannot be said that the balance of the equities favors defendants,” he wrote.  Finally, he concluded that it was probable that the public interest would be advanced by granting relief to the plaintiff.  “Conversely,” he wrote, “it is probable that the public interest would be harmed if no such relief were provided.”

Thus, Judge Sedwick issued an order temporarily restraining Arizona officials from enforce the Arizona Marriage Amendment and statutory marriage laws “and any other Arizona law against recognition of the marriage of Fred McQuire to George Martinez,” and specifically order the prompt issuance of an appropriate death certificate recording Martinez as “married” and identifying McQuite as his surviving spouse.

Such recognition of the marriage does not necessarily mean that McQuire will qualify for the higher level of social security benefits that Martinez’s surviving spouse should receive or the Veterans’ benefits that Martinez earned for his surviving spouse through his military service.  This will turn on the degree of stringency with which federal officials decide to enforce the timing requirements in light of the circumstances of this case.  A ruling on such a pre-trial motion by a district court is not precedential outside the parties to the case.  But the ruling seemed an advance confirmation, if such were needed, that Judge Sedwick is highly likely to rule for the plaintiffs on the merits, if the 9th Circuit does not beat him to the punch by issuing a decision on the Idaho and Nevada cases that would be a binding precedent on Sedwick and the parties in this case.

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3rd Circuit Rejects Constitutional Challenge to New Jersey’s Ban on “Conversion Therapy” for Gay Minors

A unanimous three-judge panel of the Philadelphia-based U.S. 3rd Circuit Court of Appeals decisively rejected a constitutional challenge to a New Jersey law that prohibits licensed therapists from performing “sexual orientation change efforts” (SOCE) – sometimes called “conversion therapy” — on persons under 18 years of age.  The court rejected arguments that the law violates the freedom of speech and free exercise of religion of the therapist, in a September 11 opinion by Circuit Judge D. Brooks Smith, who was appointed by George W. Bush. The other judges on the panel were Thomas Vanaskie, appointed by Barack Obama, and Dolores Sloviter, a senior judge appointed by Jimmy Carter.  The case is King v. Governor of the State of New Jersey, 2014 U.S. App. LEXIS 17545.

The measure was signed into law last year by Governor Chris Christie.  It provides that a person who is licensed to provide professional counseling “shall not engage in sexual orientation change efforts with a person under 18 years of age,” such efforts including any attempt to “change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.”

The law is not intended to forbid counseling to assist people in determining whether they should undergo gender reassignment, or counseling intended to assist a person in adjusting to their sexual orientation or gender identity or seeking to avoid unlawful conduct or unsafe sexual practices.  The law does not impose any specific penalties, but by expressing public policy against SOCE may provide the basis for professional sanctions, loss of professional license, or perhaps liability towards people harmed by SOCE.  The law does not prohibit licensed counselors from expressing their views about such therapy; they are just prohibited from providing the actual therapy.

This is one of several lawsuits on the issue of SOCE pending in New Jersey.  This case was brought by therapists and organizations supporting their right to perform such therapy, another case was brought by some patients and their parents, and a third, pending in the state court, was brought by some people whose parents signed them up for SOCE and who are seeking damages from the therapists under New Jersey’s consumer protection laws, claiming that the practitioners fraudulently claimed to be able to change their sexual orientation and subjected them to therapy that caused mental and emotional harm.

The New Jersey law was modeled on a California statute that had also been unsuccessfully challenged by some therapists.   Last year, the U.S. Court of Appeals for the 9th Circuit ruled, in a case called Pickup v. Brown, that the California law did not violate the 1st Amendment rights of the therapists.  U.S. District Judge Freda Wolfson, following the reasoning of the 9th Circuit decision, ruled similarly in this New Jersey case.  The appeals court agreed with Judge Wolfson’s conclusion, but adopted a different analysis of the 1st Amendment free speech issues.

Like the 9th Circuit, Judge Wolfson concluded that the statute regulates conduct, not speech, and did not have enough of an “incidental effect” on speech to require any more than a rational basis in order to be upheld.  Judge Wolfson’s ruling was premised on the longstanding authority of the government to regulate the provision of health-care through the licensing of health care professionals.  She also rejected the therapists’ claim that the law violated their right to free exercise of religion, finding that it was a “neutral law” that never referred to religion or religious beliefs and thus the therapists could not claim a religious exemption, even if there was some incidental burden.  As for rationality, Judge Wolfson found that New Jersey had a legitimate interest in protecting minors from harm, and that the legislature considered sufficient evidence about harm.

Judge Smith rejected Wolfson’s conclusion that the law only regulates conduct.  His analysis was premised on an agreement by all parties that “modern-day SOCE therapy, and that practiced by Plaintiffs in this case, is ‘talk therapy’ that is administered wholly through verbal communication.”  In a footnote, he explained that “prior forms of SOCE therapy” had included non-verbal “aversion treatments,” including induced nausea and vomiting or paralysis, electric shocks, or “having the individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic images or thoughts,” but he reported that the plaintiffs considered such techniques “unethical” and had asserted that no ethical licensed professional had used them “in decades.”  This was an interesting contention, inasmuch as a recent opinion in the state consumer protection case details plaintiffs’ allegations about some non-verbal therapies that are still used by at least some SOCE practitioners in New Jersey, including the elastic band technique.

Be that as it may, the restriction of the plaintiffs’ brand of SOCE to ‘talk therapy’ led the court to conclude that the state was not just regulating conduct.  To the court, this appears to be content-based regulation of speech, thus requiring a higher level of judicial review than the deferential rational basis approach.  Smith’s opinion devoted several pages of analysis to determining exactly how such speech regulation should be evaluated, before concluding that it should received the same level of protection that is afforded to commercial speech.

Political speech enjoys the highest level of protection, and cannot be restricted unless the government show a carefully-tailored rule designed to achieve a compelling interest, usually involving national security or the prevention of imminent criminal acts.  Commercial speech, by contrast, can be restricted to advance important governmental interests, such as consumer protection or public health.  For example, the government can forbid false advertising or advertising of dangerous products, such as cigarettes or alcoholic beverages.  Commercial speech is subject to heightened scrutiny, the standard that the court decided should be applied to the “professional speech” at issue in this case.  Judge Smith ultimately concluded that the legislature’s findings, based on testimony and resolutions by reputable professional organizations, provided sufficient justification for the law to survive the heightened scrutiny standard.

“We conclude that New Jersey has satisfied this burden,” wrote Smith.  “The legislative record demonstrates that over the last few decades a number of well-known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressing serious concerns about its potential to inflict harm.  Among others, the American Psychological Association, the American Psychiatric Association, and the Pan American Health Organization have warned of the ‘great’ or ‘serious’ health risks accompanying SOCE counseling, including depression, anxiety, self-destructive behavior, and suicidality.  Many such organizations have also concluded that there is no credible evidence that SOCE counseling is effective.”

Smith observed that legislatures are “entitled to rely on the empirical judgments of independent professional organizations that possess specialized knowledge and experience concerning the professional practice under review, particularly when this community has spoken with such urgency and solidarity on the subject.”  He rejected the plaintiffs’ contention that there was not “conclusive empirical evidence regarding the effect of SOCE counseling on minors,” finding that the legislature “is not constitutionally required to wait for conclusive scientific evidence before acting to protect its citizens from serious threats of harm.”

The court rejected the plaintiffs’ argument that the state could adequately deal with any problem by imposing an “informed consent” procedure.  Finding that minors are an “especially vulnerable population” who might feel pressured to consent to SOCE by their families “despite fear of being harmed,” the court concluded that the state could properly have found that such a consent requirement was not adequate to deal with the problem.  The court also rejected the plaintiffs’ rather odd argument that the statute was unduly vague, pointing out that the individual and organizational plaintiffs had use the terms in the statute many times to describe their activities and had no doubt what the statute was prohibiting.

As to the religious freedom argument, the court agreed with Judge Wolfson that this law is neutral on its face regarding religion, and the court rejected the plaintiff’s argument that despite this surface neutrality it was somehow targeted at licensed professionals who held particular religious views.  There was no “covert targeting” of religion in this law, even if many of the SOCE practitioners are religiously motivated in providing the therapy.

The court also upheld Judge Wolfson’s conclusion that the therapists were not entitled to represented the interests of their patients in this case.  Patients could represent their own interests, as they have done in filing another case challenging the law which has thus far been unsuccessful.  The court also approved Judge Wolfson’s decision to allow Garden State Equality, a New Jersey state-wide gay rights organization, to intervene as a defendant in the case.

The appeal by the plaintiffs was argued by Matt Staver, Dean of Liberty University Law School and a prominent anti-gay activist on behalf of Liberty Counsel.  Susan M. Scott of the New Jersey Attorney General’s office defended the statute, together with David S. Flugmann representing Garden State Equality in collaboration with the National Center for Lesbian Rights.  The court received numerous amicus briefs on both sides of the case, including from Alliance Defending Freedom, the anti-gay religious litigation organization, supporting plaintiffs, and Lambda Legal, supporting the constitutionality of the statute.

Given the nature of this litigation, it is likely that the plaintiffs will seek en banc review in the 3rd Circuit and/or petition the Supreme Court to review the case.  The lengthy discussion of the freedom of speech issue by Judge Smith made clear that there is not a consensus among the circuit courts of appeals about how to deal with state regulation of professional speech, and the Supreme Court has not spoken with perfect clarity on the issue.  Now that anti-SOCE statutes have survived judicial review in two circuits and similar bills are pending in many state legislatures (including New York’s), the Supreme Court might be persuaded that a national precedent would be appropriate.

 

 

 

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Magistrate Denies HIV-Positive Gay Discrimination Plaintiff’s Request to Sue Anonymously

U.S. Magistrate Judge Joseph C. Wilkinson, Jr., has denied a request by a gay HIV-positive man to have his identity shielded from public exposure in the discrimination lawsuit he has filed against his former employer in the federal district court in New Orleans, Louisiana.

According to Wilkinson’s September 5 ruling on a motion filed by the plaintiff simultaneously with his discrimination complaint, the plaintiff is claiming violations of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, and the Americans with Disabilities Act, which prohibits employment discrimination against qualified individuals with disabilities.  His motion states that he “is an HIV positive homosexual male with an understandable fear that if his health status is made public, it will negatively affect his life in multiple ways.”  “The only specific concern expressed in plaintiff’s motion papers,” wrote Wilkinson, “is that he ‘believes . . . he will have difficulty finding new employment should his HIV status be made public.”

Wilkinson pointed out that the general rule is that parties to a lawsuit have to sue in their own name.   In fact, the Federal Rules of Civil Procedure state that “the complaint of the title of the action shall include the names of all the parties” and, Wilkinson further notes, Title VII does not establish any exception to this general principle.  Plaintiffs are not automatically entitled to proceed anonymously, although courts sometimes exercise their discretion to allow a particular plaintiff to proceed as “John Doe” or “Jane Roe.”  Perhaps the most famous example is the Supreme Court’s leading abortion case, Roe v. Wade, in which the trial court accepted the plaintiff’s argument that due to the controversy about criminal abortion laws and her own situation as an unmarried pregnant woman when she filed the case challenging the Texas law, she should be able to proceed as “Jane Roe.”

Complaints filed in federal court are deemed to be public records that are open to the inspection of the public.  When cases are deemed newsworthy, it is very common for news reporters to look at court files and publish the names of parties in reports about their cases.  The plaintiff in this case did not want to be forced to “out” himself as both gay and HIV-positive in order to be able to vindicate his rights in federal court.

The plaintiff cited a 1979 decision by the 5th Circuit Court of Appeals, which identified “homosexuality” as one of the “matters” that might justify allowing a plaintiff to file anonymously, but that case was decided when “homosexual sodomy” was a crime in Texas.  Then, as now, neither Texas nor federal law provided explicit protection against discrimination because of sexual orientation.  In the case cited by the plaintiff, which did not involve homosexuality, the 5th Circuit denied a motion filed  by sex discrimination plaintiffs  who were concerned that their suit would make them vulnerable to retaliation by their present employer or prospective future employers, because they did not show that they would face a “greater threat of retaliation than the typical plaintiff alleging Title VII violations.”

Wilkinson asserted that the court’s record is “presumptively a public record, open to view by all, and requests to seal the court’s record are not lightly granted or considered.”  He said that he would have to balance the public’s “common law right of access against the interests favoring non-disclosure,” and that the plaintiff would bear the burden to show that the interest in secrecy outweighs the presumption.”

“Weighing these factors in the instant case militates against permitting this plaintiff to proceed anonymously,” wrote Wilkinson.  “Although sexual preference is certainly a personal matter and homosexuality is one of the ‘matters of a sensitive nature’ identified in the above-cited Fifth Circuit opinion, public opinion about both homosexuality and HIV positive status has become more diverse and accepting during the 35 years since that decision.  Certainly, only the seriously uninformed today act under the erroneous impression that HIV transmission might occur in ordinary workplace activity.  Other plaintiffs asserting claims in civil actions in which their sexual preference is an issue have done so publicly and in their real names,” he continued, citing the current lawsuit challenging Louisiana’s ban on same-sex marriage.  “The plaintiff in the instant case is not challenging the validity of any governmental activity and will not have to admit violation of any laws or governmental regulations in pursuing these claims.  He is not a child or incompetent person requiring extraordinary protection.  Defendants — whose names have already been published in the court’s record — have been the subject of public accusations by plaintiff that may do damage to their good names, reputation and economic standing.”

Wilkinson also said that the “legal bases” for the plaintiff’s claims under Title VII and the ADA “are subject to debate.”  Most federal courts have rejected the argument that discrimination because of sexual orientation is covered by the Title VII ban on sex discrimination, and lower courts are divided about whether an HIV-positive person would automatically be protected from discrimination under the ADA without specific evidence of physical or mental impairment. “The public interest in and level of debate over these kinds of topics appears high,” wrote Wilkinson.

The judge concluded that the plaintiff would not face any “greater threat of retaliation than the typical plaintiffs alleging Title VII violations under their real names and not anonymously,” so the plaintiff’s motion to “proceed under a fictitious name or, alternatively, to seal the entire record of this case” was denied.

The court’s opinion shows a particular insensitivity to the vulnerability of HIV-positive individuals, regardless of their sexual orientation, seeking a remedy for employment discrimination.  While it might be true that “outing” oneself as gay is not quite such a big deal as it was 35 years ago, it is nonetheless a significant and terrifying step for many people, and studies show that anti-gay employment discrimination is still a major issue.

Furthermore, the court’s ruling is completely insensitive to the particular issues presented by the Americans with Disabilities Act, a statute that recognizes the confidentiality concerns of people living with disabilities by requiring employers to preserve the confidentiality of medical records and not unnecessarily disclosing the medical conditions of their employees.  Thus, the judge’s focus solely on Title VII presents an incomplete analysis of the factors to be weighed.

The judge reveals his own ignorance about the nature of HIV-related discrimination, which is not confined to fears of contagion in the workplace.  Employers may fear the impact on co-worker morale of having a colleague who is known to be living with HIV, as well as the potential impact on its employee benefits plan of covering HIV-related medication.  Employers may also believe that a job applicant with HIV will have a poor attendance record, or will not be employed long enough to justify the investment in training for a new job.  There might be many reasons why employers would discriminate against applicants known to be HIV-positive.

A decision requiring an HIV-positive person to disclose his or her serostatus in a public record as a condition of seeking redress for discrimination seems inconsistent with the remedial policy behind the ADA, since it could strongly discourage HIV-positive people with potentially valid claims from filing suit.  It is particularly inconsistent with the 2008 ADA Amendments Act, which was intended by Congress to make clear that HIV-positive people are protected against discrimination, regardless what some uncomprehending federal trial courts have held.

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9th Circuit Panel Dubious About Idaho and Nevada Justifications for Marriage Ban

The San Francisco-based 9th Circuit Court of Appeals panel that heard oral arguments on September 8 in marriage equality cases from Idaho, Nevada and Hawaii appeared to be very dubious about the justifications presented by Idaho and Nevada for their bans on same-sex marriage.  The Hawaii case focuses on a different issue: whether the district court’s ruling against marriage equality is “moot” because the Hawaii legislature passed a marriage equality law last year, and thus whether the lower court’s decision should be vacated and excluded from having any further significance as a ruling.

The outcome in the Idaho and Nevada appeals seems almost pre-ordained at this point.  Two of the judges on the panel, Stephen Reinhardt and Marsha Berzon, made up the majority of a 9th Circuit panel that ruled in January that sexual orientation discrimination claims merit heightened scrutiny, thrusting the burden on the state to show that its challenged policy significantly advances an important state interest.  Judge Reinhardt wrote the opinion for the 9th Circuit panel that struck down California Proposition 8 back in 2012.  And the third judge on the panel, Ronald Gould, was on a panel that issued what could be characterized as a pro-gay ruling in a challenge to the “don’t ask, don’t tell” military policy prior to its repeal by Congress.  Judges Berzon and Gould were appointed to the court by President Bill Clinton, and Judge Reinhardt was appointed by President Jimmy Carter.

Idaho and Nevada were both represented by the same attorney, Monte Stewart, who stumbled a few times during his second argument period, referring to Idaho when he meant Nevada, prompting Judge Gould to joke about the perils of arguing for two different clients on the same date.  Stewart’s argument was essentially the same for both cases, although the distinctly different situations in the two states required some fancy footwork on his part to try to rationalize their positions.  Stewart’s argument was that the state’s definition of marriage plays an important function in “messaging” to society the state’s policy preferences and the conduct it wants to encourage.  In this case, he argued, the state’s concern is to send a message that it is very valuable to the child born to heterosexual couples that their parents be married so that they can be raised in a stable household with both a mother and a father.   He referred repeatedly to a the “child’s bonding right” which he defined as the right of a child to bond with both of its biological parents.  Stewart professed particular concern about the problem of children being raised by single mothers, and the particular harm this would have to boys being raised without a father, but he also alluded to the problem of motherlessness during his argument.  He was challenged by Judge Gould during the Nevada argument to explain the “derivation” of this right, where it is based in the constitution, and he was forced to admit that he had invented the term as a shorthand for his messaging argument and did not contend that it was a positive constitutional right.

Stewart repeatedly referred to “genderless marriage,” a state marital regime in which the couples might be either same-sex or opposite-sex, as sending a message that gender does not matter and that it is not important to the welfare of the child that it have a chance to “bond” with parents of both sexes.  His argument rested entirely on speculation, and in both arguments he referred to the state’s “crystal ball” in which it foresaw harmful consequences for future generations if the message sent by state endorsement of traditional marriage was abandoned.  He asserted that it was the prerogative of the state legislature, in its traditional role as the determiner of state family policy, to legislate based on its prediction of consequences.

When confronted by Judge Berzon, the most persistently engaged questioner, and then Judge Reinhardt, with the need for the state to show that allowing or recognizing same-sex marriages would cause the increase in “fatherlessness” that Stewart insisted the states had a compelling interest to prevent, Stewart had nothing to fall back on except the “federalism” argument, although he didn’t use that word.  He referred to Justice Anthony Kennedy’s opinion for the Supreme Court in the DOMA case last year, in which Kennedy went on at length about the traditional role of the states in deciding who could marry.

There are important differences between the two states.  In Idaho, there is a broad constitutional amendment that bans not only same-sex marriage but also civil unions and domestic partnerships, providing no mechanism for same-sex couples to form a legally recognized relationship.  In Nevada, by contrast, the state has a narrower marriage amendment, and the legislature adopted a broad domestic partnership law under which same-sex couples have virtually the same rights as different-sex couples concerning parenting and relationships with children.  Thus, the difficulty for Stewart in explaining how his “messaging” argument fared in a state that had undermined the message by adopting domestic partnerships.  The Idaho amendment presents the broader target for the plaintiffs by denying no rights or recognition whatsoever, but the Nevada amendment, in combination with the state’s partnership law, undermines the family policy arguments by allowing the very rights underlying Stewart’s “message” argument.  In the end, one suspects the court will find the inconsistencies overwhelming.

Deborah Ferguson, a former Assistant U.S. Attorney who is now in private practice, argued for the plaintiffs in the Idaho case, and Tara Borelli, a staff attorney at Lambda Legal, argued for the plaintiffs in the Nevada case.  Ferguson was defending a pro-marriage-equality ruling by the district court in Idaho, while Borelli was appealing an adverse ruling by the district court in Nevada that was issued in 2012 before the Supreme Court had invalidated the federal marriage recognition ban in DOMA.  Despite the different posture of the plaintiffs in both cases, the post-DOMA litigation record, now including pro-marriage equality rulings from the courts of appeals in the 4th, 7th and 10th Circuits, put them in the stronger position.  Even though Stewart had tried to craft an argument that would seem somehow new or different from the arguments that were rejected over the past several months by three other circuit courts, he was clearly straining to do so.

From their questions, it appeared that the judges were most concerned with how they were going to rule for the plaintiffs rather than whether they were going to rule for the plaintiffs.  The other circuits have reached the same results but followed different legal paths to get there.  The 4th (Virginia) and 10th (Utah and Oklahoma) circuits have treated these as fundamental rights cases, finding that the states had failed to present a compelling argument for depriving same-sex couples from access to the fundamental right to marry, and had avoided the need to determine what level of judicial scrutiny to apply to an anti-gay state policy.  The 7th Circuit (Indiana and Wisconsin), by contrast, signaled concern during oral argument about the difficulty of circumscribing a fundamental marriage right without endangering laws against polygamy and incest, and instead followed the equal protection route, finding that the state had not provided any rational basis for adopting a policy that discriminates against a group of people defined by an immutable characteristic (sexual orientation) that has been the target of severe social and governmental hostility.  The 7th Circuit’s opinion, by Judge Richard Posner, had employed his usual economic analysis to contrast the harms inflicted by the marriage ban with the minimal, if any, benefits to society or the state derived from banning same-sex marriage.  If the harms generated by a policy significantly outweigh the benefits it may produce, then Posner would question the rationality of the legislature that passed such a law.

Judge Reinhardt cut to the chase during Ferguson’s argument, asking whether the plaintiffs cared which legal argument the court used, so long as the plaintiffs won.  Ferguson had the wit to give the shortest possible answer: “No.”  That brought a wave of laughter in the courtroom. But she quickly followed up by contending that the fundamental right and equal protection arguments were “both important and related” and were both “squarely presented to the court” in this case.  She urged the court to rule on both grounds.

Another point of contention arose when Stewart argued that the 9th Circuit’s decision in January finding that heightened scrutiny applied to a sexual orientation claim was not relevant to this case.  He premised this on his argument that Idaho and Nevada adopted their marriage bans not out of anti-gay bias or animus but because the states wanted to incentivize heterosexual couples to marry if they intended to raise children and feared that allowing same-sex marriage would send the “wrong” message to such couples, devaluing the importance of “man-woman” marriage.  He suggested that the DOMA case, on which the 9th Circuit panel had relied in applying heightened scrutiny, rested on Justice Kennedy’s finding that Congress adopted DOMA in 1996 out of anti-gay animus, and so it would be inappropriate to apply heightened scrutiny in cases that didn’t involve such animus.

Anybody who lived through the ballot initiative campaigns in states that adopted marriage amendments during the last decade would undoubtedly gag at the assertion that there was no animus involved in those votes, but apart from District Judge Vaughn Walker in the Proposition 8 case in California, the courts have generally been loath to attribute anti-gay animus to voters who supported the marriage amendments.  Indeed, Circuit Judge Jerome Holmes in the 10th Circuit wrote a concurring opinion insisting that there was no evidence of animus in the adoption of the Oklahoma marriage amendment and that animus had nothing to do with that court’s determination that the amendment was unconstitutional.  But Judge Posner, the empiricist who refuses to indulge in legal fictions, blasted this one out of the water in his opinion for the 7th Circuit, insisting that anti-gay legislation is an expression of hate, pointing to the “savage” discrimination that gay people had endured for generations.  It’s difficult to know where the 9th Circuit panel will go with this.  Borelli noted in her argument that the state’s justifications were notably absent from the legislative history of these marriage bans, having been apparently manufactured after the fact for purposes of the litigation.  If heightened scrutiny applies, such post-hoc rationalizations are not to be considered by the court.

Judge Berzon said that she was “mystified” that so far the courts deciding marriage equality cases have not focused on the issue of sex discrimination, since she found this case to involve sex discrimination in the same way that Loving v. Virginia, the interracial marriage case, involved race discrimination. Even though there was “equal application” of the prohibition, the Supreme Court ruled in Loving that the law would still fall to an equal protection challenge due to the legislature’s racial motivation.  The first American appellate court to rule in a marriage case, the Hawaii Supreme Court in 1993, had conceptualized it as a sex discrimination case, adopting the Loving v. Virginia reasoning, but very few courts have done so since then.  Ferguson responded to Berzon’s musing by pointing out that over time society has so removed the legal distinctions between husbands and wives to produce spousal equality that there remains little basis for contending that there are distinct sex roles in marriage.  Both Ferguson and Borelli noted the underlying reliance on sex stereotyping of parental roles in the states’ arguments that a child must have one parent of each sex in order to have an optimal family situation.  One suspects that if Judge Berzon ends up writing an opinion in this case, there will be some discussion of sex discrimination, at least as an alternative to the other main theories of sexual orientation discrimination or fundamental right to marry.

If there is any suspense about what the 9th Circuit will do with the Idaho and Nevada cases, it is whether the court will decide this as a fundamental rights case or a discrimination case, or following the lead of some of the trial court opinions, ruling in the alternative on both theories.  But, as Judge Reinhardt’s questioning signaled, in the long run it makes little difference. The Supreme Court will probably decide this issue during its 2014-15 term, and both theories will be fully explored in the briefs and oral arguments.  When Stewart argued based on Justice Kennedy’s opinion in another case that he would support the state’s right to decide who could marry, Reinhardt, acknowledging that ultimately the Supreme Court will decide the issues in this case, said, “You’ll have an opportunity to find out what Justice Kennedy really thinks.  You’re speculation is as good as ours.”  Stewart comment, “We all know this will be decided on step up,” and Reinhardt added, “and we know by whom,” channeling the general supposition that a Supreme Court marriage equality ruling will likely be a 5-4 decision with the deciding vote cast by Justice Kennedy.

As to where things stand at the Supreme Court, the Virginia and Oklahoma cases are now listed for potential discussion at the Court’s first conference of the new term on September 29, so we may know within the next few weeks whether the Court will definitely take a marriage equality case this term.  Within the next week or so the Utah case may also be added to that agenda as briefs continue to be filed with the Court in response to the petitions that are now on file.  Virginia filed new papers suggesting that the Court grant all the petitions from various parties in the Virginia case so that everybody with a stake there can be heard.  Indiana’s Attorney General announced on September 8 that he will file a petition for Supreme Court review, bypassing any request to the 7th Circuit for reconsideration by a larger panel of judges, although it seems unlikely that all the papers will be on file in time to include the 7th Circuit ruling in the Court’s September 29 conference.

The Hawaii argument was rather peculiar, an interesting footnote.  A district judge had ruled against marriage equality prior to the DOMA case, and private counsel representing the plaintiffs had filed an appeal in the 9th Circuit, but the appeal just sat there while the Hawaii legislature, revising its views in the post-DOMA climate, passed a marriage equality law last year that went into effect in December 2013.  The 9th Circuit then asked the parties whether the case was moot.  But meanwhile litigation was initiated by marriage equality opponents in both the federal and state courts in Hawaii, contesting the authority of the legislature to pass the law in light of the Hawaii Marriage Amendment adopted in reaction to marriage litigation in the 1990s.  Their contention is that the legislature could not pass a law authorizing same-sex marriage unless the amendment was repealed.

This argument, characterized by Clyde Wadsworth, attorney for the plaintiffs, as bordering on frivolous, clearly misrepresents the text of the Hawaii marriage amendment and the legislative deal that led to its enactment.  Unlike state marriage amendments in other jurisdictions, the Hawaii marriage amendment was not intended to ban same-sex marriage, but rather to take the question whether same-sex couples could marry out of the courts and to put it in the exclusive authority of the political process.  The amendment provides that only the legislature can decide whether same-sex couples can marry.  That’s what the legislature did last year; it decided to amend Hawaii’s marriage laws to allow same-sex couples to marry, having just a few years previously adopted a civil union law.  The anti-marriage group was tossed out of federal court on standing grounds, and the state trial court dismissed their lawsuit for failure to state a plausible legal claim, but the Hawaii Supreme Court has agreed to hear their appeal.  Ken Connelly, the lawyer arguing on behalf of this group, Hawaii Family Forum, urged the court to keep  the appeal “on hold” rather than to declare the case moot and vacate the district court’s order.

Connelly’s rationale was that if the Hawaii Supreme Court rules in favor of his clients, the ban on same-sex marriage will be restored in Hawaii and the question whether the district court’s decision was correct would once more be a live question for the 9th Circuit to decide.  He contended that if the 9th Circuit now dismisses the appeal as moot and vacates the district court’s opinion, the plaintiffs would have to go back and start a new case “from scratch” to attack the constitutionality of the marriage ban in federal court all over again.  On the other hand, he contended, letting the appeal sit a few months longer would obviate that intermediate step.

The court seemed puzzled at times by his argument, which almost seemed like it should be made by the attorneys for the plaintiffs, who would be the ones inconvenienced if they had to start a new lawsuit in response to a decision by the Hawaii Supreme Court.  But Wadsworth insisted that the plaintiffs wanted the appeal dismissed as moot and the trial court decision vacated.  He pointed out that under 9th Circuit precedents, a repeal of the challenged statute mooted the case, and it should be dismissed unless it was very likely that the legislature would respond to a dismissal be re-enacting the challenged statute.  In light of developments in Hawaii over the past year, there seems little likelihood of that happening.  Furthermore, as Judge Berzon pointed out, the court’s decision in the Nevada and Idaho cases would be binding on the district court in Idaho, and ultimately the Supreme Court is going to decide the issue, probably in 2015, so what purpose is served be keeping the Hawaii appeal “on hold”?

Ultimately the court might buy into Connelly’s argument that “holding” the appeal harms nobody and might be beneficial, but that would mean accepting his contention that his client might win their appeal in the Hawaii Supreme Court, which is a slender reed on which to premise such action in light of the unambiguous text of the Hawaii Marriage Amendment.

The 9th Circuit is likely to proceed quickly on the Nevada and Idaho cases, aware of the clock ticking at the Supreme Court and the likelihood that if they dally their case will turn into a side-show.  Judge Reinhardt, in particular, seemed quite eager to rule for plaintiffs as expeditiously as possible, and there were no obvious signs of resistance from his colleagues.

 

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Unanimous 7th Circuit Panel Strikes Down Wisconsin and Indiana Same-Sex Marriage Bans

Less than two weeks after roughing up attorneys for the states of Wisconsin and Indiana in a heated oral argument, a three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit issued a unanimous decision in Baskin v. Bogan, 2014 WL 4359059  (September 4, 2014), striking down the bans on same-sex marriage in those states.  Writing for the panel, Circuit Judge Richard Posner, one of Ronald Reagan’s earliest judicial appointees in 1981, decisively rejected all the states’ arguments in support of their anti-marriage laws, stating that “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”

With stays pending appeal in effect in both states, the 7th Circuit ruling did not effect any immediate practical change.  Both states promptly signified that they would petition the Supreme Court for review.

Judge Posner’s forty-page opinion was telegraphed by his questioning during the oral argument, for the issues that he raised and pressed repeatedly dominate his written analysis.  His first questions to the attorney for Indiana concerned the welfare of children — the children being raised by same-sex couples in Indiana whom the state prohibits from marrying and whose out-of-state marriages are denied legal recognition.  And his opinion starts in much the same way: “Formally these cases are about discrimination against the small homosexual minority in the United States.  But at a deeper level, as we shall see, they are about the welfare of American children.  The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.  Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”

During the oral argument, all three judges on the panel (Posner being joined by Obama appointee David Hamilton and Clinton appointee Ann Claire Williams) were skeptical about treating this as a “fundamental right to marry” case, expressing concern about how such a right could be described in a way that would not open up arguments about a constitutional right to polygamy or incest.  Unlike the panel majorities in the 4th and 10th Circuits, who based their marriage equality rulings on the fundamental rights theory, the 7th Circuit panel preferred to take the equal protection route.  That yielded a double hit from this opinion: Not only did the court hold that the states had no rational basis for denying marriage to same-sex couples, but it also ruled, in line with a decision earlier this year by the San Francisco-based 9th Circuit, that claims of anti-gay discrimination by the government are subject to heightened scrutiny, placing the burden on the government to show that its discriminatory law significantly advances an important government policy.

Most importantly, however, Posner’s opinion for the panel is sheer fun to read because of his plain-speaking, cut-through-the-cant style of dealing with ridiculous arguments.  When he finds an argument ridiculous, he does not politely abstain from commenting, in the manner of some of his more restrained judicial colleagues.  He cuts to the chase and calls ‘em as he sees ‘em.  Herewith some choice examples:

“Our pair of cases is rich in detail but ultimately straight-forward to decide.  The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”

“Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”

“It is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.  Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it — except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson to reject them. . .  Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.  Subsequent decisions such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative.  At least we think they’re distinguishable.  But Justice Scalia, in a dissenting opinion in Lawrence, joined by Chief Justice Rehnquist and Justice Thomas, thought not.  He wrote that ‘principle and logic’ would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.”

Nothing like enlisting Scalia on your side in a gay rights decision. . .

After extensively criticizing Indiana’s “channeling-procreation” argument and pointing out its inconsistency with the state’s convoluted rules concerning marriages between elderly first cousins, Posner focused on the “irresponsible procreation” argument, and observed:  “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combinations of sticks and carrots) to marry, but that gay couples, unable as they are to produced children unwanted or wanted, are model parents — model citizens really — so have no need for marriage.  Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

He also points out that if Indiana and Wisconsin are trying to reduce out-of-wedlock births by denying marriage to same-sex couples, their strategy is not working, citing statistics showing the rate of children born in such circumstances went up in each state after they adopted explicit bans on same-sex marriage.  He also pointed out that gay couples are more likely to adopt children than straight couples, and many of those children will be the out-of-wedlock children surrendered for adoption by single mothers.  “If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason,” he wrote, “this should be true whether the child’s parents are natural or adoptive.  The state’s lawyers tell us that ‘the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.’ Why the qualifier ‘biological’?  The state recognizes that family is about raising children and not just about producing them.  It does not explain why the ‘point of marriage’s associated benefits and protections’ is inapplicable to a couple’s adopted as distinct from biological children.”

He suggested that letting same-sex couples raising adopted children marry would provide emotional comfort to their children.  “Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).  Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.  If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple.  Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.”

Judge Posner took apart the argument by Wisconsin’s lawyer that “tradition” justifies the marriage ban.  “Tradition per se has no positive or negative significance,” he wrote.  “There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery,’ bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween).  Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”  He went on to quote the same passage from Oliver Wendell Holmes that the late Justice Harry Blackmun cited in his dissent from the infamous 1986 Supreme Court sodomy case, Bowers v. Hardwick: “Holmes thought it ‘revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”  Posner helpfully added that the English King Henry IV died in 1413.  To show the age of the tradition underlying this marriage ban, he went on to quote Leviticus 18:22, and concluded on this point, “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.”

Responding to Wisconsin’s argument about “thousands of years of collective experience” showing that different-sex marriage is “optimal for the family, society, and civilization,” Posner pointed out that Wisconsin provided no evidence in support of this claim, and then he listed several countries that today allow polygamy, adding, in a little flourish, “parts of Utah.”  “But suppose the assertion is correct?” he asked.  “How does that bear on same-sex marriage?  Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is ‘optimal?’  Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality?  Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?”

As to the contention that allowing same-sex marriage will harm society, Posner pointed to estimates of the gay population ranging from 1.5% to 4%, and concluded: “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.”  He pointed out that the states had provided no evidence that “any heterosexuals have been harmed by same-sex marriage,” and observed that even though some people might be “distressed by the idea or reality of such marriage,” this could not count as a harm that would justify the ban.  Even though many people disapproved of or were offended by interracial marriage and sodomy, the Supreme Court struck down laws against both.

As to the argument by Indiana and Wisconsin that the popularly enacted marriage amendments should enjoy some immunity from constitutional attack, Posner responded: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Although the court found no rational basis for the marriage bans, and thus could have avoided ruling on whether sexual orientation discrimination merits heightened scrutiny, Posner took that issue on, rejecting the states’ arguments that gay people are a political powerful group that needs no help from the courts.  The marriage amendment passed in Wisconsin would surely argue otherwise.  Posner emphasized the history of anti-gay discrimination — which he characterized during oral argument as “savage”, the extensive scientific literature on the issue of immutability, and the lack of relevance of sexual orientation to a person’s ability to contribute to society, finding that all the factors for finding a “suspect classification” applied to sexual orientation.  While not strictly necessary to support the court’s ruling, this finding may be very useful in future cases in the 7th Circuit challenging discriminatory state policies.

With this opinion, three federal courts of appeals have ruled in favor of marriage equality, and it is widely predicted that the 9th Circuit will add to that number after hearing arguments on September 8.  Less certain is the outcome in the Cincinnati-based 6th Circuit, which heard arguments weeks before the 7th Circuit but has yet to issue its opinion.  (Posner is a notoriously fast writer of judicial opinions, and this one bears the hallmarks of haste, including one page where some lines of text seem to have been omitted from the opinion as first released by the court.)  Appeals are now pending in the 5th Circuit, where Texas has appealed a pro-marriage equality ruling and plaintiffs are about to appeal an absurdly reasoned federal anti-marriage ruling from Louisiana.  On the same day the 7th Circuit ruled, Florida Attorney General Pamela Bondi announced that she had filed a notice of appeal with the 11th Circuit from a recent federal court marriage equality ruling in that state.  There will be no marriage equality rulings from the 2nd or 3rd Circuits, as every state in both circuits already allows same-sex couples to marry, either by legislation or court order.  The Boston-based 1st Circuit might still be heard from; even though all the states in the circuit have marriage equality, its jurisdiction also covers Puerto Rico, where a lawsuit challenging the commonwealth’s marriage ban is pending.  The 8th Circuit, where cases are pending in several district courts, has yet to be heard from in the current round of litigation, although it rejected a challenge to Nebraska’s marriage amendment in 2006.   The 7th Circuit’s ruling brings closer the possibility that marriage equality might be achieved nationwide through circuit court opinions without Supreme Court intervention, if that court were to let petitions accumulate and denying them all once the boards have been swept clean.  But one dissenting circuit would virtually guarantee Supreme Court review.

Attorneys from Lambda Legal and the Indiana and National ACLU argued the case for plaintiffs before the 7th Circuit, while the states of Indiana and Wisconsin were represented by the Indiana Solicitor General and a Wisconsin Assistant Attorney General.  It seems likely that the Republican governors of both states will petition the Supreme Court for review, although Wisconsin’s governor has been less outspoken than Indiana’s in opposition to same-sex marriage.  Wouldn’t it be grand if both read Posner’s extremely persuasive opinion and followed the example of Pennsylvania’s Republican governor in dropping further appeals?

 

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Federal Judge Rules Against Marriage Equality in Louisiana

U.S. District Judge Martin L. C. Feldman, appointed to the federal bench by President Ronald Reagan in 1983, has rejected a constitutional challenge to Louisiana’s state constitutional and statutory ban on same-sex marriage.  Parting company from every federal district judge who has decided a marriage equality claim since the Supreme Court’s June 2013 decision striking down a federal ban on the recognition of same-sex marriages, U.S. v. Windsor, Feldman insisted that existing precedents preserve Louisiana’s right to treat this as a political question to be resolved by its voters and elected legislators.  The case is Robicheaux v. Caldwell, 2014 U.S. Dist. LEXIS 122528, a consolidation of two separate cases filed on marriage recognition and the right to marry.

Surprisingly, Feldman did not premise his ruling on the Supreme Court’s 1972 rejection of a marriage equality case from Minnesota, Baker v. Nelson, observing that the state had not sought to defend its marriage ban on that basis.  Instead, Feldman concluded that no fundamental right was at stake, no heightened scrutiny was required under either the Due Process or Equal Protection Clauses of the 14th Amendment, and that Louisiana could meet the rational basis test through two state interests: “linking children to an intact family formed by their biological parents,” and “of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus.”

In effect, although giving lip service to the procreation aspect of the case, Feldman’s opinion is a lengthy salute to Federalism, which, he proclaims, is “not dead.”  He relies, among other things, on the part of Justice Anthony Kennedy’s opinion for the Supreme Court in the DOMA case that focused on the historical role of the state in defining and controlling the institution of marriage.  “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens,” Kennedy had written.  “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘protection of offspring, property interests, and the enforcement of marital responsibilities.’”  Kennedy went on at length on this, which was key to his conclusion that a federal law refusing to recognize state-approved marriages was an unusual intrusion by the federal government into a role traditionally reserved to the states.  To bolster this point, Feldman cited Chief Justice John Roberts’ concurring opinion, arguing that the case was essentially a federalism case that had nothing to say about whether states were required to allow or recognize same-sex marriages.

Turning to the specific equal protection and due process arguments, Feldman pointed out that the Supreme Court had notably refrained from finding that sexual orientation discrimination involves a suspect classification meriting strict scrutiny review, and that existing precedents in the 5th Circuit would use the deferential rational basis test.  He rejected the argument that the Supreme Court’s actual approach in Romer v. Evans, the 1996 case striking down Colorado’s anti-gay Amendment 2, had used some form of heightened scrutiny, or that the subsequent rulings in Lawrence v. Texas, striking down the Texas anti-gay sodomy law or Windsor had used or would require heightened scrutiny.  He also emphasized Justice Kennedy’s statement in his Lawrence opinion that shielding gay relationships from criminal law did not necessarily mean extending legal recognition to such relationships.

Evaluating the standard of judicial review under the Due Process clause, Feldman parted company from most of the other district judges and the majority of judges on the 10th and 4th Circuit Court of Appeals panels in their recent marriage equality decisions from Utah, Oklahoma and Virginia, rejecting the idea that this case was about the “fundamental right to marry.”  Instead, he insisted, it was about a claim to a right for “same-sex marriage.”  As such, he asserted, such a right could not be deemed fundamental because it was not deeply rooted in our history or tradition.  Again, he emphasized Justice Kennedy’s statements in his Windsor opinion about how same-sex marriage was a recent phenomenon.  And, since a fundamental right was not at stake, once again he concluded that this was a rational basis case.

Feldman also rejected the plaintiffs’ argument that the marriage ban discriminated based on gender, requiring heightened scrutiny, relying on Loving v. Virginia, the 1967 Supreme Court ruling striking down a law against interracial marriages.  In that case, the Supreme Court rejected the state’s argument that the statute was not discriminatory because members of both races were equally forbidden from marrying members of the other race.  “Plaintiffs’ argument betrays itself,” he wrote.  “Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.  Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders — whether between two men or two women.  Same-sex marriage is not recognized in Louisiana and is reasonably anchored to the democratic process.  This Court is therefore satisfied that rational basis applies.”

Feldman’s confident assertion is factually inaccurate in one glaring respect.  The 14th Amendment never mentions race — the word never appears — and expressly adopts an equal protection principle without referring to any specific grounds for discrimination.  There is no express ban on race discrimination in the 14th Amendment, although the historical context of its enactment clearly supports the interpretation under which race discrimination is strongly outlawed.  Thus, his statement goes well beyond the dissent in the Oklahoma case that he cites as authority for it.  (Feldman cites frequently to the dissenting opinions in both the 10th and 4th Circuit cases.)

As to the rational basis argument, he wrote, “Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents.  Louisiana’s regime pays respect to the democratic process; to vigorous debate.  To predictable controversy, of course.  The fact that marriage has many differing, even perhaps unproved dimensions, does not render Louisiana’s decision irrational.  Nor does the opinion of a set of social scientists (ardently disputed by many others, it should be noted) that other associative forms may be equally stable, or the view that such judgments vilify a group (even though one finds them in a majority of the states, but not in all states).  Even the fact that the state’s precepts work to one group’s disadvantage does not mandate that  they serve no rational basis.  The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid.”

Feldman also rejected the idea that Louisiana’s democratically approved policy choice “could only be inspired by hate and intolerance.”  Recalling the vigorous public debate over the marriage amendment, he wrote, “All sides for and against grappled with this solemn issue.  The Court declines to assign an illicit motive on the basis of this record, as have also two federal appellate judges as well,” noting the dissenting opinions in the 10th and 4th Circuit cases, and particularly Judge Holmes’ concurring opinion in the Oklahoma case, agreeing with the result but rejecting the idea that the Oklahoma marriage amendment was infected with anti-gay animus.

Judge Feldman also rejected an argument that requiring same-sex couples who married out-of-state to identify themselves as unmarried on their Louisiana tax forms somehow violated their 1st Amendment right against compelled speech.  He pointed out that the 5th Circuit, whose rulings are binding on him, had recently rejected such an argument in U.S. v. Arnold, 740 F.3d 1032 (2014), specifically quoting an 8th Circuit opinion to the effect that “there is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly society.”  The 5th Circuit opinion specifically rejected the claim that required disclosure of information on a tax form is “compelled speech” in violation of the 1st Amendment.

The concluding section of the opinion clearly signals Judge Feldman’s resistance to being stampeded into ruling for plaintiffs based on the accumulation of recent marriage equality opinions.  “This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage.  The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.”  However, he concluded, these courts had stepped outside of their appropriate role and “appear to have assumed the mantle of a legislative body.”  “It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts that have spoken to this pressing issue,” he continued, “if this Court were confident in the belief that those cases provide a correct guide.”  But he has concluded that all of these many courts have misconstrued U.S. v. Windsor.  In any event, he said, the 5th Circuit “has not yet spoken” and ultimately the Supreme Court will have to decide the issue.

Plaintiffs, who are represented by private attorneys not affiliated with gay rights litigation groups, will probably appeal this case to the 5th Circuit, which has recently received an appeal by the state of Texas from a pro-marriage equality ruling rendered there last winter. If the plaintiffs move quickly, it is possible that their appeal could be consolidated with the Texas case for simultaneous hearing before the same three-judge panel.

Meanwhile, rulings are anticipated from the U.S. Courts of Appeals for the 6th and 7th Circuits, both of which heard arguments in marriage equality cases during August.   Most legal observers expect the 7th Circuit to rule for marriage equality and anticipate that the 6th Circuit may rule against it, based on the composition of the three-judge panels and the questions and comments of the judges during the oral arguments.  Audio recordings of those arguments are available on the courts’ websites.

The 9th Circuit Court of Appeals will be hearing arguments on September 8 in cases from Idaho, Nevada and Hawaii.  The recently-announced  panel of judges in the 9th Circuit is notably gay friendly, including Stephen Reinhardt, the judge who wrote the panel decision striking down California Prop 8.  Another judge on the panel wrote an opinion overturning a district court’s dismissal of a challenge to the “don’t ask, don’t tell” anti-gay military policy.  The 9th Circuit also has a precedent establishing that sexual orientation discrimination claims merit heightened scrutiny, so it seems likely that the 9th Circuit will produce a pro-marriage equality decision, since legal commentators generally agree — as do almost all the judges who have ruled in these cases — that marriage bans cannot survive heightened scrutiny.  A recent federal district court pro-marriage equality decision in Florida will be appealed by that state to the 11th Circuit shortly.

On September 29, the Supreme Court will hold its first conference of the new term to decide which appeals to hear.  Petitions are pending by Utah, Oklahoma and Virginia seeking review of court of appeals rulings from the 10th and 4th Circuits  in favor of marriage equality.  While it is possible that the Court will grant one or more of those petitions early in the term, it might wait to see what develops in the other circuits before moving forward.  However, even if the Court waits until November or December to grant review in  a marriage equality case, it is likely that a decision would be rendered before the end of the Court’s term in June 2015.

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Florida Appeals Court Calls for Florida Supreme Court to Decide Marriage Equality Question

In a highly unusual move, most of the judges on the Florida Second District Court of Appeal have agreed to certify to the state’s Supreme Court the question whether a Florida trial court has jurisdiction over a divorce proceeding of a same-sex couple who were married in another state.  A panel of the court had rejected a request by the parties to refer the case to the Supreme Court on June 26, but the parties then asked for the entire court (the “en banc” court in legal jargon) to consider their request.  Thirteen judges participated, voting 10-3 in favor of certifying the case, in a ruling issued on August 27 in Shaw v. Shaw, Case No. 2D14-2384.

Mariama M. Changamire Shaw and Keiba Lynn Shaw were married in Massachusetts in 2010 and thereafter moved to Florida.  Their marriage broke down.  They separated in 2013, and Mariama filed a divorce action in Hillsborough County.  The women negotiated a voluntary settlement agreement and were looking to have the court incorporate their agreement into a final judgment dissolving their marriage, but the Hillsborough circuit court, on its own motion, decided that it did not have jurisdiction over the case.

The circuit court relied on Florida’s Marriage Amendment, which prohibits recognition of same-sex marriages, and a similar statutory prohibition, and took the position that it could not dissolve a marriage that it was prohibited from recognizing.  The court said that it did not have “jurisdiction to dissolve that which does not exist under law.”  The state’s Attorney General, Pam Bondi, had been notified about this case, but her office did not participate.

Mariama filed an appeal from the ruling, and Keiba filed a cross appeal, both asking for the same thing: that the 2nd District Court of Appeal reverse the jurisdictional ruling and direct the circuit court to decide their divorce case.  However, seeking to avoid delay and noting the pendency of marriage equality cases, including divorce cases, in other Florida counties, they suggested that the court of appeal pass the case up to the Supreme Court for a quicker resolution that would have statewide effect.

The ten-judge majority, in a group opinion  not attributed to any of the individual judges, noted the four prior Florida circuit court marriage equality decisions, including one from another county involving a divorce, some of which have already been appealed to the 3rd District Court of Appeal, and considered that the issues raised by this case have statewide importance.  This conclusion was reinforced in a motion filed by the Family Law Section of the Florida Bar and the Florida Chapter of the American Academy of Matrimonial Lawyers, seeking to participate in the case as amicus curiae because of the importance of this case beyond the immediate parties.  The majority of the 2nd District court concluded that “the order on appeal requires immediate resolution by the Florida Supreme Court because the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”

The majority, contrary to the dissent, stated that the case did not merely raise the issue whether the Full Faith and Credit Clause of the U.S. Constitution requires Florida courts to recognize same-sex out of state marriages of Florida residents for purposes of divorce.  Taking note of the range of trial court decisions around the state that are pending on review, the court said that the issue is “whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages unconstitutionally limits various constitutional guarantees including full faith and credit, access to courts, equal protection, and the right to travel.”  Although the circuit court’s decision did not give any sort of thorough analysis to these questions, relying solely on the state constitutional and statutory prohibition on recognizing such marriages as conclusive on the jurisdictional question, the majority observed that the broader constitutional questions had been briefed and argued by the parties and, in light of the contrary decisions by several other circuit courts holding the ban unconstitutional under the 14th Amendment of the U.S. Constitution, there was an urgent question of constitutional magnitude for the state’s highest court.

“Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here,” wrote the court.  “And there can be little doubt that until the constitutional questions are finally resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice in Florida.  Similarly, in light of those questions, it seems clear that this a matter of great public importance.”

Judge Chris Altenbernd penned the dissent for himself and two other judges, rejecting the notion that this was a matter that should be passed directly to the state’s supreme court.  “Although this case is of importance to these parties,” he wrote, “I cannot agree that this case is a proper subject for a pass through.”  He pointed out that the circuit court’s order “contains no discussion of any constitutional argument and no express constitutional ruling.  Most important, it has no discussion of the constitutionality of these provisions under the Full Faith and Credit Clause of the U.S. Constitution.”  Both parties had appealed the order, which means, he wrote, “Apparently, no party intends to argue that the circuit court correctly dismissed this dissolution proceeding.  The Attorney General has made no appearance in this case, and we do not know whether the Attorney General will argue that Florida law constitutionally prohibits these Florida residents from obtaining a divorce.”

In short, Altenbernd contended, this was an appropriate case for the district court of appeal to hear arguments and render a ruling.  As far as he was concerned, the “dispositive issue in this case is whether Florida, under the Full Faith and Credit Clause of the U.S. Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution.  Presumably, this issue is comparable to the question of whether, after January 1, 1968, Florida was required to give such credit to lawful, out-of-state common law marriages.”  He pointed out that when that question arose, it was decided consistently by several of the state’s district courts of appeal without any need to refer the question directly to the Supreme Court.

“Given that same-sex marriages are a recent development in other states,” he continued, “I am not convinced that Florida’s courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution.  I cannot certify that this order will have ‘a great effect on the proper administration of justice throughout the state’ requiring immediate review in the supreme court.”  He stated his confidence that the court of appeal could “ably consider this appeal and reach a proper resolution,” and pointed out that such a decision would have statewide effect “unless another district court disagrees with us” and might never require the attention of the Supreme Court.

Nowhere mentioned in this decision is the federal Defense of Marriage Act (DOMA), which provides in Section 2 that no state is required to give full faith and credit to same-sex marriages performed in other states.  This is the section of DOMA that was not addressed by the U.S. Supreme Court last year in U.S. v. Windsor, although there is serious debate whether Congress had authority to enact this exception to the full faith and credit requirement stated in the Constitution.  So far, DOMA Section 2 has generally not been mentioned or given any weight in the many federal district court rulings over the past year in marriage recognition cases.  The courts have, with one exception from Tennessee, ruled in those cases that failing to recognize such marriages violates the Equal Protection Clause of the 14th Amendment.

Judge Altenbernd suggested that the court could adopt an interpretation of the state’s Marriage Amendment under which Florida courts could entertain divorce petitions, on the theory that dissolving same-sex marriages is not inconsistent with refusing to recognize them.  Such a ruling, based solely on an interpretation of the Florida Constitution, would not present any federal question and would not be reviewable by the U.S. Supreme Court.  It would finally resolve the problem of “wedlock” for married same-sex couples living in Florida.

However, such a ruling would leave unresolved the question pending before the 3rd District Court of Appeal in several other cases: whether same-sex couples have a constitutional right to marry in Florida.  That question requires deciding whether the Florida Marriage Amendment violates the federal Constitution.

If the Florida courts were to decide that the divorce jurisdiction issue cannot be decided without analyzing the 14th Amendment or other federal constitutional provisions, their decisions would be subject to appeal to the U.S. Supreme Court and probably stayed pending appeal.  Thus, it is possible that a Florida Supreme Court decision in this divorce case would not finally settle the question.

Mariama is represented in this case by Brett R. Rahall and Ellen E. Ware of Tampa.  Keiba is represented by Deborah L. Thomson, Lara G. Davis and Adam B. Cordover, all of Tampa.

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7th Circuit Panel Roughs Up State Attorneys in Marriage Equality Arguments

A panel of three judges of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, gave a very rough time to attorneys from the states of Indiana and Wisconsin on August 26 during oral arguments about marriage equality appeals from those states.  Three district court rulings from Indiana and one from Wisconsin issued earlier in 2014 had found unconstitutional those states’ refusal to allow same-sex couples to marry or to recognize their marriages contracted in other jurisdictions, and the states had appealed.  Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson probably anticipated tough questioning from Democratic appointees Ann Claire Williams and David Hamilton, but one suspects they were not anticipating the kind of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by President Ronald Reagan back in the 1980s.

Judge Posner, a father of the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, but anyone who has been following the trend of marriage equality decisions over the past year might have predicted this result in light of Posner’s record of relentlessly pursuing facts and logic in his decisions.  Posner pressed both attorneys for some reason why neither state would allow or recognize same-sex marriages.  Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents, about 3,000 of whom are in Indiana, he pressed Fisher for a reason why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples, and Fisher could give him no real answer.

Wouldn’t it help those children if their parents could marry, asked Posner?   What’s better for the welfare of these children — that their parents be allowed to marry or prevented from marrying?  Posner’s insistent questions followed up on Supreme Court Justice Anthony Kennedy’s comment in his opinion for the Court in U.S. v. Windsor about the way denial of marriage to same-sex couples humiliates their children, who are being told by the state that their families are second class and not worthy of marriage.

Fisher insisted, as virtually the sole justification for Indiana’s marriage ban, on a state interest in making marriage available to different-sex couples so that their children would be tied to their biological parents in stable families.  But, having conceded that the state’s interest extended to the families in which children are raised, he could not satisfactorily answer questions from all three judges about how excluding same-sex couples from marriage advanced that interest.  If you let gay people adopt, asked Posner, why not let their children have the same benefits?

Fisher’s response – that same-sex couples can only get children intentionally and don’t need to be “nudged” into marrying – seem puny.  Posner also pointed out the large number of children in foster care who needed adoptive parents and asked whether letting same-sex couples marry would lead to more adoptions.  Fisher disclaimed knowledge about such a result, but Posner, the law-and-economics expert, suggested that it is less expensive for married couples to adopt than for unmarried couples to adopt precisely because of all the benefits that accompany marriage.

Judge Hamilton, seizing upon an argument in Indiana’s brief claiming that the state’s marriage statute did not discriminate based on sexual orientation, seemed to throw Fisher into a panic by suggesting that the state was conceding that its law classified based on sex and was thus subject to heightened scrutiny under the Equal Protection Clause.  Virtually all judges seem to agree that if heightened scrutiny is used, bans on same-sex marriage are doomed to fail.

Samuelson did not fare much better arguing for Wisconsin.  He contended that the due process clause was a source of negative rights but not positive rights, and asked the court to consider whether Wisconsin is required to have a marriage law at all.  He suggested that if Wisconsin repealed its marriage law and substituted domestic partnerships, nobody would have cause for complaint because, in his view, the Due Process Clause does not contain an affirmative right to marry.  He argued that all the prior Supreme Court marriage cases were concerned with negative rights, not affirmative rights, in that the Court was striking down instances in which the state had interfered with existing marriage rights.  The judges did not seem impressed by this argument and gave it short shrift.

During Samuelson’s argument on behalf of Wisconsin, Judge Posner really cut to the chase.  As Samuelson blundered on about tradition and “Burkean values” Posner finally asked, “Isn’t this based on hate?” and referred to the history of “savage discrimination” against gay people, including discrimination by government.  Samuelson countered by pointing out that Wisconsin was the first state to pass a statute banning discrimination because of sexual orientation in housing, employment and public accommodations.  Posner responded, “Why draw the line there?”  Why not cease discriminating in marriage?  To Samuelson’s response that this was a matter of “legislative policy,” Posner said, “Give me a rational basis for that legislative policy,” but Samuelson could not.

What did distinguish the 7th Circuit argument from the approaches of the 10th and 4th Circuit courts of appeals, which ruled in marriage equality cases over the summer, was that the judges seemed more inclined from their questioning and comments to treat this as an Equal Protection case rather than a case about a fundamental right to marry.  They pressed the attorneys from plaintiffs — Lambda Legal’s Camilla Taylor, the Indiana ACLU’s Kenneth Falk, and the National ACLU LGBT Rights Project’s James Esseks – for some limiting principle by which to described a constitutional right to marry.  Would that endanger laws forbidding incest, first-cousin marriages, polygamy?  Esseks came back with the strongest answer, pointing to Justice Kennedy’s description of the liberty encompassed by the Due Process Clause in his opinion for the Court in Lawrence v. Texas, the 2003 decision striking down that state’s homosexual sodomy ban.  Kennedy listed the right to select a marital partner as one of the fundamental rights within the scope of constitutionally-protected liberty, and commented, to the outspoken chagrin of Justice Scalia, that homosexuals had the same liberty interest.  Scalia’s dissent asserted that once the Court had eliminated tradition and moral disapproval as grounds for adverse treatment of gay people, there seemed no basis to deny gay people the right to marry.  His comment has been noted by many of the federal trial judges who have struck down marriage bans in recent months.

Most of the questioning for the plaintiffs’ attorneys focused on how to describe the liberty interest and where to find limiting principles for it.  Hamilton particularly suggested that equal protection provided the stronger argument for plaintiffs, since the discriminatory purpose and effect of the marriage bans was clear.  Esseks made a strong pitch for the court to use heightened scrutiny if it decided the case using an equal protection theory, but the judges seemed unreceptive.  Judge Williams suggested that the concept of “heightened scrutiny” was not helpful.  To her, the issue was whether the challenged laws caused harm, and whether there was some balancing benefit to the state that justified the harm.  Her questioning suggested that she understood the harms very well, but that attorneys for the states were unable to name any concrete benefits associated with these bans.

During Fisher’s brief rebuttal argument, Judge Posner came back to his issue of children of adoptive parents, pushing Fisher again to give a reason for denying them benefits, and asking how the marriage ban could possibly advance the state’s interests.  Do you really believe that you get less extramarital sex by pushing heterosexuals to marry, he asked.  You let all these sterile people marry, he commented.  Are they supposed to be role models for channeling procreation?  He characterized this argument as ridiculous.

Posner asked Fisher whether he read the amicus brief filed by the Family Equality Council, which was devoted to relating the stories of harms incurred by children whose parents were not allowed to marry.  Fisher claimed to have read it but not remembered it.  Posner referred to the “harrowing information” about problems created for children raised by couples forbidden to marry, the misfortunes they suffered, and asked incredulously whether Fisher was not moved by that.  He also asked whether Fisher had any empirical basis for anything he had said, in a void dripping with sarcasm.

It was hard to imagine that either of the appellant states are going to win even one vote from this panel, if the judges vote along the lines suggested by their questions and comments during the oral argument.

 

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Oregon Federal Court Refuses to Dismiss Title VII Retaliation Claim by Lesbian Employee

U.S. District Judge Michael McShane ruled on August 21 that a lesbian former employee could sue a hospital under Title VII of the federal Civil Rights Act for 1964 for retaliatory discharge, even though the complaints she claims to have made before her discharge concerned sexual orientation discrimination.  Bennefield v. Mid-Valley Healthcare, 2014 U.S. Dist. LEXIS 116554 (D. Or.).  Title VII outlaws discrimination because of sex, but federal courts have generally held that this does not include sexual orientation discrimination. While finding that the plaintiff had not stated valid Title VII claims of discrimination and retaliation because of religion, and noting that the plaintiff had withdrawn her sexual orientation discrimination claim under Title VII, McShane’s ruling on the retaliation claim preserved the court’s federal question jurisdiction, which also extends to supplementary claims under the Oregon Whistleblower statute and the state’s human rights law, which does forbid sexual orientation discrimination.

The plaintiff, Stephanie Bennefield, began working at Mid-Valley on May 2, 2011.  During her probationary period, she came out to many co-workers as a lesbian.  Bennefield alleges that one co-worker created a hostile work environment for Bennefield after learning that she was a lesbian, including referring to her as a “disgusting lesbian” and a “stupid lesbian” and becoming uncooperative in their work, including provoking Bennefield to walk out of the operating room in disgust due to her refusal to cooperate.  Bennefield claims to have made numerous informal complaints to supervisors, but it was after she made a formal complaint to the Human Resources Department that she was notified of her discharge.  One comment by this hostile employee referring to religion was the basis for Bennefield’s claim of religious discrimination, which Judge McShane did not find persuasive.

Bowing to the fact that federal courts generally do not interpret Title VII’s sex discrimination ban to extend to sexual orientation discrimination, Bennefield agreed to dismissal of her Title VII sexual orientation discrimination claim.  Ultimately, the court’s continued jurisdiction over her case turned on whether her Title VII retaliation claim was valid.  The Hospital contended that her supervisor had decided to discharge her before she filed her formal complaint, and the supervisors disavowed having received any informal complaints from Bennefield concerning the conduct of this co-worker, but those are factual disputes to be resolved at trial if Bennefield has stated a cause of action sufficient to survive the hospital’s summary judgment motion.  The sticking point was in deciding whether Title VII’s retaliation provision extends to dismissal for complaining about sexual orientation discrimination.

The statute, by its terms, prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful practice by this subchapter.”  42 USC sec. 2000e-3(a).  On its face, this would suggest that complaints about discriminatory conduct that is not itself forbidden by Title VII could not provide the foundation for a Title VII retaliation claim.  But Judge McShane noted that courts – and particularly the 9th Circuit, whose rulings are precedential for the district court in Oregon – had been willing to extend the protection of this provision to employees who believed in good faith that they were complaining about conduct that violates Title VII.  The question would be whether the plaintiff held a “reasonable belief” to that effect.

“Defendants… appear to conclude that mistakes of law cannot support a Title VII retaliation claim,” he wrote.  “I think that argument goes too far.  An employee may bring a retaliation claim even if the employee makes a mistake of law in thinking that the employer engaged in prohibited conduct,” citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994).  “Whether the error is one of fact or law is irrelevant, so long as the mistake is made in good faith,” he continued, citing Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987).  “Title VII is construed broadly, and ‘this directive applies to the reasonableness of a plaintiff’s belief that a violation occurred, as well as to other matters.’  Although the reasonableness prong is an objective standard, courts must take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.’”

Judge McShane does not mention, but could well have done, that public opinion polls show that a majority of the public incorrectly believes that anti-gay employment discrimination is illegal under Title VII, even though most federal courts construe Title VII otherwise and most states have not banned sexual orientation discrimination in employment.  This suggests that many employees – especially those whose job does not require them to keep up with legal issues – assume that anti-gay discrimination is unlawful, and that they may expect protection against retaliation if they complain to a supervisor about such discrimination.  The situation is complicated in a state like Oregon, where the state forbids sexual orientation discrimination and employees may presume that they are protected so long as their complaint concerns conduct that is unlawful, regardless whether the anti-discrimination law in question is state law or federal law.  Thus, Bennefield was complaining about unlawful discrimination, but it was not discrimination made expressly unlawful by Title VII.

“That discrimination based on one’s sexual orientation turned out to not be prohibited under Title VII does not make Bennefield’s belief objectively unreasonable,” wrote McShane.  In making this conclusion, I take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims,’” again quoting from a 9th Circuit opinion.  McShane also rejected the defendant’s argument that Bennefield could not demonstrate that her discharge was due to a complaint that she filed after her supervisor had already decided to discharge, because Bennefield had alleged numerous informal complaints predating that decision.  He also noted that Bennefield’s pleadings contradict the employer’s contentions about her deficiencies as an employee, creating a material fact issue that it would be improper to resolve on summary judgment.  “Viewed in the light most favorable to Bennefield,” he concluded on this point, “she has met her burden of demonstrating defendants’ proffered reasons for firing her were pretextual.”

Bennefield is represented by Carl Lee Post, Cynthia J. Gaddis and Daniel J. Snyder of the Law Offices of Daniel Snyder in Portland, Oregon.  Judge McShane is the first openly-gay person to serve as a U.S. District Judge in the District of Oregon, and recently rendered the ruling holding Oregon’s ban on same-sex marriage unconstitutional.  Because the state decided not to appeal his ruling, Oregon recently became a marriage equality jurisdiction.

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Florida Federal Court Rules for Marriage Equality; 10th Circuit Stays Colorado Ruling; Virginia Clerk Petitions for Certiorari

There were several developments on the marriage equality front late last week.  On August 21, U.S. District Judge Robert L. Hinkle, of the Northern District of Florida, granted a preliminary injunction to the plaintiffs in Brenner v. Scott, 2014 WL 4113100, a consolidation of two marriage equality cases, but stayed his ruling pending the state’s appeal to the U.S. Court of Appeals for the 11th Circuit.  On the same day, two judges of the U.S. Court of Appeals for the 10th Circuit granted a motion by Colorado Attorney General John Suthers to stay a marriage equality Order by U.S. District Judge Raymond P. Moore, who had ruled on July 23 that Colorado’s same-sex marriage ban violates the 14th Amendment.  Finally, on August 22, Norfolk County, Virginia, Clerk of Court George E. Schaefer, III, one of the defendants in the Virginia marriage equality case, filed a Petition for Certiorari with the U.S. Supreme Court, seeking review of the 4th Circuit’s July 28 decision finding Virginia’s same-sex marriage ban unconstitutional.

Judge Hinkle’s ruling on the merits was relatively brief in light of the growing list of prior federal marriage equality rulings that has accumulated since the Utah decision from last December 20 by District Judge Robert Shelby.  In his introductory section, after briefly summarizing the background of the case, Judge Hinkle wrote, “Indeed, except for details about these specific parties, this opinion could end at this point, merely by citing with approval the circuit decisions striking down state bans on same-sex marriage,” citing the 10th Circuit’s Utah and Oklahoma cases and the 4th Circuit’s Virginia case.  But since Hinkle was the first district court to rule on a marriage equality claim within the 11th Circuit (which includes Alabama and Georgia as well as Florida), he clearly felt obliged to provide an explanation for his ruling.

He explained the obligation of federal courts to strike down unconstitutional state laws “when necessary to the decision in a case or controversy properly before the court, so the suggestion that this is just a federalism case — that the state’s laws are beyond review in federal court – is a nonstarter.”  He also noted that because 20 out of the 22 plaintiffs in the cases before him were seeking recognition of marriages performed in other states, “the defendants’ invocation of Florida’s prerogative as a state to set the rules that govern marriage loses some of its force.”  He also found that the “general framework” that applies to the plaintiffs’ rights to due process and equal protection “is well settled.”

Relying on the Virginia interracial marriage decision from 1967, Loving v. Virginia, and subsequent rulings by the Supreme Court, he agreed with the 10th and 4th Circuits that this case involves a fundamental rights claim, requiring strict scrutiny of the state’s purported justifications for denying marriage rights to same-sex couples.  Judge Hinkle provided a very clearly written argument as to why this is a fundamental rights case.

In discussing the application of strict scrutiny, he wrote, “A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest.  A variety of justifications for banning same-sex marriages have been proffered by these defendants and in many other cases that have plowed this ground since Windsor [the Supreme Court's 2013 DOMA decision].  The proffered justifications have all been uniformly found insufficient.  Indeed, the states’ asserted interest would fail even intermediate scrutiny, and many courts have said they would fail rational-basis review as well.  On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive.  All that has been said there is not repeated here.”

However, Judge Hinkle was moved to address the state’s procreation argument.  “The defendants say the critical feature of marriage is the capacity to procreate.  Same-sex couples, like opposite-sex couples and single individuals, can adopt, but same-sex couples cannot procreate.  Neither can many opposite-sex couples.  And many opposite-sex couples do not wish to procreate.  Florida has never conditioned marriage on the desire or capacity to procreate.  Thus individuals who are medically unable to procreate can marry in Florida.  If married elsewhere, their marriages are recognized in Florida. The same is true of individuals who are beyond child-bearing age.  And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to do so, are allowed to remain married.  In short, the notion that procreation is an essential element of a Florida marriage blinks reality.”

“Indeed,” Hinkle continued, “defending the ban on same-sex marriage on the ground that capacity to procreate is the essence of marriage is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that, in another context, might be ‘accompanied by a suspicion of mendacity.’  The undeniable truth is that the Florida ban on same-sex marriages stems entirely, or almost entirely, from moral disapproval of the practice.  Properly analyzed, the ban must stand or fall on the proposition that the state can enforce that moral disapproval without violating the Fourteenth Amendment.”  And who is Judge Hinkle’s source for this assertion?  Our old unintended ally in the marriage equality struggle, Supreme Court Justice Antonin Scalia.  Judge Hinkle quotes his statements to this effect from Scalia’s dissent in Lawrence v. Texas, the 2003 sodomy law decision.

“In short,” wrote Hinkle, “we do not write on a clean slate.  Effectively stripped of the moral-disapproval argument by binding Supreme Court precedent, the defendants must fall back on make-weight arguments that do not withstand analysis.  Florida’s same-sex marriage provisions violate the Due Process and Equal Protection Clauses.”  The judge went on quickly to dispose of the state’s remaining argument that his ruling was precluded by the Supreme Court’s 1972 dismissal of a marriage equality appeal from Minnesota in Baker v. Nelson.  “Every court that has considered the issue has concluded that the intervening doctrinal developments — as set out in Lawrence, Romer, and Windsor – have sapped Baker’s precedential force,” he wrote.

He also rejected the argument that he was bound by an 11th Circuit ruling issued shortly after Lawrence, in which that court resisted a constitutional challenge to Florida’s statutory ban on gay people adopting children, pointing out that it was a rational basis case, and that the state courts had subsequently invalidated the statute under the state constitution.  According to Judge Hinkle, that 11th Circuit ruling makes it the “law of the circuit” that sexual orientation equal protection claims do not get heightened scrutiny, but since he was treating this case as a fundamental rights claim, that was not relevant to his decision.

Judge Hinkle concluded that plaintiffs were entitled to a preliminary injunction barring Florida from enforcing its ban.  However, he found that there is a “substantial public interest in implementing this decision just once – in not having, as some states have had, a decision that is on-again, off-again.”  Thus, although he might be inclined to deny a stay pending appeal, the examples from the past year counseled against that route.  “There is a substantial public interest in stable marriage laws,” he wrote.  “A stay thus should be entered for long enough to provide reasonable assurance that the opportunity for same-sex marriages in Florida, once opened, will not again close.  The stay will remain in effect until stays have been lifted in Bostic, Bishop, and Kitchen [the 10th and 4th Circuit cases that have been stayed pending Supreme Court appeals], and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the 11th Circuit or the Supreme Court.”

The judge did make one exception, however, for a plaintiff who was seeking to have a properly completed death certificate for her deceased spouse.  “There is little if any public interest on the other side of the scale,” wrote Hinkle.  “There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse’s death certificate.  Indeed, the state’s refusal to let that happen is a poignant illustration of the controversy that brings us here.”

In the course of his ruling, Hinkle dismissed as defendants the governor and attorney general, finding that other state officials who were responsible for administering the relevant laws directly were the most suitable defendants.  He directed that Florida’s Surgeon General “must issue a corrected death certificate for Carol Goldwasser showing that at the time of her death she was married to Arlene Goldberg,” and set a deadline of the later of September 22, 2014 or 14 days after all information is provided that would normally be necessary to complete a death certificate.

Florida Attorney General Pam Bondi reacted to the decision by reaffirming her commitment to defend the Florida marriage ban.  Appeals from four state court rulings are already pending in the Florida court of appeal, and Bondi has argued that these cases should be put “on hold” as other appellate cases are going forward to the Supreme Court.  Presumably she will notice an appeal of Judge Hinkle’s decision with the 11th Circuit, but she might ask the Circuit to delay scheduling consideration of the case until the Supreme Court acts on the petitions from Utah, Virginia, and one expected to be filed from Oklahoma.  However, the plaintiffs would be expected to strongly oppose any such request, arguing that any delay in vindicating their constitutional rights would impose irreparable injuries on the plaintiffs.

Judge Hinkle was nominated to the federal bench by President Bill Clinton in 1996.  The two cases the judge was deciding were brought by private attorneys and the ACLU of Florida.

The 10th Circuit’s decision to stay the Colorado ruling was fully expected, in light of that court’s decision to stay its own Utah and Oklahoma rulings while the defendants in those cases petitioned the Supreme Court for review.  The brief Order from the court cited those prior actions and said that this stay was being issued “in the interests of consistency,” noting as well that just the day before the Supreme Court had issued a stay in the 4th Circuit’s Virginia case.

In that Virginia case, George Schaefer’s petition for Supreme Court review sounded very much like the petition filed earlier by the state of Utah in seeking review of the 10th Circuit’s marriage equality decision.  Schaefer argued that this is at heart a federalism case — who decides whether same-sex couples can marry, federal courts or the Virginia legislature and electorate? — and, echoing Chief Justice John Roberts’ dissent in the Windsor case, that the 4th Circuit’s disposition of the case was inconsistent with Windsor.  He also argued that the 4th Circuit had not properly identified the right at issue, thus mistakenly holding that plaintiffs were not seeking the recognition of a new constitutional right, but rather the existing right to marry.  Perhaps the most salient part of Schaefer’s petition was his argument about why the Court should grant his petition rather than the one filed a few weeks ago by Virginia Attorney General Mark Herring.  Herring, who has become a marriage equality advocate and who directed that the state “change sides” in this lawsuit, filed his petition for review even though he agreed with the 4th Circuit’s ruling, pointing out that the state would continue to enforce the marriage ban until instructed not to do so in a definitive ruling and that he wanted to move the case forward expeditiously to the Supreme Court.  Schaefer point out that as a consistent, vigorous defender of the ban, he was the better party to appeal the 4th Circuit’s ruling to the Court.  He also pointed out that this would not preclude Herring from participating as an amicus on the side of the plaintiffs.

Schaefer hired S. Kyle Duncan of Washington D.C. and two lawyers from Chesapeake, Virginia, to represent him on the Supreme Court appeal.  The plaintiffs are represented by lawyers from the ACLU and Lambda Legal together with pro bono attorneys from private firms in the Harris case (Virginia class action) and Ted Olson and David Boies for the American Foundation for Equal Rights in the Bostic (individual plaintiffs) case.  If the state of Virginia gets to argue in the Supreme Court, it would be represented by Solicitor General Stuart Raphael, who signed Herring’s petition to the Court.

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