New York Law School

Art Leonard Observations

Archive for the ‘Uncategorized’ Category

Supreme Court Grants Four Petitions to Review 6th Circuit’s Marriage Ruling

Posted on: January 19th, 2015 by Art Leonard No Comments

The U.S. Supreme Court announced on January 16, 2015, that it was granting four petitions to review the 6th Circuit Court of Appeals ruling in DeBoer v. Snyder, 772 F.3d 388 (Nov. 6, 2014), which had rejected the claim that same-sex couples have a constitutional right to marry and to have such marriages recognized by other states.  The 6th Circuit’s ruling, issued on November 6 on appeals by four states from district court pro-marriage equality decisions, had opened up a split among the circuit courts, as the 4th, 7th, 9th and 10th Circuits had all ruled in favor of marriage equality claims during 2014, and the Supreme Court had refused on October 6 to review the rulings by the 4th, 7th and 10th Circuits.  (The 9th Circuit ruled was issued the day after the Supreme Court announced the three cert. denials, and only one of the two states involved in that case, Idaho, has filed cert. petitions, on which the Court has not taken action.) DeBoer v. Snyder, No. 14-571, cert. granted, 2015 WL 213650 (Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, cert. granted, 2015 WL 213646 (Jan. 16, 2015); Tanco v. Haslam, No. 14-562, cert. granted, 2015 WL 213648 (Jan. 16, 2015); Bourke v. Beshear, No. 14-574, cert. granted, 2015 WL 213651 (Jan. 16, 2015).  Attorney General Eric Holder, Jr., quickly announced that the Justice Department would file a brief with the Court urging reversal of the 6th Circuit.

The Court’s announcement of the cert. grant was accompanied by an announcement that the cases have been consolidated for the Court’s consideration, and that the grant was limited to the following two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?  The Court allotted 90 minutes for oral argument on Question 1 and 60 minutes for oral argument on Question 2.  Presumably these time allocations were made to assure that attorneys representing each of the four states involved – Ohio, Michigan, Kentucky and Tennessee – would have time to argue, and that representatives of each of the Petitioners would also have sufficient time.   Also, presumably, the questions were phrased this way and the argument divided into two parts because some of the cert. petitions address only marriage recognition, while others asked whether states are required to let same sex couples marry.

Three of the cases were decided on pretrial motions while the Michigan decision (DeBoer) followed a full trial on the merits, providing the Court with a trial record and detailed factual findings by the district court.  The Court limited the parties to briefing on the merits and presenting oral arguments on the questions presented in “their respective petitions.”  Thus the parties in the Ohio (Obergefell) and Tennessee (Tanco) cases will be arguing on Question 2, while the parties in the Michigan (DeBoer) case will address Question 1, and the parties in the Kentucky case (Bourke) case will be arguing on both questions.  Presumably the Court also scheduled a separate argument on the recognition question because it implicates some different doctrinal issues from the marriage argument.  Indeed, the recognition question could be decided by a straightforward extension of U.S. v. Windsor without ever addressing whether states are required to issue marriage licenses to same sex couples, since the states are not really presenting significantly different arguments from those raised by the defenders of DOMA as reasons for the federal government to refuse to recognize same sex marriages.   The Court’s announcement did not specify how the time would be divided between the parties, but presumably Petitioners will get half the time and Respondents will get half the time and perhaps be left to work out among themselves how to allocate the time within their share.  Several LGBT litigation groups are among the attorneys representing Respondents.

The Court’s announcement included a tight briefing schedule calculated to get the case argued and decided before the end of the Supreme Court’s term in June.  Petitioners’ merits briefs are due by 2 pm on Friday, February 27, Respondents’ briefs by 2 p.m. on Friday, March 27, and all reply briefs by 2 p.m. on Friday, April 17.  Potential amici would be subject to the same tight briefing schedule.  The last scheduled argument date on the Court’s calendar for the October 2014 Term is April 29, 2015, so it seems likely the arguments will be held on April 27, 28 or 29, which would give the Court two months to settle on opinions if it wants to release them before the term ends.  According to the Court’s posted calendar, the last date for announcing decisions is June 29, but the Court has been known to extend the end of the term by a few days to dole out end-of-term opinions as they are ready.

The Court’s actions since October 6 may provide some insight in trying to forecast how the Court will ultimately rule.  After it denied certiorari in the cases from the 4th, 7th, and 10th Circuits on October 6, the Court denied all subsequent motions from other states in those circuits to stay subsequent marriage equality rulings issued by district courts there.  The Court similarly denied all motions to stay district court rulings from states in the 9th Circuit after that circuit’s October 7 ruling.  Most significantly, the Court issued an order on December 19, denying a motion by Florida Attorney General Pam Bondi to stay a U.S. District Court marriage equality ruling in that state, pending the state’s appeal to the 11th Circuit Court of Appeals.  That a majority of the Supreme Court was not willing to stay the Florida ruling, even though the case was yet to be decided by the 11th Circuit, spoke volumes about the likely outcome of its decision on the merits.  If a majority of the Court was not willing to stay the Florida ruling pending appeal, it seems likely that a majority of the Court is ready to rule on the merits in favor of marriage equality.  Only Justices Antonin Scalia and Clarence Thomas were announced as disagreeing with the Court’s denial of a stay.  Although it is always hazardous to predict what the Supreme Court will ultimately do on an issue as to which it is likely to be sharply divided, it is also likely that there will be some consistency between the Court’s actions on stay motions after October 6 and its final ruling.  It is worth noting that prior to October 6, the Court granted every stay motion presented by a state seeking to delay lower court marriage equality decisions pending appellate review.

Over two years ago, the Court announced in December 2012 that it would review a decision by the 9th Circuit Court of Appeals that struck down California’s Proposition 8, a state constitutional amendment enacted by voter initiative in 2008 that banned the performance or recognition of same sex marriages in California.  At that time, the Court added a question to those posed by the defenders of Prop 8 in their petition for review of the lower court decision striking it down: whether the Petitioners had “standing” to appeal the original ruling by the district court in San Francisco?  As none of the California officials named as defendants in Perry v. Schwarzenegger was willing to defend Proposition 8 on the merits, the district court had allowed the proponents of the initiative to intervene, and it was they who were appealing the ruling.  During the oral argument in that case, titled Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), some of the time was taken up by arguments about the Petitioner’s standing, but the remaining time was devoted to arguing the merits.  Those curious about the types of questions the Supreme Court justices might pose to attorneys on Question 1 in the DeBoer case can access the audio recording of the oral argument on the Supreme Court’s website.  (The oral argument in Hollingsworth did not focus on the recognition question.)

Based on the Hollingsworth oral argument, there were predictions that the Court might vote 5-4 to strike down Proposition 8, but ultimately the Court concluded, in an opinion by Chief Justice John G. Roberts, Jr., that the Petitioners did not have standing, thus leaving the district court’s ruling in place and effectively striking down Proposition 8 without a Supreme Court ruling on the merits, on June 26, 2013.  Same sex marriages resumed in the nation’s most populous state a few days later.  The dissenting opinion in Hollingsworth was written by Justice Anthony M. Kennedy, Jr., who argued that the Court had erred in finding lack of standing but who carefully limited his opinion from expressing any view as to the constitutionality of Proposition 8.

Justice Kennedy was the author of the other momentous marriage equality decision issued on the same day, United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court voted 5-4 to declare unconstitutional the federal definition of marriage in the Defense of Marriage Act.  In common with Kennedy’s earlier gay rights opinions in Romer v. Evans and Lawrence v. Texas, his Windsor opinion was not ideally clear about its doctrinal grounding, never expressly stating that the case involved a fundamental right or a suspect classification, or merited heightened scrutiny, thus spawning a variety of views from legal commentators and lower court judges and the precedential meaning of the opinion.  The 9th Circuit construed Windsor to be a suspect classification case, and decreed “heightened scrutiny” as the standard to apply in subsequent equal protection cases brought by gay plaintiffs.  See Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, motion for rehearing en banc denied, 759 F.3d 990 (9th Cir. 2014). On this basis the 9th Circuit subsequently struck down the Nevada and Idaho same sex marriage bans in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), petitions for cert. pending.  Some other courts ducked these issues, instead striking down bans on same sex marriage by finding that none of the alleged justifications for the bans survived some form of rational basis review, or that the bans were products of unconstitutional animus.  Some commentators have suggested that Kennedy’s decision is most explicable as being based on his view that DOMA was an expression of animus against gay people by Congress.  Justice Antonin Scalia, dissenting from the Court’s decision, argued, as he had in his Lawrence dissent ten years earlier, that the majority opinion would support claims for the right of same sex couples to marry, and many of the lower court decisions cited and quoted from one or both of his dissents in support of their conclusions.

The Windsor ruling led to an avalanche of marriage equality lawsuits in every state that did not allow same sex couples to marry. The avalanche of lawsuits soon turned into an avalanche of court opinions.  Within weeks of Windsor, the federal district court in Ohio had ordered preliminary relief in Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, July 22, 2013), a marriage recognition case, and in December the district court in Utah issued a ruling on the merits striking down that state’s same sex marriage ban in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah, Dec. 20, 2013).  Dozens of district court rulings and rulings by four circuit courts of appeals followed during 2014, so that by the time the Court granted cert. to review the 6th Circuit decision on January 16, 2015, same sex couples could marry in 37 states and the District of Columbia.  (In two of those states, Kansas and Missouri, disputes about the scope of lower court rulings made marriage available only in certain counties while the litigation continued.) There were also marriage equality district court decisions pending on appeal before the 1st, 5th, 8th and 11th Circuits.  The only federal courts to have rejected marriage equality claims after Windsor were district courts in Louisiana and Puerto Rico and the 6th Circuit Court of Appeals, in the consolidated case from four states that the Supreme Court will review.  A week before granting cert. in the 6th Circuit case, the Court rejected an attempt by Lambda Legal to get direct review of the Louisiana decision, Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014), cert. denied, 2015 WL 133500 (Jan. 12, 2015).  The Court denied that petition just days after the 5th Circuit heard oral arguments in that appeal as well as state appeals from marriage equality rulings in Texas and Mississippi.

The most pressing question presented by the cert. grant, of course, is whether the Court will use this case to declare a constitutional right to marry throughout the United States, and to have those marriages recognized wherever a married couple might travel or reside.  But to those following the course of gay rights in the courts, the question of what rationale the Court uses to decide the case will also be pressing, especially as the various circuit court decisions have adopted different theories that might have a different impact for litigation about other issues.  This case may also give the Court an opportunity to clarify the circumstances under which lower federal courts are bound to follow an old Supreme Court decision whose rationale appears to have been eroded by subsequent legal developments.

The 6th Circuit opinion by Circuit Judge Jeffrey Sutton held that the Supreme Court’s dismissal of a constitutional challenge to Minnesota’s same-sex marriage ban in Baker v. Nelson, 409 U.S. 810 (1972), precluded a ruling for the plaintiffs, as the Supreme Court had never overruled or disavowed that decision, in which the Court had stated that the issue of same-sex marriage did not present a “substantial federal question” with no further discussion or explanation.  That ruling was also cited by the Louisiana and Puerto Rico district courts in their rejection of marriage equality claims, and it played a prominent role in a lengthy dissenting opinion issued just a week earlier by 9th Circuit Judge Diarmuid O’Scannlain, protesting his court’s refusal to reconsider its marriage equality ruling as requested by Idaho Governor Butch Otter.  See Latta v. Otter, 2015 WL 128117 (Jan. 9, 2015).

The question of the continuing precedential authority of Baker v. Nelson came up during the oral argument at the Supreme Court in Hollingsworth, the Proposition 8 case, when counsel for the Prop 8 proponents argued that the district court should not have ruled on the merits in that case because of Baker.  At that time, Justice Ruth Bader Ginsburg dismissed Baker’s significance, point out that when Baker was decided the Court had not yet issued its rulings holding that heightened scrutiny applied to sex discrimination claims.  Because the 6th Circuit put such weight on Baker v. Nelson, it is likely to be discussed again during the DeBoer argument, and might also be addressed in the Court’s subsequent opinion.

The 4th, 7th, 9th and 10th Circuits all held that Baker was no longer a binding precedent, noting that since 1972 the Court had expanded its view of the fundamental right to marry in a series of cases building on its historic 1967 decision striking down Virginia’s criminal law banning interracial marriages, Loving v Virginia; that it had struck down an anti-gay state constitutional amendment on an equal protection challenge in Romer v. Evans in 1996; that it had struck down anti-gay sodomy laws in Lawrence v. Texas in 2003; and, of course, that it had struck down as violating both due process and equal protection the federal ban on recognizing same sex marriages in Windsor in 2013. In light of all these developments, even though the Court had never expressly overruled Baker, it would be ludicrous to suggest that same sex marriage does not present a “substantial federal question” after June 26, 2013. Even the Court’s most outspoken opponent of gay rights, Justice Antonin Scalia, might conceded to that point, since his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor both proclaimed that the rationale of the majority opinions in those cases would open up claims for same-sex marriage, rendering the Court’s ipse dixit in Baker irrelevant.  The Windsor majority opinion did not even mention Baker v. Nelson, which the court below, the 2nd Circuit, dismissed as not relevant to the questions presented in that case.

The courts that have rejected marriage equality claims relying on Baker have stressed that the Court’s summary dismissal in Baker followed by several years its ruling in Loving v. Virginia.  They argue that this makes clear that the fundamental right to marry, as identified in Loving, could not extend to same sex couples; if it did, they argued, the Court would not have dismissed the Baker appeal.  This argument treats Loving as entirely a race discrimination case, but it conveniently ignores the way Loving was expanded by the Supreme Court in subsequent cases, including Turner and Zablocki, which spoke broadly of the fundamental right to marry as transcending the narrow issue of procreation and didn’t turn on racial issues.

In the marriage equality decisions during 2014 from the 4th and 10th Circuits, Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, sub nom Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6, 2014), the courts held that same-sex couples were being deprived of a fundamental right to marry, and that the states had failed to show that they had compelling justifications for abridging that right.  Hedging their bets, these courts also found that the state’s justifications failed to meet rationality review.  A Supreme Court ruling on this ground would not disturb the Court’s continuing reluctance to find explicitly that sexual orientation is a suspect classification, which would raise a presumption of unconstitutionality every time the government adopts a policy that discriminates on that basis and would put the burden on the government to prove an important, even compelling, policy justification to defend its position.  On the other hand, the 7th and 9th Circuits, in Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied sub nom. Bogan v. Baskin and Walker v. Wolf, 135 S.Ct. 316 (Oct. 06, 2014), and Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied,  2015 WL 128117 (Jan. 9, 2015), premised their decisions on equal protection, with the 9th Circuit, in line with its earlier ruling in a jury selection case, holding that sexual orientation discrimination calls for heightened scrutiny and the 7th Circuit following a similar path without articulating the “suspect classification” terminology.  A Supreme Court ruling based on equal protection that overtly applies heightened scrutiny would have a more far-reaching effect in other gay rights cases outside the marriage issue, which is why it seems more likely that the Court would take the due process route, or, as some argue that Justice Kennedy did in Windsor, attribute the same-sex marriage bans to unconstitutional animus and avoid any overt expression as to the other doctrinal issues.  The Court might be leery about reaffirming too broad a fundamental marriage right, for fear that it would put in play constitutional challenges to laws penalizing polygamy, adultery, and incest (as Scalia argued in his Lawrence dissent).  A ruling premised on finding animus as the prima motivator of same sex marriage bans would end the bans without necessarily altering Supreme Court doctrine applicable to any other gay-related or marriage-related issues that might come before the Court.

Most predictions about how the Court may rule presume that the Windsor majority will hold together and that the Windsor dissenters would dissent.  That would make Justice Kennedy the senior member of the majority who would likely assign the opinion to himself, as he did in Windsor.  (Now-retired Justice John Paul Stevens was the senior justice in the majority in Romer and Lawrence and assigned those opinions to Justice Kennedy, who returned the favor in Lawrence by prominently citing and quoting from Stevens’ dissenting opinion in Bowers v. Hardwick.)  Nobody is predicting that Justices Scalia, Thomas or Samuel Alito would abandon their dissenting votes in Windsor to join a marriage-equality majority, so they are unlikely to have any role in determining the Court’s doctrinal path in the case.  Indeed, Judge Sutton’s opinion for the 6th Circuit defiantly embraced the “originalism” approach advocated by Justices Scalia and Thomas for construing the 14th Amendment (an approach never endorsed by a majority of the Court), under which a claim for marriage equality would founder on the argument that the mid-19th century framers of that amendment could not possibly have intended or understood that its provisions would require states to license marriages by same sex couples.  Justice Kennedy, whose opinions in Lawrence and Windsor clearly disavowed an originalist approach to interpreting the scope of liberty protected by the due process clause, would never agree to these arguments.   However, there has been speculation that Chief Justice Roberts might join the majority, which would give him control of the opinion assignment.  In that case, one might expect a narrowly-focused opinion intended to keep together a doctrinally diverse majority of the Court, and intended to have as little effect on other cases as possible.

In the wake of the cert. grant, several media commentators tried to find particular significance in the Court’s wording of the questions and division of the argument, suggesting that the majority of the Court might have a plan to rule for the Petitioners on marriage recognition while ruling for the Respondents on the question whether states must license same sex marriages.  Such an approach was floated by 5th Circuit Judge James Graves in his questioning on January 9 during oral arguments of the appeals from Texas, Mississippi and Louisiana, but strongly refuted by counsel for the plaintiffs in those cases.  One suspects that the 5th Circuit may hold off on issuing a ruling now that the Supreme Court has granted cert. to decide these questions, in which case we may never find out whether Judge Graves is committed to that course.  However, in light of the procedural and substantive posture of the cert. petitions coming up from four different states, the Court’s organization of the questions and division of the argument appears more a logical response to a complicated appellate situation than a strategic move to produce a “split the baby” decision.

Rhode Island Supreme Court Rules Catholic Firefighters’ Constitutional Rights Not Abridged by Assignment to Staff Fire Truck in Gay Pride Parade

Posted on: December 31st, 2014 by Art Leonard No Comments

The Rhode Island Supreme Court unanimously ruled on December 19 that two Providence fire fighters with religious objections to homosexuality did not enjoy a First Amendment right to decline an assignment to staff a fire truck participating in the 2001 Pride Parade in their city.  Fabrizio v. Providence, 2014 R.I. LEXIS 158.  The court reversed a decision by Providence County Superior Court Justice Brian Van Couyghen, who had denied a motion for summary judgment filed by two of the defendants, the former mayor and former fire chief of Providence, who had asserted qualified immunity from liability in the case.

According to the opinion for the court by Justice William R. Robinson III, the Providence Fire Department received numerous requests each year for fire trucks to participate in parades and other public events.  In 2001, Fire Chief James Rattigan, apparently in consultation with Mayor Vincent A. Cianci, Jr., decided to respond affirmatively to such a request from the Rhode Island Pride Commission, and they ordered that a fire truck and associated crew from Engine Company 7, the company stationed closest to the parade route, take part.  Two of the assigned firefighters, Theodore J. Fabrizio, Jr., and Stephen J. Deninno, self-described Roman Catholics with moral objections to homosexuality, protested the assignment, but Chief Rattigan directed them to comply and they reluctantly did.  They allege that they had heard that Mayor Cianci had ordered the company’s participation.  After stewing about their experience for a few years, they both filed lawsuits against Cianci, Rattigan, and the City of Providence, asserting various claims of discrimination, infliction of emotional distress, and violation of their constitutional rights.

The fire fighters allege that they were subjected to various kinds of verbal harassment from parade onlookers, received threatening and obscene phone calls after the event, and suffered harassment as well from fellow fire fighters.

The case has gone back and forth between the state and federal courts, and substantial discovery has taken place.  Over the course of the litigation, several of the counts have fallen out of the case.  Cianci and Rattigan, who no longer occupied their official positions, filed a motion for summary judgment on grounds of qualified immunity from claims that they had deprived the plaintiffs of freedom of religion, speech and association in violation of the Rhode Island Constitution.  The trial judge denied their motion, ruling that there needed to be more factual development of the case before he could rule for them as a matter of law.  Because appeal as of right is not available under Rhode Island court practice from a denial of a summary judgment motion, the appellants had to petition the Rhode Island Supreme Court for a writ of certiorari, arguing that they enjoyed qualified immunity and should be dropped from the case as defendants.

The Supreme Court took the position that it was unnecessary to decide on the issue of immunity if the plaintiffs had failed to state a valid constitutional claim against the defendants, and it concluded that this was indeed the case.  “Here, respondents received an order to participate in the parade because their engine company was assigned to the task; it is uncontested that such orders were common, as evidenced by Chief Rattigan’s reference to receiving ‘numerous’ requests from parade organizers for Fire Department participation and as reflected in the standard form for such requests used by the Department. After receiving this work assignment from their employer (the regularity of which has not been questioned), respondents participated in the parade merely as relatively anonymous public servants. We are unaware of any pertinent legal authority in support of the proposition that, in such specific circumstances, employees’ rights are violated if they happen to possess religious objections to the beliefs of the group with which an otherwise legitimate work assignment requires brief interaction,” wrote Justice Robinson.  The court found that the fire fighters’ participation in the parade did not present a case of compelled speech on their part; staffing a fire truck in a parade is not a political statement when it is done by assignment of superiors.  He continued, “The individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants,” so they had no constitutional claim to raise.

Given that conclusion, there was no occasion to consider whether the mayor and fire chief were entitled to immunity.

The case stands for a broader principle, not specifically articulated by the court but present nonetheless.  Public employees at work are carrying out the directions of their superiors and are not, as such, free actors.  The same principle underlies numerous rulings, from the Supreme Court on down, that public employee speech enjoys no protection when it is “official speech,” that is, speech undertaken as part of the employee’s job.  When a public employee within the scope of his or her employment speaks or engages in conduct that might be seen as expressive and thus falling within the realm of speech, it is officially the speech of the government, not the employee.  The same principle underlies the proposition, now frequently contested, that government clerks cannot rely on their personal religious views or ethical objections to refuse to issue marriage licenses to same-sex couples in jurisdictions where legal bans on same-sex marriage have been struck down.  As such, this Rhode Island Supreme Court decision may stand as an important precedent as religious exceptionalists step forward to challenge the obligation of objecting clerks to issue such licenses or, in jurisdictions where clerks routinely do so, to preside over such marriage ceremonies.

11th Circuit Vacates Child Porn Conviction Finding Jury Might Have Been Biased

Posted on: October 30th, 2014 by Art Leonard No Comments

An 11th Circuit U.S. Court of Appeals panel voted 2-1 in United States v. Bates, 2014 WL 5421846, 2014 U.S. App. LEXIS 20564 (Oct. 27, 2014), to vacate the child pornography conviction of Cameron Dean Bates, who had been convicted by a Southern District of Florida jury and sentenced to 240 months in federal prison for receiving, accessing, distributing, and possessing child pornography.  The majority of the panel concluded that the trial judge erred by denying Bates’ request that potential jurors be questioned about their attitudes concerning homosexuality, and that this was not harmless error in light of the evidence the government proposed to introduce in the case.  Dissenting Judge Robert L. Hinkle, a district court judge from a different district in Florida, contended that the error was harmless because of the overwhelming evidence against Bates, but the majority clearly thought this wasn’t the point; that a criminal defendant is entitled to a fair trial before an impartial jury.

The opinion for the court by Judge Beverly Baldwin Martin does not say how the government got wind of Bates’s activities, but investigators enlisted Bates’s internet service providers to help them trace downloads of child porn to his computer, then obtained a search warrant and did a forensic investigation that yielded not only evidence concerning child pornography but also evidence of Bates’s homosexual activities with other adults and occasional cross-dressing, which the government intended to introduce at trial (and did, over Bates’s objections) in countering Bates’s argument that somebody else was using his laptop to access child porn. Bates sought voir dire about the jurors’ attitudes towards homosexuality, but the obtuse district judge said that he could not see how that had anything to do with the case, and refused the request, just as he overruled Bates’s motions to exclude the evidence going to his homosexual activities.

“In this case,” wrote Martin, “the District Court optimistically declared that our society is beyond prejudice on the basis of a person’s sexual orientation. While we admire the District Court’s optimism, it remains the case that ‘there will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive’ [citing numerous cases].  We have no doubt that evidence of Mr. Bates’s sexual activity and gender non-conforming conduct had the potential to unfairly prejudice jurors.”

As to the District Court’s puzzlement about how this had anything to do with the case, the court of appeals majority found that Bates’s sexual activities “became ‘inextricably bound up’ with the issues to be resolved at trial. This fact should have been obvious to the District Court given its ruling before voir dire that it did not intend to exclude the sexually explicit images of Mr. Bates found on his computer.  And if it wasn’t obvious to the District Court before jury selection began, it should have become obvious when Mr. Bates requested the Court to explore the potential prejudice before striking jurors.  When the District Court expressed confusion about what homosexuality ‘has to do with this case,’ the government explained that it intended to introduce ‘pictures and items from the defendant’s computer to show that he was engaged in homosexual activity. . . which goes to show that he wouldn’t be sharing his computer with other people.”

The court held that the government failed in its burden to prove harmless error. “Because the District Court refused to ask any questions at all about prejudice on the basis of sexual preferences, we have no way to discern whether the jury was biased against Mr. Bates for that reason,” wrote Judge Martin.  “Because the jurors had no reason to know that issues about same-sex sexual practices would be part of the evidence at trial, they had no reason to offer up prejudices they might harbor on that basis when the District Court posed its general questions.”  The court also expressed lack of confidence that the trial judge’s limiting instructions to the jurors cautioning them about the use of the evidence would have adequately cured the “constitutional deficiencies in this voir dire process.”

“In light of the quantity and the explicit content of the evidence about Mr. Bates’s sexuality paraded before the jury,” wrote Martin, “the risk that latent, undiscovered prejudices may have inflamed is great. Indeed, it seems that the government expected the evidence to have exactly that effect at the time it was introduced.  After asking one of Mr. Bates’s family members whether she knew about his same-sex sexual activities and gender non-conforming behavior, the government followed up with this telling question: ‘And would that have affected your opinion of him?’  We can think of no reason to ask this question but to suggest that, perhaps, it should.”

“If Mr. Bates is to be convicted,” Martin continued, “we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high.  His convictions must therefore be vacated, and we remand this case for further proceedings.”  The court also commented that the trial court may have given Bates inadequate time prior to his trial to prepare his defense, as the government added new charges shortly before trial, and concluded, “we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.”

Judge Hinkle’s harmless error dissent ended on a defensive note. “One is left asking why, if the evidence of guilt was as clear as I believe it was, the government asked improper, prejudicial questions?  A possible inference is that the government thought a conviction was not certain.  A possible inference is that the government thought at least some jurors were biased and that appealing to that bias would help bring about a conviction.  Why else would the government do it?  I am left in the uncomfortable position of concluding the government was wrong – that it didn’t need the prejudicial impact it improperly pursued.  It is with no enthusiasm that I dissent.”

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

Posted on: October 17th, 2014 by Art Leonard No Comments

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.

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

Posted on: August 25th, 2014 by Art Leonard No Comments

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

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

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

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

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

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

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

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

New Jersey Appellate Division Revives Step-Parent Custody/Visitation Claim by Former Domestic Partner of Birth Mother

Posted on: August 13th, 2014 by Art Leonard No Comments

In a complicated three-way parental rights case, the New Jersey Appellate Division ruled on August 6 that the Mercer County Superior Court should not have dismissed without a plenary hearing a custody/visitation action by a child’s former lesbian step-parent. K.A.F. v. D.L.M., 2014 N.J. Super. LEXIS 112, 2014 WL 3843057. Key to the court’s ruling was that the consent of only one legal parent is necessary to the determination whether a third party has formed a relationship with a child sufficient to meet the requirements of the “exceptional circumstances” doctrine as a psychological parent.

The facts are complicated. K.A.F. and F.D. became a couple in 1998 and began living together in 1999. In 2000 they bought a house together and decided to have a child. K.A.F. became pregnant through donor insemination and their child, called “Arthur” by the court (a pseudonym), was born in December 2002. Although the relationship between K.A.F. and F.D. became strained, leading them to live separately, they continued to co-parent Arthur, whom F.D. formally adopted in a second-parent adoption in 2005. In November 2005, a new birth certificate was issued showing K.A.F. and F.D. as legal parents of Arthur. However, as no reconciliation had taken place between K.A.F. and F.D., K.A.F. subsequently became involved with D.M., a friend of both women, and they moved in together in the Fall of 2004. With K.A.F.’s apparent consent, D.M. began to assume a parental role toward Arthur. In May 2006, K.A.F. and D.M. registered as New Jersey domestic partners. There is some difference of opinion between K.A.F. and D.M. about the extent to which D.M. participated in Arthur’s care when he resided in their home. F.D. concedes no knowledge as to that, but contends that at all times she had “adamantly and wholeheartedly opposed [D.M.’s] attempt to parent” Arthur. The relationship of K.A.F. and D.M. eventually grew strained, and D.M. moved out in March 2010, after having, according to her, played a parental role with Arthur for six years. She continued to have regular visitation with him until June 2011, but relations with K.A.F. had so deteriorated that by November 2011, K.A.F. stopped D.M.’s contact with Arthur, and in January 2012 she wrote D.M. that she would no longer be allowed visitation with Arthur. The domestic partnership between K.A.F. and D.M. was legally dissolved in October 2011.

In February 2012, D.M. filed this lawsuit, seeking “joint custody” of Arthur and a “reasonable visitation schedule.” Remember that the legal parents of Arthur are K.A.F. and F.D., Arthur’s adoptive co-parent. K.A.F. and F.D. opposed D.M.’s lawsuit, arguing that F.D. had never given consent for D.M. to assume a parental relationship with Arthur. F.D. had remained an involved parent with regular visitation throughout this period. K.A.F. and F.D. argued that the “exceptional circumstance” of a “psychological parent” status requires the consent of both legal parents, and F.D. never consented to D.M.’s role, so her lawsuit must be dismissed. The Family Part judge agreed, and dismissed the case, refusing to hold a plenary hearing on disputed facts.
Reversing, the Appellate Division found that the trial court had misconstrued the state’s precedents.



Although K.A.F. and F.D., as the legal parents, have a fundamental right to parental autonomy that would normally exclude an assertion of parental rights by a third party, New Jersey courts hold that the “presumption in favor of the parent will be overcome by a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances.’” One such “exceptional circumstance” that has been identified by the courts is where a third party has “stepped in to assume the role of the legal parent” and has become a “psychological parent” of the child. This requires the consent of the child’s legal parent. The trial court had ruled that if the child had two fit and involved legal parents, consent by both of them would be required for a third party to achieve this status. In this case there was no allegation that either of the legal parents was unfit or uninvolved in the child’s life.

“From the perspective of simple logic,” wrote Judge John C. Kennedy for the court, “it would be difficult to ignore the ‘psychological harm’ a child might suffer because he is deprived of the care of a psychological parent simply because only one of his ‘legal parents’ consented to the relationship.” The court’s perspective is focused on the child’s best interest, and the doctrine of psychological parent exists to protect the child’s best interest. “The clear policy” of the court’s prior rulings on psychological parents,” continued Kennedy, “is that ‘exceptional circumstances’ may require recognition of custodial or visitation rights of a third party with respect to a child where the third party has performed parental duties at the home of the child, with the consent of a legal parent, however expressed, for such a length of time that a parent-child bond has developed, and terminating that bond may cause serious psychological harm to the child. It is fatuous to suggest that this fundamental policy may be subverted, and that a court may not even examine the issue at a plenary hearing, where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented. If we were to accept the arguments of K.A.F. and F.D., a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party. That result is not supported by the Court’s carefully crafted policy governing such cases.” The court dismissed the Family Part judge’s concern that allowing this proceeding to continue might result in the child having more than two legal parents.

Kennedy asserted that “the transcendent importance of preventing harm to a child weighs more heavily in the balance than the fundamental custody rights of a non-forsaking parent. It also supports the proposition that where at least one ‘legal parent’ of a child has, by his or her actions, effectively consented to the creation of a psychological parent relationship between that child and a third-party, the third party has standing to pursue the claim.” The court did note that F.D.’s alleged lack of consent may be a factor considered by the Family Part judge as part of the overall weighing of factors in determining the best interest of Arthur in this situation.

Thus, it followed that the trial judge erred in dismissing the case without holding a hearing to resolve the factual disputes between K.A.F., D.M. and F.D. The court found that it was “clear that D.M. averred sufficient facts that, if credited at a plenary hearing, would establish her standing to pursue her complaint.” D.M. alleged that “she and K.A.F. lived in a familial setting with Arthur for over six years, from the time he was eighteen months old, and that she performed many normal parental duties during that time with the full consent and encouragement of K.A.F.” She also claimed that F.D. had “assented to” her assumption of parental duties for Arthur, and ‘knew that she was parenting Arthur’ and ‘participating in all “major decisions” pertaining to his welfare.” That these averments were disputed by K.A.F. and F.D. meant that there was a dispute of material facts that could not be resolved without a hearing. Since F.D.’s consent to the formation of a parental bond with D.M. was not necessary, in the view of the court, if K.A.F. had consented, F.D.’s disavowal of such consent did not deprive D.M. of standing to bring the case. Furthermore, the court found that consent can be “inferred” from action, and need not be expressed verbally.

“Moreover,” wrote Kennedy, “the focus of the court’s inquiry must always be the intent and actions of a legal parent during the formation of the disputed relationship and not the later expressions of a legal parent about his or her desire to sever the relationship. ‘The reason is that the ending of the relationship between the legal parent and the third party does not end the bond that the legal parent fostered and that actually developed between the child and the psychological parent.’” The court thus remanded for a plenary hearing, charging the trial court to determine whether D.M. had become a psychological parent of Arthur, and whether it was in the best interest of Arthur to award D.M. a sharing of custody, visitation, “or other relief.”

Abbey True Harris argued the appeal for D.M., Robin T. Wernik argued for respondents K.A.F. and F.D., and the National Center for Lesbian Rights filed an amicus brief authored by Lawrence S. Lustberg of Gibbons P.C.

6th Circuit Holds Marathon 3-Hour Argument in Marriage Equality Cases

Posted on: August 6th, 2014 by Art Leonard No Comments

On August 6 a three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit held a marathon three-hour argument for appeals in six marriage equality decisions coming from all four states in the circuit: Ohio, Michigan, Kentucky and Tennessee.  Eight attorneys — four representing the  states and four representing groups of same-sex couple plaintiffs — struggled with defining fundamental rights, parsing state justifications for excluding same-sex couples from marriage, figuring out whether the court was bound to rule for the states under the Supreme Court’s 1972 Baker v. Nelson decision, and considering the practical consequences of a ruling for the plaintiffs.  The arguments were held in the shadow of recent decisions by two other circuit courts of appeals in favor of plaintiffs, as well as more than twenty consecutive rulings by federal and state trial judges all favoring marriage equality.

Despite the recent litigation history, the attorneys for the states seemed confident and undeterred, pushing forward with their arguments on two fronts.  All four states argued that the central question in the case was whether it was the state government and people or the federal court that should make the policy decision about same-sex marriage, and they all ended up relying heavily on the part of Justice Anthony Kennedy’s opinion for the Supreme Court in U.S. v. Windsor that focused on the traditional role of states in defining marriage.  Kennedy emphasized that Congress had departed from that history by passing a rule that certain marriages would not be recognized by the federal government, even though a state had decided to authorize them.  This unusual departure from past practice of generally recognizing state-authorized marriages led the Court to question the reasons behind the Defense of Marriage Act, and to conclude that it was motivated by animus against gay people.

The states argued that, by contrast, there was no animus involved in their electorates having passed constitutional amendments forbidding same-sex marriages, because all those amendments did was to preserve the status quo.  Gay people in those states had no fewer rights after the amendments were passed than they had before the amendments were passed.

By contrast, the attorneys arguing for same-sex couples generally avoided arguing that the marriage exclusion was motivated by animus, instead focusing on the lack of rational justification for them, interspersed with arguments about the harms caused to same-sex couples by the refusal of the state to let them marry or recognize their out-of-state marriages, and the logical disconnect between the procreation theories advanced by the states and the exclusionary effects of their marriage bans.

Of the three judges on the panel, two seemed very actively engaged in trading questions and comments with the lawyers, while one seemed more like an observer.  Judge Deborah Cook, appointed to the court by George W. Bush and known as a “doctrinaire conservative” according to at least one press account, asked few questions and made few comments, and her few words did not suggest a strong disposition about the outcome of the case. To the extent she was skeptical, her skepticism seemed directed at lawyers from both sides.  Unlike the judges who went on to dissent in the 4th and 10th Circuit cases, however, she did not take an active role in rebutting the arguments of plaintiffs’ lawyers, confining herself to a handful of questions that did not reveal any particular predisposition.  It was very hard to read her reactions from the audio recording of the arguments.

Judge Martha Craig Daughtrey, appointed to the court by Bill Clinton, appeared strongly predisposed to affirm the lower court marriage equality rulings that were being appealed by the states.  She asked many questions, and seemed most skeptical of the states’ procreation arguments, asking again and again how excluding same-sex couples from marriage would advance the states’ asserted interest in channeling procreation into marriage.  Responding to the argument that gay people should resort to the political process on a state-by-state basis, she raised the counterexample of the campaign for women’s right to vote, which stretched over 78 years and eventually had to go national with a quest for a federal constitutional amendment because there was so little success in winning the vote from state legislatures.

The activist on the panel, in terms of controlling the flow of the argument and asking frequent questions, was Jeffrey Sutton, also appointed to the court by George W. Bush and also generally considered to be very conservative.  According to press accounts, he is a strong supporter of states’ rights and of reigning in the federal government.  But he surprised many observers when he wrote an opinion for the 6th Circuit rejecting a constitutional challenge to the Affordable Care Act (a/k/a Obamacare), and press speculation about the marriage equality cases has suggested that he is the swing voter here.

Certainly, listening to his questions and comments, one could conclude that he was sympathetic to the case being made for the same-sex couples.  At the same time, the theme to which he recurred again and again was the idea of “pacing.”  That is, he felt that this was an issue as to which different states might proceed through their democratic processes at different speeds, and in the federal system where the defining of marriage has traditionally been a state function, that could be permissible.  He posed to several of the plaintiffs’ lawyers the question whether it was really preferable for the gay community to achieve marriage through the courts as opposed to the democratic process, pointing to the successful marriage equality referenda in several states in 2012 and the enactment of marriage equality laws  through the legislatures in a majority of the states that now have marriage equality.  He referred to “winning the hearts and minds” of the public as a preferable way to achieve policy change in a democracy.  One had the sense, listening to him, that he was not opposed to the idea of same-sex marriage, but that he was sympathetic to the argument by the states that they should be allowed to move along on this issue at their own pace.

The Michigan and Kentucky cases involved both the right of same-sex couples to marry within the states and the right to have out-of-state marriages recognized, while the Ohio and Tennessee cases dealt only with recognition of out-of-state marriages.  There was some discussion about whether it would be possible to rule in favor of the recognition claims without deciding the underlying right-to-marry question, and Judge Sutton raised on his own, as none of the parties had raised, the question whether Section 2 of DOMA, which says that no state would be required to give full faith and credit to same-sex marriages performed in other states, was relevant to these cases.  And, indeed, the Windsor DOMA decision from 2013 bears more directly on the question of marriage recognition, since the Supreme Court held in that case that there was no legitimate justification for Congress to refuse to recognize marriages that states had authorized to take place.  It was possible to think, after hearing these arguments, that the court might rule for plaintiffs on the recognition claims while holding back on the right-to-marry claims, although one of the state lawyers pointed out the position in which this would put the states, creating marriage evasion problems.

Sutton posed to several lawyers the question whether there would be significant practical difficulties in implementing marriage equality rulings, but the state lawyers were unable to think of many, and the attorney for the Ohio couples pointed out that a simple definition statute substituting gender-neutral terms throughout the state code would take care of the problem.

The lawyers for the plaintiffs did an excellent job explaining why state bans on same-sex marriage were no longer constitutional in light of the Supreme Court’s decisions in Romer, Lawrence, and Windsor.  And the lawyers for the states seemed to be grasping at straws in their attempts to persuade the court that Baker v. Nelson, the 1972 statement by the Supreme Court that the issue of same-sex marriage did not involve a “substantial federal question,” was still binding on lower federal courts, including the 6th Circuit Court of Appeals.  When Baker was raised briefly during the DOMA and California Prop 8 Supreme Court arguments in 2013, Justice Ruth Bader Ginsburg quickly dismissed it as no longer relevant, but the Court did not speak about Baker in either decision.  Since Windsor, every lower court that has ruled in a marriage equality case has agreed that Baker is no longer relevant.  In light of Windsor, it is hardly credible to suggest that marriage equality does not present substantial federal constitutional issues.

Lawyers arguing for the same-sex couples were Carole Stanyar of Michigan, Alphonse Gerhardstein of Ohio, Laura Landenwich of Kentucky, and William Harbison of Tennessee.  Lawyers arguing for the states were Michigan Solicitor General Aaron Lindstrom, Ohio Solicitor General Eric Murphy, Leigh Gross Latherow of Kentucky, and Tennessee Acting Solicitor General Joe Whalen.  In this listener’s estimation, the most effective arguments were made for the plaintiffs, although none of the states’ advocates could be dismissed as ineffective.  The arguments were conducted on a high level, and at least Judges Sutton and Daughtrey seemed very engaged.  Sutton particularly complimented William Harbison from Tennessee on his argument.

At the conclusion of the last argument, Judge Sutton acknowledged that the 6th Circuit was not the final stop for these cases, and he commented that they hoped to get an opinion out quickly.  He clearly recognized that the sooner the court issues its decision, the more likely it will be included among the cases jockeying for position at the Supreme Court as the one selected to make the ultimate determination.  There was at least an intimation that the court expects to produce one decision covering all six cases up for review rather than separate decisions for each state, as Sutton responded to an argument by Ohio’s Eric Murphy about standing issues in one of the cases with the comment that it was not all that significant since it was clear that there were no standing problems in the other marriage recognition cases before the court, so a decision would emanate that would cover the entire circuit.

Key West (Florida) Trial Judge Rules for Marriage Equality

Posted on: July 17th, 2014 by Art Leonard 1 Comment

A state trial judge in Key West, Florida, has ruled that the state’s ban on same-sex marriage violates the 14th Amendment of the U.S. Constitution. Judge Luis M. Garcia ruled on July 17 that Monroe County Clerk Amy Heavilin must issue a marriage license to Aaron R. Huntsman and William Lee Jones, who have been a couple for eleven years, on July 22. Garcia wrote that he was giving the clerk until July 22 “in consideration of the Clerk of Court’s anticipated rise in activity, and preparation thereof.”

Attorney General Pamela Jo Bondi, evidently anticipating the ruling, immediately filed a notice that she was appealing the ruling to the Florida 3rd District Court of Appeal. Although the lawsuit was originally filed against Heavilin, the state intervened as a defendant and will be handling the appeal.

The plaintiffs and the defendants agreed that there were no factual issues that required a trial, authorizing the court to issue a ruling on the plaintiff’s motion for summary judgment. The court had allowed two organizations to file legal memorandums defending Florida’s constitutional and statutory same-sex marriage ban, and they had argued that a trial was needed, but Judge Garcia ruled that only the defendants had standing to make that argument.

The state’s first argument was that the plaintiffs’ constitutional claim was blocked by the Supreme Court’s 1972 ruling in Baker v. Nelson, a Minnesota marriage equality case, in which the Court dismissed the appeal, stating that it did not present a “substantial federal question.” Garcia pointed out that after Romer v. Evans, Lawrence v. Texas and United States v. Windsor, he concluded that Baker “is no longer binding and the issue of same-sex marriage has now become a Federal question.” He cited the 10th Circuit’s recent ruling in the Utah marriage case, as well as trial court rulings from Pennsylvania, Oregon, Oklahoma, Michigan and Virginia in support of this conclusion.

Moving to the plaintiffs’ Due Process argument, he found that Supreme Court rulings treat the right to marry as an individual right, and, refuting the state’s argument that plaintiffs were seeking the establishment of a “new” constitutional right, wrote, “The right these plaintiffs seek is not a new right, but is a right that these individuals have always been guaranteed by the United States Constitution. Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.”
Garcia concluded that the fundamental right to marry “encompasses the right to marry a person of one’s own sex,” and thus the Florida marriage amendment and statute are unconstitutional.

Turning to the plaintiffs’ Equal Protection argument, Judge Garcia noted that in U.S. v. Windsor the Supreme Court had ruled that unconstitutional animus was behind the Defense of Marriage Act, and found that the same analysis would lead to the same result regarding Florida’s marriage ban. In Windsor, Justice Anthony Kennedy wrote that “the purpose and effect of the law was to impose a disadvantage, a separate status, and so a stigma upon all who enter into a same sex marriage.” “Similarly,” wrote Judge Garcia, “the purpose and practical effect of [the Florida Marriage Protection Act] is that it creates a separate status for same-sex couples and imposes a disadvantage and stigma by not being recognized under Florida law.”

He also rejected the argument that there is “no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment,” finding that “there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae.” Here the opponents of same-sex marriage hurt their own case by their outrageous assertions. “The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long-term relationships or of raising children,” and thus it was rational, they argued, for Florida’s voters to “minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” Garcia concluded that “animus has been established.”

He also concluded that the Equal Protection claim should be decided using a “heightened rational basis test,” and that the marriage ban could not survive such a test. Indeed, he wrote, “Only the Amici Curiae has attempted to put forward a rational basis for the unequal treatment of a segment of our society,” and he found their arguments unavailing. Their first basis was to argue that the law “memorialized millennia of history and tradition,” but, as Justice Scalia had pointed out in his dissent in Lawrence v. Texas, “Preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.” The other argument was the ban somehow “encourages procreation” among heterosexuals, but Garcia found that there was nothing in the marriage ban “that encourages heterosexual couples to procreate.” The third argument was that the law “encourages a better environment for the rearing of children,” but, Garcia pointed out, quoting from an Ohio marriage recognition ruling from last year, “The only effect the marriage recognition bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married.”

Unfortunately, however, the only plaintiffs in this case are two men who wish to be married, and Garcia found that they did not have standing to challenge the Florida statute that bans recognizing out-of-state same-sex marriages, so he limited his ruling to the right to marry. Of course there are several other marriage equality cases pending in Florida courts, both state and federal, and plenty of them have married couples seeking recognition, so that point will eventually be covered in another case.

“The court is aware that the majority of voters oppose same-sex marriage,” concluded Judge Garcia, “but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority. . . All laws passed whether by the legislature or by popular support must pass the scrutiny of the United States Constitution. To do otherwise diminishes the Constitution to just a historical piece of paper.”

The plaintiffs are represented by Florida attorneys Elena Vigil-Farinas, Bernadette Restivo and Thomas L. Hampton.

New York County Surrogate Applies Archaic Family Priority Rules in Dispute over Estate of Gay Man

Posted on: July 11th, 2014 by Art Leonard No Comments

New York County Surrogate Nora Anderson issued a decision on February 18, 2014, in the pending will contest In the Matter of the Accounting of Martin Ephraim, as Fiduciary of the Deceased Executor, for the Estate of Ronald D. Myers, No. 2006/4109 (N.Y. Surrogate’s Court, N.Y. County), which surprisingly relied on old New York cases to prefer the mother of the decedent over his surviving same-sex partner in distributing disputed assets of the estate, despite language in the decedent’s home-made will suggesting otherwise.  Ephraim’s attorney, Karen Winner, has filed a motion for reargument, contending that the court’s decision overlooks significant precedents from the past 30 years establishing the “family” status of cohabiting same-sex partners.  The opinion supports the view that wills made without the assistance of somebody knowledgeable in the law of estates are a risky business.

The problems in this case stem from a home-made will by Ronald D. Myers, made in 1981 without the assistance of a lawyer.  At that time, Myers and his partner, Dr. Robert Ephraim, had been together for eleven years.  In the will, Myers designated his mother and Dr. Ephraim as executors, but when Myers died in 2006, his mother renounced her appointment, so Dr. Ephraim served as the sole executor.

In the will, Myers stated: “I give, devise and bequeath all monies will be left to my Mother, Roberta F. Long.  And that all Stocks of I.B.M. will be left to Dr. Robert Ephraim.  And also all personel [sic] property will be left to Dr. Robert Ephraim.”  The will also provides that if Myers and Ephraim both died at the same time, “all personel property” would be left to his brother, and if his mother predeceased him, all property would be left to Dr. Ephraim.  He also wrote, “If the death of my Mother occurs first, then in that case all property will be left to Dr. Robert Ephraim., this would include all monies., and all personel effects totally.”

As it happened, Myers’ mother survived him, and Ephraim, acting as executor, paid over to her all the money in the estate, about $40,000.  At his death, Myers owned a substantial portfolio of stocks, including but not limited to I.B.M., which Ephraim transferred to himself, treating the non-I.B.M. stock as “personal property.”  Myers’ mother then died intestate, and her administrator filed an objection to how Ephraim had distributed the stock, arguing that Ephraim was entitled under the will to inherit only the I.B.M. stock and Myers’ “personal effects.”  Ephraim then died, and his brother is now serving as fiduciary in his stead.  So the lawsuit is now a battle between the heirs of Mrs. Long and the heirs of Dr. Ephraim over the non-I.B.M. stock, which constitutes the bulk of the value of the estate.

Counsel for Ephraim argued that the language of the will is clear that the only inheritance for Mrs. Long was the money in the estate.  (Not mentioned in the court’s opinion but stressed in a motion for reargument is that Myers had also purchased annuities for his mother valued at $165,000, which passed to her outside the estate.)  Counsel also argued that at the time Myers made the will, the only stock he owned was I.B.M. stock, so that no inference should be drawn that he did not intend Ephraim to inherit other stock that Myers might own at the time of his death.  Counsel for the Long heirs argued that by specifying the I.B.M. stock as Ephraim’s inheritance, Myers intended him to have only that stock and that other stock should be treated as “money” rather than “personal property” and distributed to the Long estate, claiming that any other interpretation of the language of the will would be “nonsensical.”

Surrogate Anderson wrote that construction of the will “must take into account the peculiar facts and circumstances attending the will’s execution, including the relation of the parties where possible, the scheme disclosed, the language chosen by the decedent, and the intention gleaned from the language and the general situation.  If a dominant purpose or plan for distribution is discerned, ‘the individual parts of the will must be read in relation to that purpose and given effect accordingly.’”  Citing very old cases, she continued, “In cases in which discovery of a decedent’s intent is more difficult, courts have employed a presumption in favor of the testator’s relatives as against unrelated persons.”  She also said that reference to “money” in a will depends on context and sometimes may refer to “securities” and “stocks,” and that sometimes the term “personal property” may refer to “personal effects.”  In Myer’s home-made will, these latter terms are both used.

Throughout her opinion, Anderson referred to Ephraim as Myer’s “friend,” although she clearly indicated understanding that the men had lived together more than 30 years.  She apparently did not consider them to be “relatives” for purposes of any presumption about testamentary intent.  Without being totally explicit about it, she seemingly applied the “presumption” to favor the mother over the “friend.”  Furthermore, she suggested that in 1981 Myers expected his mother “to live a good many years more and, therefore, to want to plan for her accordingly.”  She found a lack of clear evidence as to whether Myers only owned I.B.M. stock when he made the will in 1981, focused on the “limiting language” in the bequest to I.B.M. stock, characterized the bequest of “all monies” to the mother as “without qualification or limitation,” and concluded, “Such lack of limitation combined with decedent’s use of the plural form ‘monies’ favors a broad reading of the mother’s bequest.”  She also applied an old legal maxim that by specifying I.B.M. stock in the bequest, Myers intended to exclude other stock.  Judge Anderson reasoned that by separately mentioning stock, Myers considered it separate from other “personal property,” and that the proviso about “all personal property” going to the brother if Myers and Ephraim died simultaneously would, if interpreted as Ephraim contended, mean leaving everything but Myers’ cash accumulation to his brother, who was otherwise unmentioned in the will.  (Also unmentioned in the will were Myers’ father, who was living when the will was made, and any other relatives.)

“Based on a sympathetic reading of the will and the facts and circumstances of the will’s framing,” the judge concluded, “the court construes the bequest to decedent’s mother of ‘all monies’ to encompass decedent’s non-IBM securities.”  The court found that the objecting party had met her burden to establish as a matter of law that Ephraim erred in distributing the non-I.B.M. stock to himself, and she granted summary judgment to the mother’s estate.

As mentioned above, counsel for Ephraim has filed a motion seeking reargument, contending that the court had improperly relied on a testimonial presumption that failed to recognize the family relationship between Myers and Ephraim and had adopted an interpretation of the will that is contrary to what one would expect under the circumstances of this case, with a surviving long-term partner and a mother who was provided substantial annuity contracts in addition to whatever money was in the estate at Myers’ death.  To the extent that the decision relies on a presumption that predates modern LGBT family law developments in New York, it would seem ripe for reconsideration (or possible reversal by the Appellate Division).

This case certainly illustrates the risk of home-made wills that leave room for interpretations that might contradict the intent of the testator.  As Myers accumulated more stock beyond whatever holdings of I.B.M. he had in 1981, it would have been prudent to revise his will to make clear how the stock should be distributed upon his death, rather than leaving it to a court to resolve the almost-inevitable will contest that might arise if large sums are involved.  But a lay person might not be aware of legal canons of construction and the possibility that mention of one company’s stock might be interpreted by a court to mean that he didn’t intend to leave other stock he might own at his death to his surviving partner.

The State of Play Now on Marriage Equality

Posted on: June 8th, 2014 by Art Leonard 4 Comments

Yesterday at Cornell University I participated on a Reunion Panel co-sponsored by the CU Gay & Lesbian Alumni Association (CUGALA) and the Law School, titled “One Year Later: U.S. Law and Politics in the Post-DOMA World.” My assigned task on the panel was to discuss how the response to U.S. v. Windsor has played out over the ensuing 11 months. My prepared text is in two parts: a chronology of events, and a discussion of legal doctrine with predictions for the future. Due to time constraints, I was only able to cover the chronology, and that with some rushing. I’ve decided to post the full text, which I subjected to some post-talk editing, here:

After Windsor: The Ongoing Campaign for Marriage Equality in the United States
Arthur S. Leonard, prepared for delivery at Cornell CUGALA Reunion, June 7, 2014.

First, a chronology of some important events since Windsor, which shows the extraordinary progress we’ve had in just under a year:

U.S. v. Windsor and Hollingsworth v. Perry decisions were announced on June 26, 2013.

June 28 – 9th Circuit lifted its stay in the Prop 8 case and same-sex couples resumed marrying in California.

July 1 – First decision to cite Windsor was issued: a marriage equality case pending in U.S. District Court in Michigan, court refusing to dismiss the case.

Within weeks of Windsor, the Obama administration announced that the federal government would generally use the “place of celebration” rule to determine whether to recognize same-sex marriages, which meant they would be recognized nationwide for most purposes, regardless of local law. (Major exception: Social Security)

July 17 – Board of Immigration Appeals held “place of celebration” rule would be used in immigration cases, extending recognition to the marriage of a same-sex binational couple.

July-August – County clerks and trial judges in New Mexico staged a rebellion, as marriage equality slowly spread across the state based on local decisions, eventually reaching 18 counties. N.M. clerks association petitioned the state Supreme Court to address the issue, which it agreed to do.

July 22 – US District Court in Ohio, citing Windsor, issued a restraining order requiring Ohio to recognize a same-sex marriage contracted out of state as one spouse lay dying, for purposes of death certificate and surviving spouse status.

July 29 – US District Court in Pennsylvania, citing Windsor, ruled that a surviving same-sex spouse would be entitled to inherit retirement proceeds under an ERISA-regulated employee benefits plan, since “spouse” under ERISA must include same-sex spouses, and ERISA provides spousal entitlement to inherit pension/survivor benefits

September 3 – Defense Department announced that state National Guard units must provide benefits to same-sex spouses of their members – initial resistance by some individual states eventually collapsed by December

September 27 – New Jersey Superior Court granted judgment to plaintiffs in marriage equality case; in light of federal recognition under Windsor, state had no rational basis to deny marriage once it had legislated for civil unions

September 27 – Illinois Circuit court denied county clerk’s motion to dismiss marriage equality case

October 16 – Oregon Attorney General announced that in light of Windsor the state would recognize same-sex marriages from other jurisdictions. [Logic: Windsor is a marriage-recognition case, holding that federal government had no legitimate reason not to treat legally-valid same-sex and different-sex marriages the same; similarly, Oregon would have no reason for differential treatment]

October 18 – New Jersey Supreme Court unanimously refused to stay marriage equality decision. Governor Christie dropped the state’s appeal, allowing the decision to go into effect on October 21

November 5 – Illinois legislature approved marriage equality law, to go into effect June 1, 2014. Combination of Windsor and Superior Court’s refusal to dismiss pending marriage equality cases undoubtedly helped to produce the necessary majority.

November 12 – Hawaii legislature approved marriage equality law, to go into effect December 2. Special session called by Governor Abercrombie after he concluded that Windsor meant Hawaii would lose in 9th Circuit review of marriage equality case; Abercrombie called special session after legislative leaders assured him they could obtain majority support for his proposed marriage equality bill.

November 25 – Federal district court orders Cook County Clerk to issue marriage license to same-sex couple due to medical emergency, eventually leading to partial breakdown of delay to implementation of new marriage equality law as another federal court on December 10 requires clerk to issue licenses to any couple with a medical emergency and on February 21 federal court orders Cook County Clerk to issue licenses to any qualified same-sex couples regardless of medical emergencies.

December 19 – New Mexico Supreme Court unanimously rules for marriage equality, effective immediately.

December 20 – Federal district court in Utah rules that same-sex marriage ban is unconstitutional and refuses to stay ruling, so same-sex couples start marrying while state pursued quest for a stay from appellate courts. 1243 same-sex marriages performed.

December 23 – Federal district court in Ohio issues permanent injunction that required the state to recognize out-of-state same-sex marriages for purposes of death certificates

January 6 – U.S. Supreme Court stays Utah ruling without explanation, and Governor Herbert declares that marriages already contracted are “on hold” and not recognized by the state

January 14 – Federal district court in Oklahoma rules ban on same-sex marriage is unconstitutional, but stays ruling pending appeal in tight of Supreme Court’s Utah stay

January 21 – U.S. 9th Circuit Court of Appeals rules in juror selection case that sexual orientation discrimination claims are subject to “heightened scrutiny” after Windsor

January 29 – Federal district court in West Virginia denies motion to dismiss marriage equality case

February 10 – Attorney General Holder announces that Justice Department will recognize same-sex marriages under place of celebration rule for all purposes & Nevada governor and attorney general announce that in light of 9th ircuit’s “heightened scrutiny” ruling they will not provide a defense to Nevada’s same-sex marriage ban in pending 9th Circuit appeal

February 12 – Federal district court rules Kentucky ban on recognition of same-sex marriages is unconstitutional – decision stayed pending appeal

February 13 – Federal district court rules that Virginia’s ban on same-sex marriage is unconstitutional – decision stayed pending appeal

February 20 – Oregon Attorney General announces that in light of Windsor and 9th Circuit’s heightened scrutiny ruling, state will no longer defend marriage ban in pending lawsuit

February 26 – Federal district court rules that Texas’s ban on same-sex marriage is unconstitutional – decision stayed pending appeal

March 14 – Federal district court rules that Tennessee’s ban on recognition of same-sex marriages is unconstitutional – decision stayed pending appeal

March 21 – Federal district court rules after trial that Michigan’s ban on same-sex marriage is unconstitutional and that expert witnesses presented by the state are not credible – decision stayed by 6th Circuit pending appeal, 315 marriages before stay was granted.

April 10 – Federal district court orders Indiana to recognize a same-sex marriage of one of plaintiff couples in marriage equality suit due to medical emergency.

April 10 – 10th Circuit hears oral argument in Utah case

April 14 – Federal district court in Ohio rules that state must recognize out-of-state same-sex marriages for all purposes – stayed in part pending appeal

April 17 – 10th Circuit hears oral argument in Oklahoma case

May 9 – State Circuit court in Arkansas rules that ban on same-sex marriages is unconstitutional – eventually stayed pending appeal to Arkansas Supreme Court after about 500 couples marry

May 13 – 4th Circuit hears oral argument in Virginia case

May 13 – Federal magistrate judge in Idaho rules that state’s ban on same-sex marriage is unconstitutional, eventually stayed pending appeal by the 9th Circuit

May 19 – Federal district court rules that Oregon’s ban on same-sex marriage is unconstitutional. State doesn’t appeal and same-sex couples start marrying. National Organization for Marriage petitions U.S. Supreme Court to stay the ruling pending its attempt to appeal, after being turned down by the 9th Circuit. Supreme Court denies petition early in June.

May 19 – Federal district court rules that Utah must recognize the marriages that were performed prior to the Supreme Court stay – temporary stay pending appeal, 10th Circuit extended the temporary stay while considering the state’s appeal.

May 20 – Federal district court rules that Pennsylvania’s ban on same-sex marriage is unconstitutional. State doesn’t appeal and same-sex couples start marrying.

June 1 – Illinois marriage equality law goes into effect state-wide.

June 6 – Federal district court rules that Wisconsin ban on same-sex marriage is unconstitutional. Although court did not issue an injunction, and gave parties several weeks for submissions on scope of proposed injunction, delaying ruling on state’s motion for a stay pending appeal, county clerks in Milwaukee and Madison began issuing marriage licenses and about 130 couples married the same day the decision was released while state sought an emergency stay from the trial court.

June 6 – With filing of lawsuit in North Dakota, every state that still bans same-sex marriage was facing a lawsuit either on right to marry, recognition, or both.

As of June 7 – Same-sex couples could marry in 20 states and D.C., with over 45% of the nation’s population. A majority of same-sex couples lived in states where they could marry. Lawsuits were on file challenging same-sex marriage bans or refusals of recognition in every state that maintained such bans.


What the Court said in Windsor: The Court did not expressly state that same-sex marriage is a fundamental right or that sexual orientation discrimination requires heightened scrutiny, or that states are required to let same-sex couples marry or to recognize same-sex marriages.

The Court did say that the right to marry is very important in terms of legal rights and social status and it appeared to put the burden on the government to articulate policy justifications for refusing to extend the same recognition to state-sanctioned same-sex marriages that it does to different-sex marriages. The Court found that this burden had not been satisfied by any of the arguments that had been presented, without expressly addressing or analyzing any of those arguments. The Court explicitly premised this analysis entirely on the 5th Amendment, primarily emphasizing due process of law (protection for individual liberty) and also noting the equal protection requirements of the 5th Amendment.

Is this “heightened scrutiny” for sexual orientation discrimination? A 9th Circuit 3-judge panel said yes in SmithKline Beecham v. Abbott Laboratories, the juror selection case. One judge of the 9th Circuit asked the court to poll its members to consider rehearing by a larger panel of judges, but the court had not announced the result of that poll as of June 7, although it appears likely that this request was denied, since the court did announce that it would hear arguments in September in appeals from the Idaho and Nevada marriage cases. Other circuits are about to weigh in as a result of marriage equality arguments held in the 4th and 10th Circuits, with arguments yet to be scheduled on some other appeals in other courts.

Long-term effect of Windsor:

What is the long-term doctrinal effect of U.S. v. Windsor? Particularly:

(1) Does it dictate any particular result in lawsuits under the 14th Amendment against states that ban same-sex marriage?

(2) Does it mean that in cases where government policies are challenged as discriminating based on sexual orientation and/or gender identity, courts should use heightened scrutiny to decide the result? Heightened scrutiny presumes that the challenged law is unconstitutional and puts the burden on the government to show that it substantially advances an important state interest.

The marriage equality question: Beginning in September 2013 and continuing to date, federal district judges and state trial judges have decided that a state ban either on allowing or recognizing same-sex marriages violates the 14th Amendment.

They don’t all use the same analytical approach to get there, and most of them do not rely on “heightened scrutiny” to get there, although many judges discuss it.

1. Recognition cases, beginning in Ohio in July – Obergefell v. Wymyslo – The district court was asked for emergency relief by a same-sex couple that had flown to Maryland to marry, as one of the spouses was fatally ill. The court ordered Ohio to recognize the marriage for purposes of death certificate and rights of the surviving spouse. Significantly, the court did not mention Sec. 2 of DOMA, which purports to excuse states from any constitutional duty to afford full faith and credit to same-sex marriages contracted in other states. The court relied entirely on the 14th Amendment Equal Protection Clause, finding a constitutional requirement for states to treat same-sex and different-sex marriages the same for purposes of recognizing out-of-state marriages. On this view, Windsor was a marriage recognition case, holding that none of the policy arguments made in support of Sec. 3 of DOMA justified Congress in treating same-sex marriages differently from different-sex marriages. The Ohio court found that the same policy arguments made by the states were equally unavailing in this context. Unlike the Supreme Court in Windsor, the federal courts deciding marriage recognition cases have to greater or lesser extent actually discussed the various policy arguments and dismissed them.

2. Right to marriage cases, beginning in New Jersey and New Mexico in the state courts, then moving to the federal courts beginning in Utah. The state court rulings were grounded in state constitutional law, but were clearly influenced by the reasoning of Windsor, and the federal court ruling in Utah relied heavily on Windsor. A trend of quoting from Justice Scalia’s dissents in Windsor and Lawrence v. Texas quickly emerged. Scalia had predicted that these Supreme Court rulings would open the door to same-sex marriage claims, and even did some of the work for plaintiffs by contending that various arguments that had traditionally been made against same-sex marriage would no longer suffice.

For example: Moral disapproval was disfavored by the Supreme Court as a justification for sodomy laws or federal non-recognition of state same-sex marriages. Scalia helped things along by saying the arguments about “preserving or defending traditional marriage” were merely a polite way of invoking moral disapproval. Thus, states that argue that they are entitled to preserve the traditional understanding of marriage are not persuading the judges.

Procreation arguments were effectively dismissed by Scalia in his Lawrence dissent when he pointed out that the states do not prohibit the sterile, aged or infirm from marrying.

In Windsor, Scalia’s dissent rejected Chief Justice Roberts’ contention (in his dissent) that the majority opinion was about federalism. Roberts had argued that Windsor was about recognizing that the states have the primary authority to define marriage, and the federal government should ordinarily defer to the states on that question. But Scalia took Justice Kennedy at his word, when Kennedy said that the opinion was grounded in the 5th Amendment Due Process Clause (which incorporates Equal Protection). Scalia lifted key language from Kennedy’s opinion and edited it to show how the same analysis could be used to strike down state bans on same-sex marriage. Scalia wrote the playbook, and many lower court judges picked it up.

The doctrinal paths to marriage equality:

Substantive due process – States argue that plaintiffs are seeking a new federal right of “same-sex marriage” with no roots in constitutional text or tradition. Courts have rejected the argument, citing Justice Kennedy’s criticism of Bowers v. Hardwick, the 1986 sodomy law decision, as having improperly framed the question as a “claimed right of homosexuals to engage in sodomy.”

The cases since Windsor that have relied on Due Process have said this is about “the right to marry” as an individual right available to all in a meaningful way with a mutually agreed partner regardless of sex. Because of the signal importance of this right within our society, it could be deemed a fundamental right, which would require the government to show a compelling interest to exclude gay people, but the courts generally have felt it unnecessary to apply strict scrutiny because, taking their cue from Windsor, they find that none of the arguments that have been advanced against this application of the right are valid.

Equal Protection – Some of the courts have pointed out that any categorical discrimination with respect to a fundamental right invokes strict scrutiny, the right to marry is a fundamental right, so the same-sex marriage bans would fall because the states could not advance a compelling reason to exclude gay people from this fundamental right. Thus there would be no need for the court to address the question of how they should decide sexual orientation discrimination claims. However, the courts have almost all felt it necessary to engage in the alternative class-based discrimination analysis.

Sex discrimination – The courts have split over whether the ban on same-sex marriage is a form of sex discrimination that would invoke heightened scrutiny. This argument was adopted by the Hawaii Supreme Court in 1993 in Baehr v. Lewin, ruling under a state equal rights amendment, and it was picked up in some prominent academic quarters, most strongly in the 1990s by Sylvia Law of NYU and Andrew Koppelman of Northwestern University, in law review articles, books, and amicus briefs. Some of the recent decisions have echoed the view, but most have rejected it, finding that the bans on same-sex marriage are not intended to discriminate against men or against women as such. If a court accepts the sex discrimination theory, that leads to heightened scrutiny and easily invalidates the ban.

Sexual orientation discrimination – This is the most highly contested point. Most lower federal courts in the past have found that sexual orientation is not a suspect classification because

(1) the Supreme Court has never said it is and appeared to decide Romer v. Evans and Lawrence v. Texas using rationality review,
(2) the gay rights movement has shown the ability to get governments to respond to its concerns through legislation, and thus is not politically powerless,
(3) scientific questions remain about immutability, making sexual orientation unlike the suspect class of race or the somewhat suspect class of sex.

The minority of lower federal courts that have found sexual orientation to be a suspect classification have focused on (1) the well-documented history of anti-gay discrimination by government and society, including expressly anti-gay laws, (2) the growing scientific support for a genetic component to sexual orientation and a belief that sexual orientation is a deep-seated trait, largely impervious to intentional change and central to individual identity, (3) the general view that sexual orientation is usually irrelevant to any legitimate government interest.

In the gay rights decisions he has written for the Supreme Court, Justice Kennedy has not specifically addressed these questions. Instead, he has focused on the problem of animus. To Kennedy, if a discriminatory policy is adopted without any legitimate policy justification, the legislature most have been motivated by animus. This really boils down to finding that the legislature decide to discriminate against gay people because legislatures thought it politically advantageous for them to do so due to the unpopularity of gay people with most of the public, or because of an anti-gay bias grounded in religious beliefs and/or moral disapproval. These strike the Supreme Court majority as illegitimate bases for discriminatory legislation. The more important the deprivation imposed by the statute, the more concerned the Court becomes that it was enacted from animus instead of a legitimate policy reason.
Once the Court decided to reject history and tradition as a support for legislation that impairs the dignity of the individual, the game was over.

In the trilogy of decisions written by Kennedy, this theme recurs again and again. In Evans v. Romer in 1996, the Court struck down a measure that it found was discrimination for the sake of discrimination with no legitimate justification, a clear violation of the 14th Amendment. In Lawrence v. Texas in 2003, the Court struck down a state criminal sodomy statute that prohibited same-sex couples from engaging in the same sexual activity that was permitted for different sex couples, an obvious equality problem, but the Court premised the decision NOT on equality but on impairment of human dignity and autonomy in violation of the guarantee of liberty in the 14th Amendment. In U.S. v. Windsor in 2013, striking down the federal government’s refusal to recognize same-sex marriages that were allowed by states, the Court emphasized that the state had conferred dignity on married same-sex couples by allowing them to marry, and the federal government’s refusal to recognize such marriages impaired the dignity of the married couples, denying “equal liberty.” None of the justifications articulated in the legislative history or in the briefs filed with the Court were seen as adequate to support a law that impaired individual dignity in this way.

[In light of my analysis of the Court’s decision in Windsor, it should be clear that I think the 9th Circuit 3-judge panel in SmithKline Beecham v. Abbott Laboratories was mistaken in its conclusion that Windsor requires sexual orientation discrimination claims to be evaluated using heightened scrutiny. If the Court was using heightened scrutiny in Windsor, it was because of the intersection of due process and equal protection concerns, in which the importance of the right to marry was a crucial factor. I do think that the 9th Circuit’s prior cases rejecting heightened scrutiny for sexual orientation claims are wrong, because I agree with the federal district courts that, having analyzed the heightened scrutiny factors, concluded that sexual orientation claims are entitled to heightened scrutiny. But a 3-judge panel of the 9th Circuit was not free to reach such a conclusion in light of prior circuit cases; only an en banc panel could reject prior circuit precedent and engaged in the factor-analysis leading to a heightened scrutiny conclusion, in my opinion.]

Romer and Lawrence were 6-3 decisions, but Windsor was a 5-4 decision, and all the justices in the minority, regardless of which dissenting opinions they signed, seemed to agree that Congress had sufficient justification for refusing to recognize same-sex marriages, even when the states had done so. Thus, Windsor is a vulnerable precedent, should change come to the Court. The current Supreme Court conservative majority has shown little regard for precedent in Constitutional Law. Thus, the membership of the Court when the marriage equality question gets to it is crucial.

At present, it appears likely that the question will get to them next term. One or more of the courts of appeals will rule on marriage equality cases in the next few months. If such a ruling orders a state to allow same-sex couples to marry, it is highly likely that the Court will grant the state’s petition to review that decision. Assuming, for sake of argument, that the opinions of more than a dozen lower court judges reasonably reflect the views of court of appeals judges, that result seems likely. This would mean that a marriage equality case would most likely be argued during the Supreme Court’s 2014-15 term, with a decision coming sometime in the spring of 2015. If the membership of the Court remains what it is today, or the only change is a new Obama appointee to replace one of the current justices, then it is likely that we will have a national marriage equality precedent next year.