New York Law School

Art Leonard Observations

Wyoming Marriage Equality Begins on Tuesday, Oct. 21

State authorities in Wyoming announced that Attorney General Peter Michael will file a notice with the U.S. District Court on Tuesday, October 21, certifying that the state will not appeal U.S. District Judge Scott W. Skavdahl’s Order, filed on Friday, October 17, confirming that under 10th Circuit precedents the state must allow same-sex couples to marry.  The judge had stayed his order until October 23 at 5 pm unless the state certified earlier that it would not be appealing.  “After reviewing the law and the judge’s decision that binding precedent requires recognition of same-sex marriage, I have concluded that further legal process will result in delay but not a different result,” said Michael in a statement released by his office.

When the ruling goes into effect, Wyoming will be the 32nd marriage equality state.

Skavdahl’s ruling in Guzzo v. Mead, 2014 U.S. Dist. LEXIS 148481, 2014 WL 5317797 (D. Wyoming, Oct. 17, 2014), came one day after the lead defendant, Governor Matthew Mead, stated during an election debate that he would not appeal a ruling by the court, in light of the 10th Circuit precedents.  The 10th Circuit ruled in Kitchen v. Herbert, 755 F.3d 1193 (2014) and Bishop v. Smith, 760 F.3d 1070 (2014), that the Utah and Oklahoma constitutional and statutory bans on same-sex marriage violate the 14th Amendment by depriving same-sex couples of the fundamental right to marry in the absence of sufficient justification under the test of strict scrutiny.  The U.S. Supreme Court denied petitions to review these two rulings on October 6, and subsequently rejected applications by two states in the 9th Circuit to stay marriage equality rulings pending further appeal.

The Supreme Court’s actions sent a clear message to lower federal courts and to state officials fighting marriage equality lawsuits: the Supreme Court is not interested at present in hearing appeals from pro-marriage equality rulings or in delaying them from going into effect.  Thus, attempts to delay or appeal are “futile,” as Arizona’s attorney general, Tom Horne, said in explanation of his decision not to appeal last week’s ruling in that state by U.S. District Judge John Sedwick.

Wyoming is one of a handful of western states that had not adopted a constitutional amendment banning same-sex marriage, so a lawsuit had previously been filed in state court, Courage v. State of Wyoming (filed in Laramie County District Court on March 5, 2014), claiming that a statutory ban violated the state constitution.  However, in the recent acceleration of federal marriage equality litigation spurred by the 10th Circuit’s rulings during the summer and then the Supreme Court’s surprise announcement on October 6 that it would not review the pro-marriage equality rulings by the 4th, 7th and 10th Circuit Courts of Appeals, a federal suit was filed in Wyoming to push things forward more quickly as the state action was not really progressing anywhere.  National Center for Lesbian Rights joined with local attorneys Tracy Zubrod, the law firm of Arnold & Porter LLP, and the law firm of Rathod Mohamedbahi LLC, to move the Wyoming case forward quickly to a summary judgment ruling.  The suit was filed on behalf of four same-sex couples and Equality Wisconsin, a gay rights political organization.

Judge Skavdahl’s opinion did not display the enthusiasm and passion of earlier district court opinions issued over the past year.  He clearly projected that he was issuing a ruling that he had to issue rather than a ruling that he wanted to issue.  “This Court is bound to apply and follow Tenth Circuit precedent unless and until it is overruled by the Tenth Circuit en banc or superseded by a contrary United States Supreme Court decision,” he explained.  “The Tenth Circuit’s decisions in Bishop and Kitchen are binding upon this Court and determinative.”  The judge devoted a page of his opinion to setting out his understanding of constitutional history and the separation of powers, as well as extolling the doctrine of “judicial restraint” in the face of politically-charged legal issues.  “The preferred forum for addressing the issues presented by Plaintiffs in this case is the arena of public debate and legislative action,” he wrote with seeming regret.  “However, that ship has sailed.  It is not the desire or preference of this Court to, with the stroke of a pen, erase a State’s legislative enactments.  Nonetheless, the binding precedent of Kitchen and Bishop mandate this result, and this Court will adhere to its Constitutional duties and abide by the rule of law.”

Clearly, were he not bound by 10th Circuit precedent, Judge Skavdahl would have preferred to rule that this case involves a political question and that the court would defer to the legislative choices of Wyoming.  In this, he was siding with U.S. District Judge Martin Feldman of Louisiana, the sole federal district judge over the past year to rule against marriage equality.  But Feldman was ruling in a state in the 5th Circuit, where there is no court of appeals precedent.  An appeal from Feldman’s ruling will be argued in the 5th Circuit in November, together with the state’s appeal of a pro-marriage equality ruling from Texas.

Although the pending state court action is independent from this federal court ruling, the state is likely to be successful in getting it dismissed on grounds of mootness after the federal ruling takes effect on October 21.

Judge Skavdahl was appointed to the federal bench by President Barack Obama in 2011.  In an interview with Jeffrey Toobin published in The New Yorker on October 17, President Obama said that the best Supreme Court action during his administration was the Court’s October 6 decision to deny review of the circuit court marriage equality rulings.  “Ultimately,” he told Toobin, “I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states.”


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Federal Court Grants Summary Judgment for Marriage Equality in Two Arizona Cases

Granting pending summary judgment motions in two pending marriage equality cases, Senior U.S. District Judge John W. Sedwick ruled on October 16 that Arizona’s constitutional and statutory same-sex marriage bans violated the Equal Protection Clause of the U.S. Constitution. Connolly v. Jeanes, 2:14-cv-00024 JWS (D. Ariz.); Majors v. Horne, 2:14-cv-00518 JWS (D. Ariz.).  Sedwick, who was appointed to the U.S. District Court in Alaska by President George H.W. Bush, hears many Arizona cases by assignment to help out the understaffed district court in that state.

Lambda Legal and pro bono counsel from the law firm Perkins Coie LLP, filed the complaint in Majors on March 13, and had previously secured from Judge Sedwick an emergency order on behalf of one of the co-plaintiffs, whose same-sex spouse had died and who desired to have the death certificate accurately reflect their marriage and his status as a surviving spouse based on their recent California marriage.  In that ruling, signed on September 12, see 2014 WL 4541173, the judge left little doubt that the plaintiffs were likely to prevail, and he ordered the state to provide the relief that had been requested on behalf of Fred McQuire.  However, the 9th Circuit’s subsequent ruling in Latta v. Otter, 2014 WL 4977682 (9th Cir. Oct. 7, 2014), sealed the matter both for this case and for the other pending case.

“When the pending motions were filed,” wrote Sedwick, “their resolution would have required this court to produce a lengthy and detailed opinion. However, in the interim, the Court of Appeals for the Ninth Circuit recently ruled that substantially identical provisions of Nevada and Idaho law that prohibited same-sex marriages are invalid because they deny same-sex couples equal protection of the law, the right to which is guaranteed by the Constitution of the United States. This court is bound by the precedent set by the Court of Appeals for the Ninth Circuit.  For that reason, the plaintiffs are entitled to a declaration that the challenged laws are unconstitutional and a permanent injunction prohibiting their enforcement.”  Sedwick went on to explain that he had considered whether to stay his ruling pending appeal, but decided that “an appeal to the Ninth Circuit would be futile” and that the Supreme Court was likely to “turn a deaf ear on any request for relief from the Ninth Circuit’s decision” in light of its recent denials of certiorari in all pending state appeals of marriage equality rulings.  He might have added, as well, the Court’s refusal to grant Idaho’s emergency stay application seeking to delay same-sex marriages while that state prepared a motion for rehearing en banc of the 9th Circuit’s opinion.

Concluded Sedwick, after declaring the challenged provisions unconstitutional, “It is further ordered that the defendants are hereby ordered to permanently cease enforcement of those provisions of Arizona law declared unconstitutional by this order. Finally, this court declines to stay the effect of this order.”  He denied the defendants’ cross-motion for summary judgment.

The Connolly complaint was filed by a group of Phoenix and Flagstaff attorneys in January, and was later consolidated with Lambda Legal’s case before Judge Sedwick.  Because of pending motions in other cases, the question of how many states allow same-sex marriage and how to number Arizona on the list was a bit perplexing on the day the decision was announced, but it seemed that ultimately there would be about 35 states on the list when the dust settled after follow-up action in the 4th, 9th and 10th Circuit states that had not been directly involved in the cases upon which those circuits had ruled.

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Alaska Joins the Marriage Equality Column

Over the protest of Alaska Governor Sean Parnell, who vowed to undertake what appears to be a futile appeal, U.S. District Judge Timothy M. Burgess issued a surprise marriage equality ruling on Sunday, October 12, in Hamby v. Parnell, 2014 WL 5089399, 2014 U.S. Dist. LEXIS 145876.  Burgess held a hearing on the 10th and told the parties that he would issue a ruling “soon,” but nobody was expected a Sunday ruling just two days later.  Burgess made his injunction effective immediately, and the state’s Bureau of Vital Statistics announced marriage license applications could be filed on Monday morning.  Alaska’s marriage laws provide that licenses are not issued until three days after the application is filed, and a marriage cannot be performed until a license is issued.  However, couples already married in other jurisdictions won immediate recognition for their marriages.

The state filed a motion with Judge Burgess on October 13 seeking a stay of the ruling, premised on the argument that the 9th Circuit might grant en banc review in %Latta v. Otter% as requested by Idaho Governor Butch Otter, or that a circuit split might open up soon leading the Supreme Court to take a marriage equality case for review.  The state contended that allowing same-sex marriages to begin in Alaska while these possibilities existed could cause “chaos” in the administration of the state’s marriage laws.  That didn’t seem a very convincing argument, in light of the 9th Circuit’s action announced on Oct. 13 allowing same-sex marriages to start in Idaho effective October 15.

Judge Burgess’s ruling was virtually pre-ordained, as the U.S. 9th Circuit Court of Appeals, which has jurisdiction over appeals from Alaska, had issued a unanimous ruling on October 7 striking down same-sex marriage bans in Nevada and Idaho, and the Supreme Court had denied Idaho’s application for a stay late on Friday, October 10.   Some Idaho clerks had already begun issuing marriage license to same-sex couples upon word that a temporary stay issued on October 8 by Supreme Court Justice Anthony Kennedy had been lifted.

Burgess went beyond the 9th Circuit’s ruling.  The 9th Circuit three-judge panel was unanimous in finding that the Nevada and Idaho bans violate the Equal Protection Clause of the 14th Amendment, applying the circuit’s “heightened scrutiny” standard to laws that discriminate because of sexual orientation.  One member of that panel concurred, arguing that the ban was also a form of sex discrimination.  Another member concurred in an opinion arguing that the bans violate the Due Process Clause by impairing the fundamental right to marry.

Judge Burgess, who was appointed to the court in 2005 by President George W. Bush, ruled on both Due Process and Equal Protection grounds.

Rejecting the state’s argument that the plaintiffs were seeking a “new” constitutional right of “same-sex marriage,” Burgess pointed out that although the Supreme Court’s cases describing marriage as a fundamental right had all involved different-sex couples, “nothing in the decisions indicates that the fundamental right to marry is circumscribed by other defining characteristics (e.g., in this case, a fundamental right to ‘male-female marriage’).  The Supreme Court has never described or defined marriage as a right that is dependent upon the particular facts of the case before it or a right belonging to a particular group; on the contrary, its discussion of marriage has consistently been ‘in broad terms independent of the persons exercising it,” quoting from the 10th Circuit’s decision in Kitchen v. Herbert, the Utah same-sex marriage case.

“The Court has been called upon to use reasoned judgment to interpret the right to choose whom to marry and the breadth of that right under substantive due process,” wrote Burgess.  “It is in consideration of this duty that the Court finds that marriage between individuals of the same sex is encompassed by our nation’s longstanding fundamental right to marry.”  Furthermore, Burgess found it to be “obvious” that the Alaska same-sex marriage ban violated this right.  “While homosexuality and the union of same-sex couples through marriage may be against the beliefs or beyond the moral parameters of some Americans,” he continued, “the core purpose of the Fourteenth Amendment is to protect an individual’s freedom by ensuring that a constitutional right is not ‘infringed simply because a majority of the people choose that it be.’  Alaska’s laws prohibiting same-sex marriage ‘usurp, disregard, and disrespect’ the fundamental right of all homosexuals to choose who to marry; a right of liberty, privacy, and association freely given to heterosexuals.”  Burgess concluded that the state’s ban also violated the right of same-sex couples married elsewhere to have their marriages recognized in Alaska.

Turning to the Equal Protection argument, Burgess held that he was bound to apply “heightened scrutiny” as required by 9th Circuit precedent, placing the burden on Alaska to justify its marriage ban.  He found that the interests argued by the state were insufficient to meet this burden.  While conceding the government’s interest in allowing citizens to “vote and decide critical issues affecting their lives,” Burgess found that this interest could not justify letting the state “exercise its power to define marriage in a way that infringes upon individuals’ constitutional rights.”

“Even if a majority of citizens disapprove of homosexuality, an infringement on same-sex couples’ constitutional rights ‘must be predicated on legitimate state concerns other than disagreement with the choice the individual has made,'” since “fundamental rights may not be submitted to a vote.”  Burgess’s discussion weaved together quotations from the 9th Circuit’s Nevada and Idaho decision, as well as the 7th Circuit’s earlier decision on marriage bans from Wisconsin and Indiana.  But, ultimately, he found that there was no rational or logical relationship between Alaska’s interest in letting its citizens vote on policy issues and its obligation to respect the constitutional rights of gay citizens.  Similarly rejecting an argument from “tradition,” Burgess quoted from 7th Circuit Judge Richard Posner’s musings about the terrible traditions that nobody would want to preserve.

Turning to the state’s argument that its ban was justified by concern for children, Burgess pointed out that children being raised by same-sex couples would benefit from their parents being able to marry.  “It is estimated that 23% of same-sex couples in Alaska are raising children (biological, adopted, or step-children), the third highest percentage in the nation,” he wrote.  “Preventing these individuals from participation in marriage places upon them unwarranted social, economic, and political burdens and prevents them from obtaining the extensive benefits and protection that are provided to families of opposite-sex couples.”

“By singling out homosexual couples and banning their ability to marry an individual of their choosing,” wrote Burgess, “it is impossible to assert that all Alaskans are equal under the state’s laws.”

Concluding in a way that signaled that he would have found the marriage bans unconstitutional even under the more deferential rational basis test, Burgess wrote, “In sum, any relationship between Alaska’s same-sex marriage laws and the government interests asserted by Defendants is either nonexistent or purely speculative.  Alaska’s same-sex marriage laws are a prime example of how ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.’  Refusing the rights and responsibilities afforded by legal marriage sends the public a government-sponsored message that same-sex couples and their familial relationships do not warrant the status, benefits, and dignity given to couples of the opposite sex.”

Burgess concluded by declaring the laws unconstitutional “for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution,” and enjoined the state from enforcing those laws to exclude same-sex couples from marriage.

The plaintiffs in the case, four same-sex couples who married elsewhere and sought recognition of their marriages in Alaska and one couple seeking to marry in the state, were represented by Alaska attorneys Caitlin Shortell, Allison Mendel and Heather Gardner.

The Alaska ruling came just days after the Supreme Court had lifted Justice Kennedy’s temporary stay in the Idaho case, and shortly after the Coalition for the Protection of Marriage had withdrawn its applications to the Supreme Court and the 9th Circuit seeking a stay of the Nevada marriage ruling.  When all of these factors were added up, it appeared that almost a dozen states had been added to the marriage-equality list since Monday morning, October 6, when the Supreme Court announced that it would not review any of the pending appeals from marriage equality rulings by the 4th, 7th and 10th Circuit courts of appeals, bringing the total to 30 marriage equality states, taking in an overwhelming majority of the nation’s population.  Pending trial court action in at least five other states in the 4th, 9th and 10th circuit portended further developments soon, and an opinion could come at any time in the 6th Circuit, where appeals from four states were argued in August.



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Marriage Equality: The Day After and the Sequels

The day after the U.S. Supreme Court refused to review pro-marriage equality rulings by three federal courts of appeals in four cases directly affecting the marriage bans in five states, another circuit was heard from.  A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled on October 7 in favor of marriage equality in cases from Nevada and Idaho.  Writing for the panel, Circuit Judge Stephen Reinhardt, who was appointed to the court by Jimmy Carter, found that the marriage bans failed to meet the 9th Circuit’s heightened scrutiny standard. Later on  October 7th the court exercised its discretion to issue its mandate to the two district courts, declaring its decision immediately effective.  Latta v. Otter, 2014 Westlaw 4977682.

Nevada officials quickly fell into line.  Governor Brian Sandoval had concluded earlier in the year that the Nevada marriage ban was no longer defensible, so the state did not defend its law before the Court of Appeals, leaving it to an intervening anti-marriage-equality group called “Coalition for the Protection of Marriage” to mount the defense.  That group signed up Idaho’s attorney to represent them.  In light of this, Sandoval was ready to have the state comply with the order, with marriages starting right away.  The Coalition for the Protection of Marriage undoubtedly lacks standing to file its own appeal, in light of the state government’s decision not to do so and the lack of any Nevada law authorizing private groups to represent the state in federal litigation.  Any argument to the contrary by the Coalition would undoubtedly meet defeat because of the way the Supreme Court handled the Proposition 8 case in 2013, finding that proponents of the California anti-marriage initiative lacked standing to appeal a lower court ruling to the 9th Circuit or the Supreme Court.

Idaho was a different story, however, as Governor Butch Otter authorized attorney Gene Schaerr, a Washington-based Supreme Court litigator, to file an emergency application for a stay pending appeal with the 9th Circuit and with the Supreme Court.  Otter’s Supreme Court application, filed on Wednesday morning, October 8, was addressed to Justice Anthony Kennedy, who receives such petitions from the 9th Circuit.  Kennedy quickly granted a temporary stay, giving the plaintiffs until 5 pm on October 9 to respond, and he was expected to refer the application to the full court.   Schaerr’s application said that Idaho would be filing a petition for certiorari, asking the Court to address two questions: whether sexual orientation discrimination is subject to heightened scrutiny, and whether bans on same-sex marriage are actually a form of sexual orientation discrimination.  Schaerr suggested in his application that the Court could address both of these questions without rendering a final decision on whether same-sex couples have a right to marry, and if the Court found that the 9th Circuit panel erred as to either one, it could send the case back to the 9th Circuit for reconsideration.  This would kick the can down the road substantially, putting off a final decision in Idaho for a year or more.

Because the 9th Circuit had consolidated the two cases for decision, there was a single mandate, and Justice Kennedy’s Order referenced the docket numbers of both cases, so technically the mandate was stayed for both Nevada and Idaho, but as a practical matter Nevada was not planning to appeal, so the stay did not interfere with marriages in Nevada.  [Later in the day, responding to a request for clarification by Lambda Legal, which represents the Nevada plaintiffs, Kennedy issued a revised order, staying the 9th Circuit mandate ONLY as it applies to Idaho.  No stay for Nevada, so no interference with implementation of the decision in Nevada.]

The Supreme Court may respond quickly to this application, since it dismissed seven certiorari petitions just days ago, lifting stays in four very similar cases.  The most widespread interpretation of the Supreme Court’s unexplained dismissals was that the four members of the Court most opposed to same-sex marriage would not hear the cases for fear that Justice Kennedy would join with other marriage-equality supporters to establish a nationwide precedent, and that the members who favored marriage equality saw no urgency to address the issue as long as the courts of appeals were ruling in favor of marriage equality.  On that reading, it seems likely that the Court would deny the stay unless a majority of the Justices are taken with Schaerr’s argument that the Court should address the doctrinal circuit court splits before allowing marriage equality to spread further.  It takes a majority vote to grant a stay.

“We hold,” wrote Reinhardt for the 9th Circuit panel, “that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.”

SmithKline v. Abbott Laboratories is a case decided by the 9th Circuit on January 21 of this year, holding that a person could not be struck from a jury list just because they are lesbian or gay.  In that opinion, the court of appeals concluded that the Supreme Court’s 2013 decision striking down Section 3 of the Defense of Marriage Act had effectively applied heightened scrutiny by placing the burden on the government to justify unequal treatment of same-sex marriages under DOMA.  Supreme Court precedents provide that if a particular basis for discrimination requires heightened scrutiny, then it can’t be used to strike somebody from a jury list without an individualized showing that the person can render impartial jury service in the particular case.

Reinhardt found that Nevada and Idaho had failed to meet this test.  Although his analysis followed along what are now very familiar lines from the prior court of appeals opinions, one footnote jumped out as particularly quotable, referring to Governor Otter’s argument that same-sex marriage would contribute to a “shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.”  Commented Reinhardt: “He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies.  We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”  Some wit!

Because he was applying the heightened scrutiny test, Judge Reinhardt did not opine directly as to whether the marriage bans lacked a rational basis.  About the closest he came was to say that “defendants have failed to demonstrate that these laws further any legitimate purpose,” so “they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

Thus, the panel affirmed the decision from Idaho and reversed the decision from Nevada, sending the Nevada case back to the district court “for the prompt issuance of an injunction.”  There was no need for a similar order concerning Idaho, since the trial court had already issued an injunction whose effect was stayed until the 9th Circuit could rule.  The 9th Circuit’s ruling effectively lifted that stay.

Although the other judges on the marriage panel joined Judge Reinhardt’s opinion, one of them, Clinton-appointee Marsha Berzon, wrote a concurring opinion, arguing that the case could alternatively be decided as a sex discrimination case.  Under Supreme Court precedents, sex discrimination cases merit heightened scrutiny.  Of course, applying heightened scrutiny led Berzon to the same conclusion reached by the entire panel on the merits.  But she focused her analysis on a point that was only briefly mentioned by the full panel decision: that Monte Neil Stewart, the attorney who argued in defense of the Idaho and Nevada laws, had advanced as his central argument one that relied heavily on stereotypes about the roles of men and women when it comes to raising children.  The Supreme Court’s sex discrimination jurisprudence sharply rejects any policy that relies on stereotypes about men and women.  Judge Berzon’s opinion runs through a litany of major Supreme Court cases that rejected sex stereotypes in a wide variety of factual contexts, and she found that they were no more a legitimate basis for policymaking in this case.

Finally, and perhaps surprisingly, Judge Reinhardt released his own separate concurring opinion, of course agreeing with the opinion he wrote for the panel but adding his view that this case also involved the fundamental constitutional right to marry, and thus could have been decided as a Due Process case using the strict scrutiny standard that the Supreme Court applies when it is faced with a law that abridges a fundamental right.  Fundamental rights are those that are deeply embedded in our history and tradition.  Opponents of marriage equality have argued that since same-sex marriage is a very new phenomenon, it cannot be considered a fundamental right.  Judge Reinhardt agreed with the plaintiffs in these cases that the opponents have framed the fundamental rights question too narrowly, and he referred to the Supreme Court’s 2003 decision striking down the Texas sodomy law, in which Justice Anthony Kennedy made a similar point in criticizing the Supreme Court’s notorious 1986 Georgia sodomy law decision, Bowers v. Hardwick, for defining too narrowly the right at issue.  Reinhardt concluded that the right to marry recognized by the Supreme Court broadly encompasses the issue of choice of marital partner and is not narrowly focused on different-sex couples.  He invoked a series of Supreme Court marriage decisions that found a right to marry in situations where couples could not engage in procreative activity, thus undermining the defendants’ argument that procreative potential is the defining characteristic of marriage.

However, neither Judge Berzon’s sex discrimination argument nor Judge Reinhardt’s fundamental rights argument won agreement from the other judges on the panel.  (The third judge, Clinton-appointee Ronald Gould, did not write a separate opinion.)  Therefore, the decision of the panel as such is based solely on sexual orientation discrimination.

The 9th Circuit’s SmithKline decision was not tested by en banc review or Supreme Court review, as the losing party in that appeal, Abbott Laboratories, decided not to take the case further on that question.  Thus, although it is a binding 9th Circuit precedent, it appears to be an outlier as a matter of federal constitutional law.  The 2nd Circuit adopted a heightened scrutiny standard when it was reviewing the DOMA case, but the Supreme Court did not specifically endorse that aspect of the ruling when it affirmed the 2nd Circuit’s decision to strike down Section 3 of DOMA.  The 1st Circuit had used the rational basis test to strike down the same provision of DOMA in a separate case from Massachusetts.  And, as Gene Schaerr, the attorney hired by Idaho to represent it in the Supreme Court, observed in the application for a stay, the 4th, 5th, 6th, 8th, 10th, 11th, D.C. and Federal circuits have all adopted the rational basis standard for evaluating sexual orientation discrimination claims.

Thus, although it might seem far-fetched that Idaho could get a stay pending appeal and perhaps a grant of Supreme Court review when that Court had turned down seven petitions just days before, there was an outside chance that Schaerr’s strategy would pay-off, intriguing enough justices to induce them to delay the implementation of this ruling while they decide whether to grant a petition for certiorari from Idaho.

Meanwhile, the Supreme Court “decision not to decide” on October 6 and the 9th Circuit’s decision on October 7 were having immediate effects.  In Colorado, a state in the 10th Circuit where the attorney general, John Suthers, had filed an appeal of a district court pro-marriage-equality decision, the writing on the wall was apparent to Suthers, who joined with marriage equality plaintiffs to get existing stays lifted and advised clerks throughout the state on October 7 to start issuing marriage licenses to same-sex couples.  When Colorado is added to the five states directly affected by the denials of certiorari, six states were added to the 19 (plus District of Columbia) where same-sex marriage is allowed and recognized.  Elsewhere in the 10th Circuit, state authorities in Wyoming and Kansas did not seem inclined to throw in the towel, and existing lawsuits will continue to be defended.

In the 4th Circuit, Virginia Governor Terry McAuliffe issued an executive order on October 7 directing that “all entities in the executive branch, including agencies, authorities, commissions, departments, and all institutions of higher education further evaluate all policies and take all necessary and appropriate legal measures to comply” with the 4th Circuit’s decision, which held that the state’s ban on same-sex marriages unconstitutionally violates a fundamental right to marry.  This would mean, for example, that state employees with same-sex spouses should be able to enroll them immediately for employee benefits coverage.  Elsewhere in the 4th Circuit, federal trial judges asked the parties in pending lawsuits in West Virginia, North Carolina and South Carolina to file papers giving their positions on how the cases should proceed.  In North Carolina, the attorney general had already indicated that he would no longer defend the state’s ban.  In South Carolina, although the attorney general was talking tough about soldiering on with the defense, at least one county probate judge began issuing marriage licenses on October 7.

In the 9th Circuit, there are federal marriage equality cases pending in Arizona, Alaska and Montana, and it seemed likely that those will proceed to summary judgments for the plaintiffs quickly unless the Supreme Court grants a stay pending appeal of the 9th Circuit’s decision, in which cases the judges might decide to delay their rulings and see what happens with Idaho’s anticipated petition for certiorari.

And, of course, still to be heard from were the 6th Circuit, where arguments on appeals from four states were heard early in August, and the 5th and 11th Circuits, where appeals from Louisiana, Texas and Florida are pending but arguments haven’t been scheduled yet.  In the Louisiana appeal in the 5th Circuit, Lambda Legal has accepted an invitation to join as co-counsel with the local attorneys representing the plaintiffs.

The 9th Circuit’s October 7 opinion listed an army of attorneys participating as co-counsel or amicus on all sides of the cases, which had been argued on September 8.  As noted above, Monte Neil Stewart argued on behalf of the Idaho defendants and the Coalition defending the Nevada ban.  Tara Borelli of Lambda Legal’s Atlanta office argued on behalf of the Nevada plaintiffs.  Deborah Ferguson, a Boise attorney, argued on behalf of the Idaho plaintiffs.

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Supreme Court Denies Review of Marriage Equality Rulings from Three Circuits

Today (October 6) the Supreme Court announced that it had denied petitions for certiorari in Bogan v. Baskin (Indiana), Walker v. Wolf (Wisconsin), Herbert v. Kitchen (Utah), McQuigg v. Bostic (Virginia), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), and Smith v. Bishop (Oklahoma).  In these cases the U.S. Courts of Appeals for the 4th, 7th and 10th Circuits had ruled in recent months that same-sex couples have a right to marry and to have their out-of-state marriages recognized under the 14th Amendment.  In each case, either the Supreme Court or the court of appeals had granted a stay of the ruling pending the states’ appeal to the Supreme Court.  Now that the Supreme Court has refused to review these cases, the stays will be lifted, and five more states will quickly be added to the existing marriage equality list, which already includes 19 states and the District of Columbia.

The Supreme Court’s action will also have a quick echo effect, as lawsuits are pending before federal trial judges in another six states that are within the jurisdiction of the 4th and 10th circuits: West Virginia, North Carolina, South Carolina, Wyoming, Colorado, and Kansas.  Judges in those cases are likely to grant summary judgment motions by the plaintiffs quickly, since their rulings are controlled by the court of appeals decisions.  Thus, in the coming weeks marriage equality will spread to these states as well, reaching a national total of 30 states with more than 60% of the nation’s population.  This would  bring the issue close to the tipping point of 34 states that had allowed interracial marriages when the Supreme Court struck down Virginia’s ban on such marriages in 1967.  With today’s announcement, marriage equality has swept the 7th Circuit, as Illinois adopted marriage equality legislatively last year and Wisconsin and Indiana are the only other states in the circuit.

Still to be heard from are the 6th Circuit, where the court of appeals heard oral arguments on cases from all four states in the circuit (Michigan, Ohio, Kentucky and Tennessee) early in August, and the 9th Circuit, where the court of appeals heard arguments from Idaho, Nevada and Hawaii early in September.  The other states in the 9th Circuit, where marriage equality cases are pending in federal trial courts, include Alaska, Montana, and Arizona.  Observers of the 6th Circuit oral argument had predicted that this might be the first circuit to rule against marriage equality, but the Supreme Court’s action today might influence how those judges are thinking about the issue.  There was no dissent from the denial of certiorari, which means none of the justices was willing to go on record as opposing lifting the stays and allowing marriage equality to go into effect in five more states.  This may send some sort of signal to the lower courts.  In the 9th Circuit, it is widely expected that the court — which previously struck down California Proposition 8 — would rule for marriage equality.

Least far along are the 5th, 8th and 11th Circuits.  In the 5th, the court has yet to schedule arguments on appeals from district court rulings in Texas and Louisiana, although it recently granted a motion to expedite briefing and hear those cases argued on the same day, probably in November.  The other state in that circuit is Mississippi, where litigation is pending in the trial court.  In the 8th Circuit, Minnesota and Iowa already have marriage equality, and an appeal is pending before the Arkansas Supreme Court of a marriage equality ruling by a state trial judge.  Cases are pending in trial courts in other states in that circuit: North and South Dakota, Nebraska and Missouri, where a state court judge ruled on October 3 that the state must recognize same-sex marriages contracted in other states and state officials have not announced whether they will appeal the ruling.  In the 11th Circuit, the circuit court has yet to schedule an argument on Florida’s appeal from a trial court pro-marriage equality ruling, and cases are pending in federal trial courts in Georgia and Alabama.  Not to be forgotten are cases pending in Puerto Rico and the Virgin Islands, which are in the 1st and 3rd Circuits, respectively.  All of the states in those circuits now have marriage equality, although the circuit courts have not ruled on the question.

A decision by the Supreme Court to deny a petition for certiorari is NOT a decision on the merits of the case.  That the Court decided to allow marriage equality to go into effect in five states (and, by extension, 11 states) without a Supreme Court ruling on the merits seems prudent, if not widely anticipated.   Justice Ruth Bader Ginsburg, a likely marriage equality supporter who has already officiated at several same-sex marriages and was part of the majority in U.S. v. Windsor, observed in a recent talk at the University of Minnesota Law School that she saw no urgency for the Supreme Court to get involved in this issue so long as there was no disagreement among the circuit courts of appeals.  There was, of course, human urgency, if not legal urgency, because the rulings affecting five states had been stayed, but that urgency is immediately dissipated by lifting the stays and allowing those decisions to go into effect.  The prudence of the Court’s decision to abstain inheres in the trend of public opinion.  Support for same-sex marriage increases as the number of states allowing such marriages grows, so the Court’s abstention will allow that trend to continue, making a later decision on the merits even less controversial than might have been the case had the Court been deciding when “only” 19 states allow same-sex marriage.

Indeed, some have speculated that abstention by the Supreme Court may make it possible to achieve marriage equality without a Supreme Court decision.  Some more states may see the handwriting on the wall, as did Hawaii and Illinois last year, and decide to amend their marriage laws to allow same-sex marriages.  Even though the denial of review is not a merits decision, lower federal courts may be influenced by it in deciding the remaining cases.  After all, it just takes four votes to grant certiorari.  If the four most conservative Republicans — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito – presumably opposed to marriage equality based on their dissenting opinions in U.S. v. Windsor (last year’s DOMA case), thought they had a chance of picking up the vote of Justice Anthony Kennedy, author of the Court’s Windsor decision, they would likely have voted to grant review in one or more of these cases.  The four Democratic appointees — Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — presumably marriage equality supporters based on their Windsor votes (and Justice Kagan has also officiated at a same-sex marriage) — may agree, as indicated by Justice Ginsburg, that there is no need to vote for review unless and until a circuit split develops.  No need tempting fate, given Justice Kennedy’s public silence on the matter.

The justices maintain absolute secrecy about what is said in their private conferences, so we may never learn what Justice Kennedy may or may not have said in last week’s conference to persuade his four Republican colleagues and his four Democratic colleagues to refrain from voting to grant review, but it seems a good bet that he gave no hope to the Republicans that they were likely to get his vote for a decision reversing these court of appeals rulings.  This gives grounds for optimism that if the issue does get to the Supreme Court in its current configuration, it will likely be decided in favor of marriage equality.  Time might change that calculus if a vacancy develops on the Court, but that’s another story. . .



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Federal Court Refuses to Dismiss Discrimination Claims by Married Same-Sex Couples Denied Benefits Plan Participation

A Washington State employer that refused for almost a year to allow employees to enroll their same-sex spouses in the employer’s health plan lost its motion to dismiss a discrimination lawsuit pending before U.S. District Judge Ricardo S. Martinez on September 22.  The employer, BNSF Railway Company, insisted that it could not provide the benefits because the employee benefits plan defined marriage as “between one man and one woman.”  The employer did not extend the benefits until January 1, 2014, after it had amended its plan through collective bargaining with its employees’ union to adopt a more inclusive definition of marriage, most likely in response to the Supreme Court’s ruling last year in U.S. v. Windsor and the subsequent federal recognition of same-sex marriages.

Michael Hall and Amie Garrand are employees of BNSF Railway in the state of Washington, where voters approved a marriage equality law during the 2012 general election.  After that law went into effect, Hall married Elijah Uber on January 21, 2013, and sought to enroll him as a spouse under the BNSF health care plan.  BNSF and its plan administrator, United Healthcare, refused to enroll Uber.  Amie Garrand encountered the same problem after she married Carol Garrand.  The employer rejected repeated attempts by Hall and Garrand to persuade it that under Washington law their legally valid marriages were entitled to equal treatment.  Hall and Garrand have now enrolled their spouses, but brought suit seeking damages for the exclusionary period and an Order by the court determining that legally-married same-sex spouses living in a state that recognizes their marriage are entitled to equal treatment under employee benefits plans.

Hall and Garrand asserted claims under the federal Equal Pay Act, which forbids employers from discrimination in compensation and economic benefits because of the sex of an employee, the Employee Retirement Income Security Act (ERISA), which authorizes federal courts to entertain lawsuits by employees seeking benefits due to them under employee benefit plans, and Washington’s Law Against Discrimination, which forbids employment discrimination because of sex and sexual orientation.  Hall also added a claim under Title VII of the federal Civil Rights Act of 1964, which forbids sex discrimination in terms and conditions of employment.  The railroad moved to have all claims dismissed, arguing that the federal discrimination claims were invalid because federal law does not forbid sexual orientation discrimination, that the state law claim was preempted by ERISA, and that the ERISA claim was subject to an arbitration provision in the employee benefits plan and so could not be litigated in federal court. The railroad also argued that there was no need for prospective relief, since it had changed its plan to provide equal coverage for same-sex spouses through negotiations with the union.

Judge Martinez ruled against the railway on all of its assertions except arbitration, finding that the ERISA claim must be dismissed.

The key to Martinez’s ruling was his agreement with the plaintiffs that the employer’s action could be challenged as sex discrimination.    The railroad had argued that “Mr. Hall is really alleging a claim of discrimination based on his sexual orientation, not his sex, which cannot be maintained under Title VII.”

“While acknowledging that it is often difficult to distinguish sex discrimination claims by people identifying as homosexual from those claims based solely on alleged sexual orientation discrimination,” wrote the judge, “the Court disagrees with Defendant’s interpretation of the instant claims.”  Judge Martinez quoted from the factual allegations in Hall’s complaint to show that he was actually contending that he was subjected to discriminatory treatment because he was male.  Hall pointed out that had he married a woman his application would have been accepted, but that the railroad had refused to cover Elijah “based solely on the fact that Michael as male.”  That is, if Hall were a female employee who had married Elijah, his application to enroll his spouse would have been accepted without question.  He pointed out that BNSF employs female engineers (his job classification) and provides coverage for their male spouses.

Hall’s complaint concludes on this point, “The one man/one woman definition of spouse used by BNSF to limit its liability to cover spousal health benefits amounts to a BNSF policy to discriminate against Michael Hall simply because he is male; under this policy, if he were a female married to Elijah, the benefit would be paid.”

Or, as Judge Martinez put it in rejecting the motion to dismiss, “Plaintiff alleges disparate treatment based on his sex, not his sexual orientation, specifically that he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males.”

Martinez found support for this conclusion in a 2009 ruling by 9th Circuit Judge Stephen Reinhardt, who published an opinion upholding a similar claim for benefits by the same-sex partner of a male federal public defender.  In that opinion, rendered as part of an internal 9th Circuit grievance procedure, Judge Reinhardt relied alternatively on the circuit court’s own internal ban on both sex and sexual orientation discrimination.  Martinez noted a handful of other federal trial court rulings that could be construed to have accepted similar arguments.

“While the court makes no comment with respect to the validity of Plaintiff Hall’s Title VII claim in the instant matter,” wrote Martinez, “it does  find that Plaintiff has satisfied the initial burden of stating a claim that is plausible on its face.  Accordingly, the Court denies Defendant’s motion to dismiss the Title VII claim.”  Martinez found on similar grounds that he should deny the motion to dismiss the Equal Pay Act claims by Hall and Garrand.  He also rejected the railroad’s claim of ERISA preemption of the state law claim, since ERISA preempts state anti-discrimination laws only to the extent that they go beyond the protections of Title VII. Having found that Title VII could plausibly apply to this case, Martinez found the motion to dismiss the Washington state law claim to be premature.

However, the Railway Labor Act, which applies to employment disputes affecting this employer, read in conjunction with the ERISA claim, would mandate that the ERISA claim go to arbitration rather than litigation, so Judge Martinez granted the motion to dismiss the ERISA claim.  That shouldn’t make any difference to the plaintiffs, who are now free to pursue their Title VII, EPA and Washington state discrimination claims in the federal lawsuit.  They could also file a grievance with the plan administrator and seek arbitration of their ERISA claim.

Rejecting the railroad’s argument that its extension of benefits effectively mooted the plaintiffs’ claim for prospective relief, Martinez observed that the railroad appeared to “misconstrue” that claim.  “Plaintiffs seek, inter alia, an Order determining whether health benefit for same-sex spouses in states where same-sex marriage is legal are mandated under current law and directing Defendant to provide health benefits to such same-sex spouses as a matter of right in the future.”  Since the court had found the sex discrimination claims to be plausible, wrote Martinez, “the Court cannot find at this time that their claims for such prospective relief are moot.”

The plaintiffs are represented by Seattle attorneys Duncan Calvert Turner and Cleveland Stockmeyer, with amicus assistance from Lambda Legal and Lambda’s cooperating attorney in Seattle, Jennifer S. Devine.  Lambda Legal’s involvement in the case signals that this litigation is about more than just financial recompense for the plaintiffs.  The public interest firm is in it for a published court order on the ultimate question of whether employers can refuse to provide benefits coverage to legally-married same-sex couples.  Thus a settlement of the financial claims, which might be in the offing in light of the court’s ruling on the motion to dismiss, may not be enough to end this litigation.

Interestingly, just days after this ruling, Gay & Lesbian Advocates & Defenders filed a similar Title VII claim with the Equal Employment Opportunity Commission on behalf of a Walmart employee, Jacqueline Cote, who was denied spousal health insurance for her wife, Diana Smithson.  Cote and Smithson married in 2004 in Massachusetts, where Cote is an associate at a Walmart store in Swansea.  Walmart denied their application for coverage repeatedly from 2006 through 2012.  In 2013, reacting to the Windsor decision and federal recognition of legal same-sex marriages, Walmart announced that it would change its policy effective January 1, 2014, so now Smithson is enrolled in the plan. But Cote and Smithson accumulated over $100,000 in unpaid medical bills for treatment of Smithson for several problems, including ovarian cancer that required expensive chemotherapy, during the period when Walmart refused to cover Smithson, for which they are seeking compensation in their discrimination case.

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Louisiana Trial Court Rules for Marriage Equality, Ordering Recognition and Granting Adoption of Child

In a sweeping victory for Angela Costanza and Chasity Brewer, Louisiana 15th Judicial District Court Judge Edward  B. Rubin ruled on September 22 that Louisiana must recognize their California marriage and allow Chasity to adopt their son, N.B., who was conceived through donor insemination with Angela the birth mother.  Louisiana Attorney General James “Buddy” Caldwell, one of the named defendants in the case, announced that the court’s order would be appealed directly to the Louisiana Supreme Court, by-passing the state’s 3rd Circuit Court of Appeals.

On virtually every point in his opinion, Judge Rubin disagreed with the recent decision by U.S. District Judge Martin L.C. Feldman, who had ruled that a marriage equality challenge must be rejected because of the Supreme Court’s 1972 ruling rejecting a marriage equality challenge from Minnesota, Baker v. Nelson, as not presenting a “substantial federal question.”  However, Judge Rubin never mentioned Judge Feldman’s ruling in his opinion.  On the other hand, he mentioned prominently and relied upon the U.S. Court of Appeals for the 10th Circuit’s decision in a marriage equality case from Utah, Kitchen v. Herbert, which that state has petitioned the U.S. Supreme Court to review.

Angela Costanza and Chasity Brewer lived together as same-sex partners in Louisiana and decided to have a child through donor insemination.  Their son, N.B., was born on August 1, 2004, and recently celebrated his 10th birthday.  Angela was the birth mother, and sperm was obtained from an anonymous donor.  Costanza and Brewer married in California in 2008, during the five-month period when same-sex marriages were being performed before the enactment of Proposition 8.  The California Supreme Court ruled in 2009 that the marriages performed during the summer of 2008 remained valid despite the passage of Proposition 8, which was later declared unconstitutional by the Supreme Court, restoring same-sex marriage in California in June 2013.

After the Supreme Court’s Windsor decision in June 2013, Costanza and Brewer’s marriage became recognized for purposes of federal law.  However, the Louisiana Department of Revenue issued a bulletin providing that such marriages would not be recognized under Louisiana’s tax laws, and that same-sex couples required to file their federal returns as “married” would be required to file state tax returns as “unmarried.”

On July 12, 2013, shortly after the Windsor decision, Costanza and Brewer filed a petition in the Louisiana District Court in Lafayette, seeking to have Chasity become the adoptive parent of N.B. and to have their marriage recognized in Louisiana.  The Attorney General’s Office received a copy of their petition, and asked the court to notify that office of any hearing in the case.  Although a notice was sent, nobody from the Attorney General’s Office showed up at the hearing before Judge Rubin on January 27, 2014.  Judge Rubin subsequently granted the adoption, but Attorney General Caldwell appealed, contending that his office had not been notified, and the 3rd Circuit Louisiana Court of Appeals vacated the adoption order on June 11, sending the case back to Judge Rubin to hold a new hearing in which the Attorney General’s Office could participate.  By this time the case had taken on a broader significance, as the plaintiffs were challenging the constitutionality of Louisiana’s constitutional and statutory ban on same-sex marriages, as well as the ban on recognizing their marriage or allowing their adoption.

Judge Rubin held the new hearing on September 15 and moved quickly to notify the parties of his decision on September 22, making the text of his opinion available on September 23, but crossing out the child’s initials throughout the decision.  However, the published opinion by the 3rd Circuit (see 140 So.3d 1263) contains those initials, so it seems odd that they would not be included in the unpublished trial court ruling, ostensibly to protect the anonymity of the child (which was effectively breached in any event since his parents are named in the opinion).

Judge Rubin granted Governor Bobby Jindal’s motion to be dropped as a defendant, finding that the governor was not a proper party to the lawsuit, but in every other respect Judge Rubin ruled in favor of the plaintiffs, including finding that Attorney General Barfield was an appropriate defendant, as were the Secretary of the Department of Revenue who had issued the tax ruling and the Registrar of Vital Records, who will be required to issue a new birth certificate for N.B. showing both parents.

Rubin’s ruling followed closely the recent ruling by the 10th Circuit in Kitchen v. Herbert, the Utah marriage case, finding that the Louisiana marriage ban violates the 14th Amendment.  He went beyond most of the recent marriage equality cases, however, by also accepting the plaintiffs’ argument that Louisiana’s refusal to recognize their marriage violates the U.S. Constitution’s Full Faith and Credit Clause.  That provision requires that states extend “full faith and credit” to “the public Acts, Records, and judicial Proceedings of every other State.”  There is some dispute among scholars and courts about whether this Clause requires states to recognize marriages performed in other states, regardless whether such marriages could be found to violate the policy of the state whose recognition is sought.

Rubin quoted from Milwaukee County v. M.E. White Co, a 1935 U.S. Supreme Court decision, where the Court held that “the public policy of the forum state must give way, because the ‘very purpose of the full-faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.”  He noted decisions requiring courts to honor divorce decrees issued in other states, including a case where the Supreme Court wrote, “If in its application local policy must at times be required to give way, such is part of the price of our federal system.”

As to the due process and equal protection claims, Rubin did not have to engage with the question whether heightened scrutiny applies to sexual orientation discrimination claims, as he followed the path of the 10th Circuit, finding that the case involves a fundamental right, and furthermore that “there is no rational connection between Louisiana’s laws prohibiting same sex marriage and its goals of linking children to intact families formed by their biological parents, or ensuring that fundamental social change occurs through widespread social consensus.”  He pointed out that “Louisiana already allows for foster parent adoptions where there is no linkage to a child’s biological parent or family.  Such placements have been found to be in the best interest of the child.  It would be illogical to say that intact families are only those that are formed by a child’s biological parents.”

As to the interest in reserving social change to a “consensus” of the people, Rubin concluded, “It is the opinion of this court that widespread social consensus leading to acceptance of same-sex marriage is already in progress.  The moral disapproval of same-sex marriages is not the same as it was when Louisiana first defined marriage as a union between a man and a woman.”

He rejected the state’s contention that “gays and lesbians can be treated differently, and yet be considered to be equal to the rest of Americans,” pointing to the pernicious “separate but equal” doctrine that had been struck down by the Supreme Court in its 1954 school segregation decision, Brown v. Board of Education.  He also stated agreement with the plaintiffs’ argument that Loving v. Virginia, the Supreme Court’s 1967 ruling striking down a ban on interracial marriage, was relevant to this case, and quoted from the 10th Circuit’s Kitchen opinion to that effect.  “Just a few decades ago in these United States,” he wrote, “miscegenation was illegal.  It is now something that most Americans in today’s society hardly even debate.  From a historical standpoint we’ve not been able to find any case law analogous to petitioner’s non-traditional marriage based on their sexual orientation, other than America’s miscegenation laws.  Those laws were eventually resolved in the Supreme Court decision in Loving v. Virginia.”

“This court does not believe that the historical background of Loving is so different from the historical background underlying state’s bans on same-sex marriage,” Rubin continued.  “One cannot look at Loving without recognizing that it was about racism as well as a couple’s decision to assert their right to choose whom to marry.”  And, concluding on this point, he wrote, “This court has been asked to determine whether for purposes of the due process clause, the right to marry someone of the same sex is a ‘right’ deeply grounded in our Nation’s history and tradition.  In line with what the Tenth Circuit said in Kitchen in regards to Loving; we respond by saying, the question for this court is not whether the right to marry someone of the same sex is deeply rooted in our Nation’s history and tradition; but the ‘right’ at issue is the freedom of choice to marry.”

The dozens of marriage equality opinions produced by courts since last December in Utah have one important point in common: the passionate response of the judges reflected in the language they have used to analyze the legal claims presented to them.  Judge Rubin shared in that passion, clearly reflected in this opinion issued just a week after he conduct his hearing.  However, he acceded to the state’s request that he hold up issuing a final Order in the case, giving the state an opportunity to appeal to the Louisiana Supreme Court as, simultaneously, the plaintiffs in the federal case are appealing to the 5th Circuit Court of Appeals.  On September 19, with the acquiescence of the plaintiffs in the federal case, the state moved the U.S. Court of Appeals for the 5th Circuit to expedite briefing and to schedule its hearing of the appeal to coincide with the hearing, yet to be scheduled, in the state of Texas’s appeal of De Leon v. Perry, a marriage equality ruling that was issued in February 2014 but not appealed until the last possible date by that state’s attorney general, Greg Abbott, who is running for governor on the Republican ticket.  Louisiana Attorney General Caldwell asked the 5th Circuit to schedule the argument for its November hearings.  By then, of course, it is possible that the U.S. Supreme Court will have announced whether it will consider one or more of the appeals now pending from rulings by the 4th, 7th and 10th Circuits, all of which have been stayed pending disposition by the Supreme Court.

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The Power of Full Faith & Credit and a Jury

Putting together the power of the U.S. Constitution’s Full Faith and Credit Clause and a verdict by a jury who got to see the parties testify, a Texas gay co-parent has preserved his status as “sole managing conservator” of the child he and his former partner/spouse conceived with the help of a gestational surrogate.  Herein lies a somewhat complicated tale providing new evidence of the extraordinary developments in LGBT family law over the past few years.  The case is Berwick v. Wagner, 2014 Westlaw 4493470.

Jerry Berwick and Richard Wagner began their relationship with each other in 1994.  They were legally married in Canada in 2003, and registered as domestic partners in California in 2005, but lived together in Houston, Texas, beginning in 1997.  They wanted to have a child through gestational surrogacy, and made a gestational surrogacy agreement with a married California woman in 2005.  A donated egg was fertilized with Berwick’s sperm and the resulting embryo was implanted in the surrogate, who gave birth to a son, called C.B.W. by the Texas Court of Appeals in Houston in its September 11 decision affirming the jury verdict.  Following a procedure commonly used in California, the men filed a court action before the child was born, through which a California court entered an order titled “Judgment of Paternity,” declaring that Berwick and Wagner were each to be a “legal parent” of C.B.W., ordering the hospital to list the two men as the child’s parents on the birth certificate, and declaring, consistent with the surrogacy agreement, that neither the birth mother nor her husband were legal parents of C.B.W.  After the child was born, Berwick and Wagner brought him back to Houston where they lived together as a family for several years, until Berwick ended his relationship with Wagner.

Berwick “got religion,” decided he wasn’t really gay, and ended up marrying a woman whom he met on-line.  When Berwick ended the relationship, Wagner took action to preserve his relationship with his son, filing a Suit Affecting the Parent Child Relationship in the Texas trial court in Harris County, seeking an order that Wagner and Berwick be appointed “joint managing conservators” of C.B.W.  This would give them equal parental rights, consistent with the California court order.  Berwick responded by arguing that as the biological father he should be appointed sole managing conservator.  He contended that Wagner lacked standing to seek custody because he was not “biologically related” to the child.

In a separate legal proceeding provided by Texas law, Wagner registered the California “Judgment of Paternity” in the Harris County court, and the trial court “confirmed” the California order, thus recognizing Wagner for purposes of Texas law as a legal parent of C.B.W., thus giving him standing to seek appointment as a managing conservator of the child.  Berwick appealed, the court of appeals affirmed the trial court’s order, and the state supreme court refused to review the case.

Thus, the original suit filed by Wagner went to trial.  In Texas, these cases are tried before a jury, which is charged with deciding who should be appointed as conservators for the child.  The jury decided that Wagner should be the sole managing conservator, appointing Berwick to the lesser status of possessory conservator, meaning he would be entitled to child visitation and some participation in decision-making for the child.  However, Wagner, the non-biological father, emerges as the main custodian of the child with the greater share of decision-making authority.

Berwick appealed this decision, as well as the trial court’s rejection of Berwick’s request that C.B.W.’s name be changed to omit the W.

In affirming the ruling, the court of appeals gave great weight to the full faith and credit clause of the Constitution.  A California court with appropriate jurisdiction of the parties had issued a judgment naming both men as legal parents of the child.  After quoting the federal constitutional provision, Chief Justice Sherry Radack wrote for the court, “Texas courts have thus consistently recognized that the ‘full faith and credit clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states.'”

“This full faith and credit has been repeatedly applied in Texas to other state’s adjudication of parentage,” Radack continued.  Referring to the California judgment that Wagner had registered with the Harris County court, Radack wrote, “This Court has already held that the judgment was properly registered in Texas, and that the California court had jurisdiction to enter the judgment.  The trial court correctly decided that this final, unappealed judgment adjudicating Wagner as C.B.W.’s parent — a judgment entered at the request of Berwick, Wagner, and C.B.W.’s surrogate mother and her husband — is entitled to full faith and credit.  And none of the arguments Berwick advances in support of his position that the trial court erred are supported under Texas law.”

Berwick was relying primarily on a public policy argument, grounded in the contention that a child in Texas can have only one legal father at a time and that surrogacy agreements under a Texas statute are unenforceable unless the intended parents are a married heterosexual couple.  However, wrote Radack, “Berwick cites no authority for deeming a foreign paternity judgment to be so repugnant to Texas policy to render it void and subject to collateral attack.  And Berwick’s arguments ignore the strong state public policies favoring stability and finality in matters of parentage evidenced by numerous statutes.”

The court also found that the question whether Berwick was the child’s biological father was essentially irrelevant to the outcome, rejecting his contention that as biological father he was solely entitled to custody of the child.  Since the Texas courts recognize Wagner as a parent of the child through operation of the California judgment, Berwick’s biological tie to the child is irrelevant to this lawsuit, because all legal parents are treated equally, whether they became parents through biology, adoption, or some other legal process.  In a custody dispute between legal parents, the court’s job is to decide what is in the best interest of the child, and Texas, unlike most other states, gives that task to a jury.  The court of appeals found that the trial record was full of evidence that would support the jury’s determination that Wagner would be the preferable managing conservator, since he was more likely to preserve the child’s relationship with his other father, while Berwick (and his wife) were hostile to Wagner playing any parental role in the child’s life.

“Specifically,” wrote Radack, “the jury had already heard about Berwick telling Wagner that he would never work with him to co-parent because Wagner needed to move on and ‘get his own family,’ ‘his own little boy.’  The jury had also heard recordings of Berwick on different occasions telling Wagner that C.B.W. is ‘not your child,’ ‘not your son,’ accusing Wagner of ‘destroying my child,’ and mocking Wagner for being ‘in denial,’ and pretending that C.B.W. is actually his son.”

Berwick also attacked the verdict by arguing that several potential jurors were excluded as victims of “religious discrimination.”  They were questioned about their views about the parties’ sexuality and marital status, and several potential jurors made statements suggesting that they could not, in the opinion of the trial court, give an unbiased consideration to the case.  “We conclude that the trial court did not abuse its discretion in finding these jurors to be disqualified,” wrote Radack.  “The trial court did not strike every panel member who indicated they might have religious objections to homosexuality; rather, the court struck only those jurors who unequivocally indicated that they held such strong convictions that they could not base their decisions on the law and evidence.”

The opinion included lengthy analysis of the trial record, from which the court concluded that “there is factually sufficient evidence to support the jury’s finding that appointing Wagner as sole managing conservator is in C.B.W.’s best interest,” and rejecting Berwick’s argument that the trial judge erred by denying Berwick’s request to change C.B.W.’s name to eliminate Wagner as his surname.  “Given that C.B.W.’s legal name was established by the California court at Berwick’s request and that Berwick does not argue here that a name change is in C.B.W.’s best interest,” wrote Radack, “we cannot conclude that the trial court erred.”

Wagner is represented by attorney Ellen A. Yarrell.  Berwick is represented by Austin R. Nimocks, a name that will be familiar to those who have been following the federal appellate arguments over marriage equality, since he is one of the attorneys who has been arguing against marriage equality in the courts, and is generally associated with religious opposition to same-sex marriage.

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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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