New York Law School

Art Leonard Observations

The Dominoes Continue to Fall as Federal Courts Strike Arkansas and Mississippi Marriage Bans

On November 25, 2014, U.S. district court judges in Arkansas and Mississippi issued rulings declaring unconstitutional the constitutional and statutory bans on same-sex marriage in those states.  In Arkansas, District Judge Kristine G. Baker stayed her ruling pending an appeal to the 8th Circuit Court of Appeals by the state, but the situation was complicated by another marriage equality case pending before the state’s Supreme Court, which may render this ruling superfluous depending on timing.  In addition, Attorney General Dustin McDaniel, a Democrat who personally supports same-sex marriage but who had claimed to be defending the ban as his duty, indicated that he would confer over the Thanksgiving holiday with the incoming Republican Attorney General, Leslie Rutlage, an opponent of same-sex marriage, before deciding whether to appeal.  In Mississippi, District Judge Carlton W. Reeves granted the state a two-week stay during which it may seek a further stay pending appeal from the 5th Circuit Court of Appeals, where marriage equality cases from Texas and Louisiana are scheduled for argument on January 9.  There was little doubt that the state would immediately seek a stay from the 5th Circuit.

Both of the judges who ruled on November 25 were appointed by President Barack Obama and seated during his first term of office, Judge Reeves in 2010 and Judge Baker in 2012.

Although dozens of federal district judges have issued rulings in similar cases over the past year, neither of these judges skimped on their opinions, exploring both procedural and substantive issues in depth, as their opinions will likely be appealed to circuit courts that have yet to weigh in on the questions presented.  Both judges were undeterred by the recent ruling by the U.S. Court of Appeals for the 6th Circuit, rejecting challenges to the marriage bans in Ohio, Michigan, Tennessee and Kentucky.  Both judges were not persuaded by 6th Circuit Judge Jeffrey Sutton’s reliance on the Supreme Court’s 1972 summary affirmance of negative ruling by the Minnesota Supreme Court as a currently binding precedent, finding that it had been superseded by more recent developments in the Supreme Court, and emphasizing that the overwhelming majority of federal courts considering this issue over the past year have found Baker to be no impediment to striking down the bans.

Both judges were writing their opinions against the obstacles of circuit court rulings that preluded certain doctrinal moves.  In the 8th Circuit, a 2006 decision rejecting a challenge to Nebraska’s constitutional amendment included language indicating that the court believed the amendment would survive rational basis review, which that court deemed the appropriate standard for evaluating claims of sexual orientation discrimination.  Undeterred, Judge Baker followed the lead of 9th Circuit Judge Marsha Berzon, whose concurring opinion in the Nevada/Idaho marriage ruling of October 7 argued that bans on same-sex marriage are a form of sex discrimination, and thus merit heightened scrutiny.  In the 5th Circuit, prior precedents also reject heightened scrutiny for sexual orientation discrimination claims.  This did not deter Judge Reeves, who found that the Mississippi marriage ban fails even the usually deferential rational basis test.

Both judges also ruled against the same-sex marriage bans under an alternative Due Process theory, finding that Supreme Court precedents recognize a fundamental constitutional right to marry as an individual right of every citizen, subjecting to strict scrutiny any attempt by the state to interfere with the choice of marital partner.  A law that does not survive rational basis review or heightened scrutiny cannot, by definition, survive strict scrutiny, the most demanding level of judicial review.

Both judges were also careful to address various procedural and jurisdictional arguments raised by the state defendants, systematically and respectfully analyzing and then rejecting them.  Judge Baker confronted a particularly complicated argument, as the Arkansas Supreme Court held oral arguments less than a week earlier in the state’s appeal of a trial judge’s marriage equality ruling from earlier in 2014, and there is some argument that federal courts should abstain from deciding issues that are pending in the state courts.  Judge Baker demonstrated that there were distinctions between the cases that counseled against federal court abstention, not least that the plaintiffs in the federal case were not participating in the state case.  Both judges emphasized the duty of federal courts to deal with federal constitutional claims when they are appropriately presented by plaintiffs have meet the standing requirements.

The plaintiffs in the Arkansas case had presented Judge Baker with a panoply of constitutional arguments, and she carefully picked among them, rejecting — as have some other judges in recent decisions — the argument that the state’s failure to recognize marriages contracted out of state violates the constitutional right to travel between the states, as well as rejecting the plaintiff’s sexual orientation discrimination claim.  However, she found that while the plaintiffs had met all the tests required to obtain an injunction against the state, the Supreme Court’s issuance of a stay in January in the Utah case set the path for her response to the state’s request in this case to keep the ruling from going into effect while the state appeals.  However, she wrote, “If no timely notice of appeal is filed, this injunction shall take immediate effect upon the expiration of the time for filing a notice of appeal.”

Judge Reeves’ decision was substantially longer than Judge Baker’s, because he decided, despite 5th Circuit precedent, to take on the question whether sexual orientation discrimination claims should be subjected to heightened or strict scrutiny.  One suspects this was a reaction to extraordinary briefing on the question provided by the plaintiffs and their amici.  As a result, Reeves’ opinion includes within it a virtual monograph on the history of anti-gay discrimination in Mississippi, leading him to explicitly counter the suggestion by some judges that gay marriage litigants don’t need the assistance of the federal courts since they can obtain the right to marry through the ordinary political process.  While that might be possible someday in Michigan, for example, wrote Reeves, it seemed unlikely in Mississippi.

“A common argument against homosexual equality is that the gay and lesbian community is so popular that it needs no judicial protection from the will of the majority,” wrote Reeves.  “In this vein, the U.S. District Court for Nevada, which upheld that state’s same-sex marriage ban until the Ninth Circuit reversed, found that ‘the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals.’  He noted that the President now supports same-sex marriage.  But pointing to statements of popular support, those of individual politicians, or even the national ‘climate’ is not the standard.  The standard is whether homosexuals in Mississippi have ‘the strength to politically protect themselves from wrongful discrimination.’  Much of that discrimination, of course, happens at the state and local levels, far from celebrities and national politicians.  On this question, it can only be concluded the Mississippi’s gay and lesbian community does not have the requisite political strength to protect itself from wrongful discrimination.”  He noted particularly that the Mississippi anti-gay marriage amendment passed by the largest margin of any of the numerous such measures that appeared on state ballots in 2004, as well as the recent enactment of a measure that “was perceived to condone sexual orientation discrimination” by allowing businesses to deny their services based on the owners’ religious objections.

Thus, argued Reeves, if he were free from binding 5th Circuit precedent, he would apply heightened scrutiny to the plaintiffs’ sexual orientation claim, and he suggested that the 5th Circuit should reconsider its precedent.  He would not take the alternative approach of treating this as a sex discrimination case in order to apply heightened scrutiny because, as he pointed out, it was unnecessary to do so.  He was invalidating the ban using strict scrutiny under the Due Process Clause, and he also found that none of the state’s articulated justifications for the ban even met the less demanding rational basis test for an Equal Protection analysis.

Both Reeves and Baker, countering contentions by the state that U.S. v. Windsor was a federalism ruling that support the state’s right to ban same-sex marriages, invoked Justice Scalia’s dissents in Windsor and Lawrence v. Texas, in which one of the most conservative justices on the Supreme Court asserted that the reasoning of the Court in those cases would create an argument in support of a constitutional right for same-sex couples to marry.

“Today’s decision may cause uneasiness and concern about the change it will bring,” he concluded.  “But ‘things change, people change, times change, and Mississippi changes, too,” he wrote, quoting the former segregationist governor, Ross R. Barnett, Jr., who he commented “knew firsthand” the truth of these words.  “Mississippi continues to change in ways its people could not anticipate even 10 years ago,” when the marriage amendment was passed.  “Allowing same-sex couples to marry, however, presents no harm to anyone.  At the very least, it has the potential to support families and provide stability for children.  This court joints the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law.  The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children.  Mississippi’s statute and constitutional amendment violate the Fourteenth Amendment to the United States Constitution.”

Lead counsel for plaintiffs in the Mississippi case is Roberta Kaplan of New York’s Paul Weiss Rifkind Wharton & Garrison, who represented Edith Windsor in her successful challenge to Section 3 of the federal Defense of Marriage Act.  Jack Wagoner, a Little Rock attorney, is lead counsel in the Arkansas case.

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New York High Court Affirms Setting Aside Hate Crime Conviction as Inconsistent

The New York Court of Appeals, the state’s highest court, ruled unanimously on November 24 that the Appellate Division had correctly reversed the hate crime manslaughter conviction of Dwight R. DeLee, who was charged in the murder of a New York transgender woman named Lateisha Green, because the jury’s verdict was inconsistent.  However, the court modified the Appellate Division’s decision by granting the prosecution an opportunity to resubmit the charge of manslaughter in the first degree as a hate crime to another grand jury, which may lead to a new prosecution.

The decision for the court by Judge Susan P. Read reveals nothing about the nature of the charged offense, and makes no reference to the fact that the victim was a transgender woman or that the defendant was charged with murdering her because of her gender identity.  Instead, the coldly analytical opinion focuses solely on the inconsistency in the jury’s verdict and the trial judge’s failure to correct the situation by explaining the inconsistency to the jury and asking them to resume deliberations to produce a consistent verdict.  A casual reader of the court’s opinion in isolation would have no idea what the case was actually about.

Under New York law, a jury can convict on a hate crime charge if they find all the elements of an underlying crime plus the element of bias on grounds prohibited by the state’s hate crime law.  DeLee was indicted for second-degree murder as a hate crime, second-degree murder, and third-degree criminal weapon possession.  The jury convicted him of first-degree manslaughter as a hate crime and a weapon possession offense, but acquitted him on the charge of first-degree manslaughter.  After the verdict was rendered, DeLee’s attorney argued that the verdict was inconsistent, since the acquittal on the manslaughter charge could be taken to mean that the jury found that the prosecution failed to prove all the elements of the crime of manslaughter.  If so, of course, logically DeLee could not be found guilty of manslaughter as a hate crime.

The defense lawyer moved to set the verdict aside as “repugnant,” a technical term meaning that it was fatally flawed due to inconsistency.  The trial judge denied the motion, and sentenced Lee to 25 years in prison.  But Lee successfully appealed, persuading the Appellate Division that the verdict was repugnant.  There was a heated dissenting opinion by Justice Erin Peradotto, who focused on the lack of clarity in the trial judge’s charge to the jury and the obvious misunderstanding by the jury that if they found all the elements of manslaughter as a hate crime satisfied, they should not acquit on the simple manslaughter count.  By its conviction, she argued, the jury was clearly indicating their conclusion that all the manslaughter elements had been met.

Judge Read wrote that this case “presents a straightforward application” of the relevant Court of Appeals precedents, “which clearly contemplate that when jury verdicts are absolutely inconsistent, the verdict is repugnant.  The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime.”   Since the jury in this case acquitted DeLee of manslaughter, it arguably found that the prosecution failed to prove at least one element of that crime.

Read continued, “Repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and the instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.  In making these determinations, it is inappropriate for the reviewing court to attempt to divine the jury’s collective mental process.  Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts.”

The prosecution had presented an affidavit from the jury foreperson, attesting to the jury’s intention to convict DeLee, but the court dismissed that as “the opinion of just one juror, and, in any event, [it] cannot be considered under our longstanding precedent.”

However, the court concluded that the Appellate Division’s decision to order absolute acquittal of DeLee went too far, because “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element.”  It is possible that a jury has decided to acquit on a lesser-included charge, as here, in order to exercise mercy.  “But if this mercy function is the cause of a repugnant verdict,” wrote Read, “the remedy of dismissal of the repugnant conviction is arguably unwarranted.  Indeed, it provides a defendant with an even greater windfall than he has already received.”  The court concluded that “permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance.  This is particularly so given that a reviewing court can never know the reason for the repugnancy.  Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury.”

If the new grand jury indicts DeLee on the manslaughter as a hate crime charge, he can be retried on that charge without violating the ban on “double jeopardy” since he was not acquitted on that charge at the previous trial.  The federal constitution’s double jeopardy provision prohibits retrying a criminal defendant on a charge of which he has been acquitted by a jury.

In a concurring opinion, Judge Sheila Abdus-Salaam explained at length how a trial judge in a hate crime case should charge the jury to avoid the problem of inconsistent verdicts.  She concluded that “courts would provide particularly clear and legally correct guidance on this subject by telling the jury to treat a non-hate crime as a lesser included offense of an equivalent hate crime allegedly committed via the same criminal acts” and thus that “it is impossible to commit the hate crime without also committing the ordinary crime” on which it is based.  “To that end,” she wrote, “the court should instruct the jury that if it convicts the defendant of the greater offense, it will not consider the lesser included offense.  In that situation, the jury should be told to deliberate on any unrelated charges based on different criminal conduct,” such as the weapons possession charge in this case.  “Of course, if the jury instead acquits the defendant of the hate crime, it should next deliberate on the equivalent ordinary offense, and in the event of an acquittal on that ordinary charge, it may consider any lesser hate crime or lesser included ordinary crime which has been charged based on the same conduct.”

In this case, DeLee was charged with second-degree murder as a hate crime, for which ordinary second-degree murder, manslaughter as a hate crime, and ordinary manslaughter are lesser included offenses.  It is easy to see how a jury could become confused and produce a repugnant verdict, even if it concluded that the defendant was guilty of a hate crime.  The party most likely at fault for this result is the trial judge, whose failure to instruct the jury immediately upon the rendition of the inconsistent verdict and to resubmit the case to them has generated all the subsequent litigation on appeal.  Now the local prosecutor will get a second chance to seek justice for Lateisha Green by retrying Dwight DeLee.

James P. Maxwell represented the prosecution on appeal and Philip Rothschild represented DeLee.  Lambda Legal, the District Attorneys Association of NY and the NY State Association of Criminal Defense Lawyers submitted amicus briefs.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Federal Court Refuses to Dismiss South Dakota Marriage Equality Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Kohout rejected both arguments.

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

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

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

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

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

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

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

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Supreme Court Lets Kansas Marriage Decision Go Into Effect

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

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

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

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

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

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

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First Marriage Equality Ruling in from South Carolina

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

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

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

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

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

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

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

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

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

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Federal Courts in Missouri and West Virginia Issue Marriage Equality Rulings

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

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

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

Take that, Judge Sutton!

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

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

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

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

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

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

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

 

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