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9th Circuit En Banc Panel Revives Gay Mexican’s Asylum Claim

Posted on: March 12th, 2017 by Art Leonard No Comments

An eleven-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit revived an HIV-positive gay Mexican man’s claim for refugee status to remain in the United States on March 8, reversing rulings by a three-judge panel of the court, the Board of Immigration Appeals, and an Immigration Judge.  The opinion for the court in Bringas-Rodriguez v. Sessions, 2017 U.S. App. LEXIS 4077, 2017 WL 908546, was written by Judge Kim McLane Wardlaw, a Clinton appointee.  One member of the court, Judge Richard R. Clifton, filed a concurring opinion, and two members, Judges Carlos T. Bea and Diarmuid O’Scannlain, dissented in an opinion by Judge Bea.  Bea, appointed by George W. Bush, and O’Scannlain, appointed by Ronald Reagan, are among the most conservative judges on the 9th Circuit.  The reversed three-judge panel consisted of two George W. Bush appointees and a dissenting Clinton appointee, William Fletcher.

Carlos Alberto Bringas-Rodriguez, born in Tres Valles, Veracruz State, was, according to Judge Wardlaw’s summary of his testimony, which was deemed credible by the Immigration Judge, “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”  Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.”  He also suffered regular beatings from his father, who told him, “Act like a boy.  You are not a woman.”  He claims his uncle told him when he was eight that he was being abused because he was gay.  “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”

Bringas lived briefly with his mother in the U.S. when he was twelve, but he returned to Mexico because he missed his grandmother, who had been raising him since he was nine.  The abuse intensified when he returned.  “On one occasion, when Bringas refused to comply with his neighbor’s demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw.  “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.”  He fled back to the U.S. in 2004 when he was fourteen.

Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years.  Then he moved out of his mother’s home, living elsewhere in Kansas and in Colorado, holding several jobs.  In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado.  According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.”  Bringas served 90 days in jail, “during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abused.”  His conviction triggered a notice to the Department of Homeland Security, which immediately issued him a “Notice to Appear.”

The next year, at age 20, he applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  Asylum claims normally have to be filed within a year of arrival in the U.S., but he claimed he had been “unaware” at age 14 that he could apply for asylum, and only learned of this when he “spoke with an ICE officer in Colorado in September 2010” when he responded to the Notice to Appear.  In his application, he described the abuse he had suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him.  Bringas also credibly testified about his gay friends’ experiences with police in Veracruz.  Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laughed [on] their faces.’”  He also submitted State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.”  In a footnote, Judge Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”

An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as did the Board of Immigration Appeals (BIA) on his appeal.  The IJ found that his asylum claim was untimely under the one-year rule, a point that the BIA ignored, treating his asylum claim on the merits.  Next, the IJ found, and the BIA recognized, that although Bringas had suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.”  This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors whom the government is unwilling or unable to control.  Purely private abuse, as such, is not considered to be “persecution” under relevant statutes and treaties.  Having found that Bringas had not established “past persecution,” the BIA approved the IJ’s finding that there was no presumption that he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.”  The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.”  Indeed, the BIA found that the Mexican government “has taken numerous positive steps to address the rights of homosexuals.”  The IJ and BIA found no evidence that Bringas was likely to be tortured by the government if he were removed back to Mexico.

The three-judge panel of the 9th Circuit considering his appeal focused on a prior circuit ruling, Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), concerning cases where the applicant’s abusers were all private citizens, which held that in order to establish that the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to the government.  Wrote Wardlow, “the panel majority reasoned that where a victim fails to report abuse, even as a child, ‘there is a “gap in proof about how the government would have responded,”’ and that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”  The 3-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, including the government’s establish of a “specialized hate crimes prosecution unit” and the proclamation of a “national day against homophobia.”  The panel found “insufficient” Bringas’s testimony about the comments by his gay friends in the U.S. about how the police had failed to respond to their reports of abuse.  “Even if the friends’ reports were credited, the panel majority explained, those reports failed to establish that police practices in the city or state of Veracruz could be linked to police practices in Tres Valles, Bringas’s hometown.”

The panel majority, in common with the IJ in this case, also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children, and suggested that there was no evidence that the Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.  In this connection, they noted that Bringas’s testimony did not specify how old his friends were when they unsuccessfully reported their abuse to the police.

Judge William Fletcher, the dissenting member of the 3-judge panel, expressed growing discomfort about the prior precedent upon which the majority of that panel was relying, pointing to the circuit’s “ample precedent that does not require victims of private persecution, especially child victims, to contemporaneously report their abuse to government authorities in order to become eligible for asylum in the United States.”

The en banc panel majority, reversing the 3-judge panel, embraced Judge Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting the abuse to authorities, especially if they or their loved ones were threatened with retribution if they made any report, as had happened in Bringas’s case with threats to harm his grandmother.  Going further, the en banc panel overruled the prior precedent to the extent that it had been relied on as requiring reporting to the authorities in a case founded on abuse by non-governmental actors in order to establish “persecution” for purposes of asylum or withholding of removal.

While it was clear in this case that the asylum claim was filed too late, the court determined that Bringas’s claims for withholding of removal and protection under the CAT must be reconsidered by the Board.  The court found Bringas’ testimony, which had been deemed credible by the IJ and the BIA, sufficient to establish that he had been subjected to past persecution, and based on that testimony he was entitled to a presumption of further persecution.  Sending the case back to the BIA, the court said the remaining issue was whether that presumption had been rebutted by the government’s evidence of changed conditions in Mexico.

Furthermore, while this case was in progress, but after the BIA issued its opinion, Bringas learned for the first time that he was HIV-positive.  He had asked to reopen the case in order for the BIA to take this new information into account, but the BIA refused his request, observing that he had failed to show “how his status as an HIV positive homosexual changes the outcome of his case.”  The court ordered that BIA allow Bringas to supplement the record and to take account of new evidence about his HIV diagnosis.

Judge Clifton concurred on narrower grounds.  He felt, along with Judge Bea’s dissent, that the court’s opinion was insufficiently deferential to the BIA, which as a matter of administrative law is entitled to substantial deference by the courts and should not be reversed unless “any reasonable adjudicator would be compelled to conclude to the contrary based on evidence in the record.”  To Clifton, the evidence presented by Bringas about the unwillingness or inability of the government to address sexual abuse of gay children was not overwhelming, relying on “an unspecific hearsay report by Bringas of what he was told by one or two other persons about what had happened when a report was made to police in a different town.  That evidence would have been sufficient to support a conclusion that a report by a child to the police would have been futile, but it was not so powerful that no reasonable adjudicator could have found to the contrary,” he wrote.  He also noted that much of Bringas’ evidence was rather general and did not necessarily compel the conclusions reached by the majority of the court as to his persecution case.

On the other hand, Clifton found that the BIA “appeared to disregard the evidence that Bringas offered on the subject,” so it was appropriate to remand for reconsideration.  The IJ had written that there “was ‘no evidence whatsoever’ to support Bringas’s contention that a police report would have been futile, and it did not reflect any awareness of the evidence to that effect,” and the BIA’s opinion did not correct that misstatement.  While Clifton agreed the case should be sent back, he, unlike the majority, “would not dictate the answer to that past persecution question” but rather allow the BIA to reweigh the evidence.

Judge Bea’s dissent, as mentioned by Judge Clifton, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’s testimony, and accused the majority of mischaracterizing the precedent that it was overruling.  He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied.  If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legislated for same-sex marriage, supports gay pride marches, and is notably gay-friendly.

It will be interesting to see whether the government will seek Supreme Court review of this en banc ruling from the 9th Circuit.  The new Attorney General, Jeff Sessions, was substituted as Respondent for his predecessor, Loretta Lynch, upon taking office.  As this ruling may make it easier for Mexican asylum applicants to win the right to remain in the United States, the Trump Administration may seize upon it as a vehicle to tighten up on the asylum process by winning a reversal.  Certainly the Administration would have an interest in establishing deference for the BIA, given the ability of the President and Attorney General to influence the policies of that agency through appoints to the Board. In light of the timing, any review would take place after Trump’s nominee to fill the vacant seat on the Court takes the bench, re-establishing a majority of Republican appointees on the Court.

This en banc reconsideration of Bringas’s case was considered a big deal by the immigrants’ rights and civil liberties communities.  Dean Erwin Chemerinsky of the University of California (Irving) School of Law argued the appeal, with the Appellate Litigation Clinic at his school representing Bringas together with pro bono attorneys from major California law firms.  The government’s case was argued by relatively high level attorneys from the Justice Department in Washington.  Several amicus briefs were filed in support of Bringas’s appeal, including a wide variety of public interest groups, including Lambda Legal, National Center for Lesbian Rigths, the National Immigrant Justice Center, the HIV Law Project, the Transgender Law Center.  An amicus brief was submitted on behalf of Alice Farmer, the United Nations High Commissioner for Refugees, by Williams & Connolly LLP, a major national law firm that frequently appears before the Supreme Court.

9th Circuit Rejects Religious Freedom Challenge to California Law Banning Conversion Therapy for Minors

Posted on: August 24th, 2016 by Art Leonard No Comments

California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.

A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.

In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state.  As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.

In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest.  They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.”  Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.

“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs.  This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature.  Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”

Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.”  The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.”  A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents.  Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.

The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders.  If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”

The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out.  Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.”  Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”

The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”

Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris.  Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.

9th Circuit Denies On-Line Newspaper’s Anti-SLAPP Motion Against Porn Star’s Libel & False Light Lawsuit

Posted on: July 26th, 2016 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit affirmed a decision by District Judge George H. Wu to deny an anti-SLAPP motion by Associated Newspapers LTD, publishers of Daily Mail Online, which is being sued by “Danni Ashe,” a straight porn diva whose real name is Leah Manzari, over the use of her picture to illustrate an article about HIV in the porn industry.  Manzari v. Associated Newspapers LTD., 2016 U.S. App. LEXIS 13488, 2016 WL 3974178 (July 25, 2016).  Manzari, who asserts without contradiction that she is not and has never been HIV-positive, claimed that the publication would lead viewers to believe that she was infected, and sought $3 million in damages for libel and “false light” invasion of privacy.  The 9th Circuit agreed with Judge Wu that Manzari was likely to prevail on the merits of her tort claims.  Judge M. Margaret McKeown wrote the opinion for the court of appeals.

According to its legislative history, California’s anti-SLAPP statute (SLAPP stands for “strategic lawsuit against public participation”) was passed in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” It is intended to protect those who want to comment or publish on issues of public importance from nuisance suits intended to discourage their exercise of free speech.  When a defendant responds to a tort suit with an anti-SLAPP motion, the burden falls on the plaintiff to establish that “there is a probability that the plaintiff will prevail on the claim.”  In a non-SLAPP situation, a plaintiff can survive a motion to dismiss merely by alleging facts sufficient to suggest a plausible legal claim.  Thus, the anti-SLAPP device, putting a greater burden on the plaintiff, is supposed to protect free speech by nipping non-meritorious lawsuits in the bud, before the defendant incurs significant expenses in discovery and summary judgment litigation defending against a non-meritorious case.

This case arose when Daily Mail Online published a story about a “shutdown of the Los Angeles-area porn industry” in 2013 after a female performer, whose identity was not then disclosed, tested positive for HIV. The author of the article, James Nye, asked the photo desk to supply “some pictures representative of the pornographic film industry that contained no nudity” that could be used to illustrate the article.  He was provided with several “stock” photographs selected from the Corbis Images database, one of which was identified in that database as follows: “Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000.”

Judge McKeown described the article in her opinion. “The headline read ‘PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.’  After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with ‘In Bed With Danni” written in neon lights behind her.  Under her photograph was the caption: ‘Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.’”

Somebody reading further into the article would learn that the actress who tested positive was “new to the industry” and that “the performer was not immediately identified.” Other “stock” photos depicting other porn actresses also appeared in the article. Neither Danni Ashe nor Manzari was named in the text of the article.

Manzari’s attorney contacted Daily Mail Online when the article was published, demanding that the photograph be removed. Daily Mail made the change on their website, but the damage had been done, according to Manzari.  The original version of the article had been syndicated on the Internet. She claimed that a Google search returned the original version with her picture from websites around the world.  Worse, the version that showed up on a search screen would have the headline and her photograph, without any of the explanatory text as to the actress being “unknown.”  Consequently, she alleged, most of those who saw the article on line or as part of a search would conclude that “Danni Ashe” was HIV-positive.

Daily Mail argued that this was a frivolous lawsuit intended to chill their publication of a newsworthy story, and that the “stock” photograph was an appropriate illustration for the article. They pointed out that they never named Manzari (or “Ashe”) in the article or stated that the model in the picture was HIV-positive.  Furthermore, they pointed out, the article was a true news story on an item of public interest, thus entitled to strong First Amendment protection.  “There is no serious dispute that the libel and false light suit targeted speech protected by the anti-SLAPP statute,” wrote McKeown, so “the burden shifts to Manzari to show a reasonable probability of prevailing on the merits.”  Daily Mail also argued that Manzari, in the guise of Danni Ashe, should be treated as a “public figure,” which means that Daily Mail could be held liable to her only if it was shown that they had published the picture with “actual malice,” which in this case would mean with actual knowledge that it communicated a false meaning or with reckless disregard as to the truth.

Manzari is making two claims. The libel claim contends that an untrue publication that she is HIV-positive would be damaging to her personal or professional reputation, and the “false light” claim contends that the photograph provides an inaccurate depiction of her to the public in the context in which it is presented.  In any tort case, the plaintiff has to prove actual injury, although libel law traditionally presumes “actual injury” if a person is falsely depicted as having a “loathsome” disease, and sexually-transmitted diseases  such as HIV generally fall into that category, or is falsely described in a way that would be harmful to their standing in the profession.  Interestingly, the court’s opinion contains no discussion whatsoever about whether falsely implying or communicating that somebody is HIV-positive would harm their reputation or professional status.  This is silently assumed, perhaps because it struck the court that it would be obvious to anybody that saying that a porn actress is HIV-positive would adversely affect her ability to work in her chosen profession.

The court focuses instead on other factors in the legal analysis. For example, it makes a difference whether the plaintiff is a “public figure.”  People who have achieved sufficient fame or notoriety that they are recognizable to the public at large are deemed to be “public figures” whose activities are inherently newsworthy, and thus they face a high burden in trying to hold the press liable for reporting about them.  The court found that although Danni Ashe’s fame might be somewhat specialized, she nonetheless qualifies as a public figure. “Manzari is a pioneer in the online adult entertainment industry,” wrote the court.  “Her website www.Danni.com, which she designed and launched in 1995, began generating multimillion dollar revenues in the early 2000s.  During this time, ‘Danni Ashe’ was one of the most well-known and popular soft-core porn actresses in the world, as well as a highly successful entrepreneur, with one of the most visited websites on the Web.  She retired from the adult entertainment industry in 2004 and sold www.Danni.com, but the website remains active under that name.”  The court found that press references to Ashe supplied by Daily Mail Online supported its contention that the public figure rules should apply, which means that in order to deny the motion to dismiss her case, the court would have to find that she could probably win on the issue whether the false representation was made with “actual malice” to meet the constitutional standard.

Next, the court confronted Daily Mail’s argument that the article never mentioned Danni by name. Actually, that wasn’t true, as the picture itself had her first name in neon lights as background to her image.  “The bold headline and its content, juxtaposed with her photograph and yet another caption under her picture that said the industry was ‘shocked’ that a ‘performer had tested HIV positive,’ was sufficient for a reasonable reader to infer that Manzari was the performer who had tested positive for HIV,” wrote Judge McKeown, treating this as an “implied” defamation case.

Daily Mail argued that “this case is different from the classic defamation by implication case because it did not make any statement by including a stock photograph selected as a ‘good, nonobscene photograph to illustrate the article.’”  McKeown characterized this argument as “disingenuous,” saying that it “overlooks the fact that a photograph itself can convey both an implicit and an explicit message and that the headline, caption and photograph taken together are also a statement.”  The court found that when it considered the article “as a whole” and in its full context, “a reasonable reader could infer that the article is about Manzari.”

As to the “actual malice” requirement, it was clear that the Daily Mail Online had done nothing to determine whether the person in the photograph, who was clearly a porn actress, was HIV-positive. “This case rests on the ‘reckless disregard’ prong of actual malice,” wrote the court.  “Recognizing that California law requires only ‘minimal merit’ to withstand initial dismissal under the anti-SLAPP statute, we hold that Manzari has raised sufficient factual questions for a jury to conclude that the Daily Mail Online acted with reckless disregard for the defamatory implication in its article on the Los Angeles porn industry shutdown.  Manzari’s evidence is sufficient to support her claim that the Daily Mail Online placed her photograph in the article, juxtaposed with the incendiary headline and caption, knowing or acting in reckless disregard of whether its words would be interpreted by the average reader as a false statement of fact.”

Not only was it likely that readers would infer Manzari was the subject of the article, but Daily Mail’s editorial staff “actively removed key contextual information from the ‘Danni Ashe’ photograph as it was presented in the Corbis database,” replacing the database description, quoted above, with the language about the industry being “shocked” about an actress testing positive. “The publishers also failed to include any explanation or disclaimer adjacent to the ‘Danni’ photograph, which would have informed readers that she was not the subject of the article.”

Furthermore, the court gave little weight to the publisher’s denial of any intention to communicate to readers that Manzari was HIV-positive. “If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival,” said the court.  “If, for instance, a newspaper ran the headline: ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York City, or ‘Industry Shocked that Grocery Sprayed Veggies with Pesticide’ alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.  The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights.”  In a sarcastic footnote, McKeown added, “One need only look to the Daily Mail’s own evidence of Manzari’s public figure status to confirm the ubiquity of her image and her identity.  Her image can hardly be relegated to the status of a ‘stock’ photograph.”

“This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making,” concluded McKeown. “Manzari meets the ‘minimal merit’ threshold to avoid outright dismissal of her complaint,” so the district court “properly denied the Daily Mail’s motion to strike Manzari’s complaint.”

The usual consequence of denial of an anti-SLAPP motion would be for the defendant to offer a settlement to the plaintiff, since the court has already concluded that there is a reasonable probability that the plaintiff would win the case before a jury. If Daily Mail wants to pursue its motion further, it could seek reconsideration by a larger panel of the 9th Circuit or petition the Supreme Court for review, but neither of those routes seems likely to result in a reversal of the panel’s logical and unanimous decision.  Time for Daily Mail’s liability insurer to step in.

Los Angeles attorney Steven L. Weinberg represents Manzari. Katherine M. Bolger of the New York firm Levine Sullivan Koch & Schulz LLP and California local counsel Louis P. Petrich of Leopold, Petrich & Smith PC, represent Daily Mail.

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

Posted on: November 21st, 2014 by Art Leonard 1 Comment

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

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

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

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

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

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

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

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

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

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

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

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

 

Marriage Equality: The Day After and the Sequels

Posted on: October 8th, 2014 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9th Circuit Panels Rule on Idaho Stay & California Campaign Disclosure Rules

Posted on: May 21st, 2014 by Art Leonard No Comments

Three-judge panels of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued two rulings of some consequence from the perspective of LGBT rights on May 20. In one, the court delayed implementation of U.S. Magistrate Candy Dale’s ruling striking Idaho’s ban on same-sex marriages while expediting the court’s consideration of the merit’s of Idaho’s appeal of that ruling. In the other, the court rejected a challenge by Prop 8 Committees (organizations formed to support the enactment of California Proposition 8 in the 2008 elections) to California’s law requiring such committees to disclose the identity of their donors.

In Latta v. Otter, Magistrate Dale ruled on May 13 that Idaho’s refusal to allow same-sex couples to marry, or to recognize the out-of-state marriages of same-sex couples, violates the 14th Amendment. Magistrate Dale ordered that the state cease enforcing the same-sex marriage ban as of 9 a.m. on May 16, and she subsequently denied a petition by Governor Butch Otter to stay her ruling while the state appealed to the 9th Circuit. Governor Otter then applied directly to the 9th Circuit, which issued a temporary stay while it considered whether to stay the order until a merits panel could hear and decide the state’s appeal of Dale’s Order. On May 20, the 9th Circuit granted Otter’s petition, citing the Supreme Court’s action of January 6, 2014, when it granted Utah Governor Gary Herbert’s petition to stay a marriage equality ruling by U.S. District Judge Robert Shelby, which the state was appealing to the 10th Circuit.

However, implicitly acknowledging the urgency of plaintiffs’ quest for the right to marry or have their marriages recognized, the court scuttled its original usual briefing schedule for the appeal, and set tight deadlines, specifying that neither party could ask for time extensions on the deadlines. The court set a schedule under which briefing will be completed by the end of July, and specified that the case should be argued during the week of September 8. Although that sounds rather far off, it is actually a relatively speedy schedule for a federal appeals court.

Although the panel did not offer an explanation for its actions, one of its members, Judge Andrew D. Hurwitz, an Obama appointee and the junior member of the three-judge panel, issued a concurring opinion explaining why he agreed with the panel’s action. Referring to the Utah stay, he said that the Supreme Court “has virtually instructed courts of appeals to grant stays in the circumstances before us today,” but said that “if we were writing on a cleaner slate,” he would conclude that the usual factors applied by courts to deciding applications to stay trial court decisions “counsels against the stay requested by the Idaho appellants.” (The appellants in this case are Governor Otter and other state officials sued in the trial court.)

Hurwitz explained further, “It is almost certain that the Supreme Court will eventually resolve the merits of this appeal, and I do not venture to predict the Court’s ultimate conclusion. But, in light of this court’s recent decision in SmithKline Beecham v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), I find it difficult to conclude that the Idaho ban on same-sex marriage would survive interim Ninth Circuit review.” Since the first factor courts consider in deciding whether to grant a petition for a stay is whether the party requesting the stay has made a “strong showing” that it will prevail on appeal, and the SmithKline court ruled that “heightened scrutiny” applies in judicial review of laws that discriminate based on sexual orientation, “it is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail in their defense of a measure that denies the individual appellees the right to marry because of their sexual orientation.”

Hurwitz also noted that the balance of harms as between appellant and appellees definitely favors the appellees, who oppose the stay, and that he would not find that the public interest supported issuing a stay. “I cannot identify any relevant differences between the situation before us today” and the Utah case, he wrote. Even though the Supreme Court’s stay in the Utah case is not “precedential” in “the strictest sense,” he concluded, “it provides a clear message — the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.”

Hurwitz’s explanation suggests that if Pennsylvania Governor Tom Corbett were to seek a stay of U.S. District Judge John E. Jones III’s order ending the ban on same-sex marriages in Pennsylvania, he would undoubtedly get a stay from the 3rd Circuit.

But it suggests something else as to which observers are eager for some sort of intelligence: whether the 9th Circuit is going to hold an en banc reconsideration of the SmithKline decision. Anybody inclined to try to read tea leaves might note that Hurwitz refers to SmithKline as if it is settled law in the 9th Circuit, unlike Oregon U.S. District Judge Michael McShane, who decided not to rely upon it in his ruling on May 19 in Geiger v. Kitzhaber, because the SmithKline panel had not issued its mandate to the parties and the 9th Circuit had not yet announced the result of its internal poll of judges to determine whether to hold an en banc reconsideration. An announcement of en banc review would effectively cancel the panel decision as a precedent; if such review were likely to be granted, Judge Hurwitz surely would not rely on the panel decision in his prognostication about how Idaho’s appeal is likely to fare in the 9th Circuit.

The 9th Circuit’s ruling in ProtectMarriage.com-Yes on 8 v. Bowen, also announced May 20, was not unexpected. The court affirmed a ruling by Chief Judge Morrison C. England, Jr., of the Eastern District of California, which had rejected a 1st Amendment challenge to the state’s disclosure statute as it applied to a controversial ballot initiative. ProtectMarriage’s challenge specifically focused on the post-election reporting of donors during the short period immediately before the vote, arguing that post-election reports are unnecessary to serve the purpose of letting voters know who is behind a ballot question before they vote. The court pointed out that this is not the only purpose of the reporting requirements. They are also intended to “preserve the integrity of the electoral process by deterring corruption and the appearance of corruption,” and to “permit accurate record-keeping” in order to “enhance the public’s future associational rights by offering voters information about which policies those seeking their vote have previously endorsed.” The court pointed out that the Supreme Court has rejected facial challenges to contribution disclosure requirements in several cases, “holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights.”

ProtectMarriage also sought to have the court order California officials to end continuing public access to this information. The trial court had rejected that demand, citing the same considerations that support the disclosure requirement in the first place, but the 9th Circuit panel decided that the trial judge should not have ruled on this question because the passage of time had rendered it “moot.” That is, the information has been publicly available both on-line and in hard copy for more than five years, so the court could not see how it could now be treated other than as publicly-known information. The court directed the trial court to vacate the part of its opinion dealing with this issue, with one judge dissenting on the point.

Federal Magistrate Judge Declares Idaho’s Ban on Same-Sex Marriage Unconstitutional

Posted on: May 14th, 2014 by Art Leonard No Comments

They just keep on coming… Hard on the heels of last week’s ruling by a state court judge in Arkansas that the state’s ban on same-sex marriages violates both the state and federal constitutions, a U.S. Magistrate Judge in Boise has ruled in Latta v. Otter that Idaho’s ban violates the 14th Amendment Due Process and Equal Protection Clauses. Chief U.S. Magistrate Judge Candy Wagahoff Dale released her decision late on May 13, issuing an injunction against enforcement of the ban to become effective at 9 a.m. on May 16, unless it is stayed by judicial action. Anticipating this result, Governor C. L. (Butch) Otter had already filed a Contingent Motion to Stay Pending Appeal on Monday, with the expectation that Judge Dale will grant a stay pending Otter’s appeal to the 9th Circuit. News reports out of Idaho suggested that Idaho Attorney General Lawrence Wasden, as representative of the state government, would be filing his own motion. [Update: On Wednesday, May 14, Judge Dale denied the motion for a stay. The Governor and Attorney General sought an emergency stay from the 9th Circuit. A three-judge panel of the 9th Circuit granted a “temporary” stay while it considered the parties’ arguments concerning a stay pending appeal. As a result, the Magistrate’s order did not go into effect at 9 am on May 16.]

The parties had agreed to expedite the case by referring it for decision to Magistrate Judge Dale. Normally Magistrate judges deal with pretrial discovery matters and settlement conferences and issue recommendations to federal district judges, but in this case Judge Dale was authorized to issue a final decision on the merits.

Judge Dale’s decision closely resembles the long string of federal trial court decisions dating back to December in Utah, but it had one important distinguishing factor. This was the first decision by a federal trial court within the jurisdiction of the 9th Circuit Court of Appeals to rule on a marriage equality claim in light of the circuit court’s January 21 decision in SmithKline Beecham v. Abbot Laboratories. In that case, a three-judge panel decided that the Supreme Court’s U.S. v. Windsor decision, striking down Section 3 of the Defense of Marriage Act, had effectively invalidated prior 9th Circuit rulings on the question whether sexual orientation discrimination claims are subject to “heightened scrutiny.” When heightened scrutiny applies, the challenged law is presumed to be unconstitutional and the government bears the burden of proving that the law significantly advances an important government policy. Most legal commentators agree that a ban on same-sex marriage cannot survive heightened scrutiny review. The SmithKline panel found that, in light of how the Supreme Court dealt with the challenge to DOMA in Windsor, such claims should be subject to “heightened scrutiny.”

The defendants in the Idaho case — Governor Otter, Ada County Recorder Christopher Rich, who had denied marriage licenses to some of the plaintiffs, and the State itself as represented by Attorney General Wasden — argued that SmithKline was distinguishable from this case and should not apply. They argued that the SmithKline ruling limits application of heightened scrutiny to “instances of proven animus or irrational stereotyping,” but Judge Dale rejected this contention. “SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes,” she wrote, “but it does so in the context of Batson analysis [the Supreme Court’s precedent on discrimination against potential jurors] — not in the discussion about Windsor. With respect to Windsor, the court’s holding is undeniably broad: ‘Windsor’s heightened scrutiny applies to classifications based on sexual orientation.’ Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead it found Windsor to be ‘dispositive of the question of the appropriate level of scrutiny in this case,’ a case that fits into the broader category of ‘classifications based on sexual orientation.’ Just as the Ninth Circuit was ‘bound by Windsor’s controlling, higher authority’ when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws.”

Ironically, Judge Dale didn’t even have to engage with this argument to reach her result, as she had already concluded earlier in her opinion that the Idaho marriage law would be subjected either to strict scrutiny — the stiffest level of judicial review — or heightened scrutiny, because the law abridges a fundamental right: the right to marry. She firmly rejected the defendants’ argument that she was still bound to dismiss the case based on the U.S. Supreme Court’s 1972 rejection of a same-sex marriage challenge from Minnesota. Baker v. Nelson, on the ground that same-sex marriage did not present a “substantial federal question,” pointing out that all the federal courts ruling in marriage equality cases since the Windsor decision have rejected that argument as no longer tenable. Then she demolished the defendants’ argument that the plaintiffs are seeking “recognition of a new fundamental right, the right to same-sex marriage.” “This ‘new right’ argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms,” wrote Judge Dale. “Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat dad’s right to marry,'” she continued, invoking the Supreme Court’s leading marriage cases. “Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.”

As such, of course, the Supreme Court has frequently referred to the “right to marry” as a right of fundamental importance, and spoke of it in similar terms in the Windsor decision last June. Furthermore, Judge Dale noted, “and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay and lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.”

Having settled on heightened scrutiny, Dale carefully reviewed each of the “justifications” proposed by the defendants for maintaining the ban, and found them all wanting. The notion that the ban advanced the state’s interest in the welfare of children struck her as “so attenuated that it is not rational, let alone exceedingly persuasive.” Rejecting the defendants’ attempt to rely on outlier “scientific” publications arguing that children need to have parents of both sexes in order to thrive, she wrote, “The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. But the Court need not — even if it could at the summary judgment stage — resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage.” Indeed, she pointed out, denying same-sex couples the right to marry disregards “the welfare of children with same-sex parents,” she observed. “Although the State and Recorder Rich dismiss same-sex households as ‘statistically insignificant,’ no Defendant suggests that the State’s child welfare interest does not extend to the children in these households.”

Judge Dale was similarly dismissive of the ridiculous “channeling procreation” argument or “federalism” arguments, and was particularly critical of the argument that the ban was necessary to “accommodate religious freedom,” characterizing this argument as “myopic.” “No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture,” she acknowledged, “But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. To the extent that Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho.” She went on to quote the Utah marriage decision on this point: “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.”

Of course, no marriage equality decision would be complete without a quote from one of Supreme Court Justice Antonin Scalia’s dissenting opinions, in which he argued that the Supreme Court’s gay rights rulings were opening up the possibility of constitutional claims to the right to marry. Judge Dale quoted Scalia in the context of refuting the defendants’ argument that there is no evidence of animus against gay people in the Idaho ban. “Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. ‘But “preserving the traditional institution” is just a kinder way of describing the State’s moral disapproval of same-sex couples,'” she quoted Justice Scalia’s dissent in Lawrence v. Texas, the 2003 case invalidating sodomy laws.

Concluding, Judge Dale wrote that the plaintiffs “are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiff suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

Grounding her decision firmly in the 14th Amendment, Judge Dale wrote, “While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision,” and concluded: “Slow as the march toward equality may seem, it is never in vain.”

Governor Otter’s “contingent” motion pointed to the Supreme Court’s January 6 stay of the Utah marriage decision, arguing that the “Supreme Court made clear that it will decide the constitutionality of man-woman marriage and until that time no lower court decision holding against man-woman marriage should operate to allow same-sex couples to marry or have their marriages recognized contrary to the law of their particular states.” If a stay is not granted, he argued, “there is likely to be a repetition in Idaho of the chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan.” Presumably, Judge Dale will issue a ruling on this motion before her order can go into effect on Friday morning, but if she hasn’t issued a stay by Thursday afternoon, the Governor and Attorney General will undoubtedly petition the 9th Circuit for quick action.

Already pending at the 9th Circuit is an appeal by gay rights advocates of a pre-Windsor adverse ruling in the Nevada marriage equality case. That had been scheduled for argument in April, but the argument was postponed after a member of the circuit court asked to poll the entire Circuit on whether to reconsider the “heightened scrutiny” ruling in SmithKline Beecham v. Abbott Laboratories, which would obviously affect that case and subsequent marriage equality appeals. The time for briefing and polling having passed with no announcement by the court, it seems likely according to some observers that a majority of the court did not agree to reconsider that case, and the release of an order to that effect is likely awaiting the completion of a dissenting opinion by the judge who requested the poll and those who agreed with that judge. It is likely that the Nevada appeal will finally be heard over the summer, and perhaps in light of the timing will be heard by the same panel that will hear Governor Otto’s appeal of the Idaho ruling, following the pattern embraced by the 10th Circuit when it assigned the Utah and Oklahoma cases to the same three-judge panel.

Meanwhile, marriage equality suits are pending in trial courts within the 9th Circuit in Arizona, Oregon, and Alaska. In Oregon, a summary judgment argument has been held, while the court considers a motion to intervene by the National Organization for Marriage, which despite its name is an organization specifically formed to oppose marriage equality. If the court grants that motion, it would have to hold another summary judgment hearing before a decision could be rendered on the merits. NOM claims to represent several Oregon residents who could assert standing to intervene, including at least one county clerk who is not ready to have their name made public. Since the named defendants in the Oregon case agree with the plaintiffs, in the absence of an intervenor with legal standing a decision by Judge Michael McShane in favor of the plaintiffs could not be appealed to the 9th Circuit. Anticipating that possibility, Judge McShane raised the question at oral argument whether he should stay his own decision until the 9th Circuit has ruled on a marriage equality case from another state. [Update: On Wednesday, May 14, Judge McShane denied NOM’s intervention motion. That means he will move directly to deciding the motion for summary judgment.]

Four same-sex couples are plaintiffs in the case: Susan Latta and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. Some of them seek to marry, while others, already married out-of-state, seek recognition of their marriages. They are represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights, which had represented plaintiffs in the California marriage litigation that concluded with a historic marriage equality ruling by the California Supreme Court in 2008.

Circuit Judge Dings DOMA and Oregon Marriage Amendment in Grievance Ruling on Benefits

Posted on: April 26th, 2013 by Art Leonard No Comments
Judge Harry Pregerson of the U.S. Court of Appeals for the 9th Circuit, sitting as Chair of the 9th Circuit’s Standing Committee on Federal Public Defenders, ruled that Alison Clark, an assistant federal public defender in the Office of the Federal Public Defender for the District of Oregon, is entitled to received coverage for her same-sex spouse under the Federal Employees Health Care Benefits Program.  In the Matter of Alison Clark, Case No. 13-80100 (9th Circuit, April 24, 2013) (unpublished).   In the course of reaching this decision, Judge Pregerson found that Oregon’s Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in Oregon, violates the 14th Amendment, and he made a similar finding as to Section 3 of the federal Defense of Marriage Act.  Furthermore, he found that the federal government must recognize Clark’s same-sex marriage, contracted in Canada, even though she and her spouse live in a state where that marriage might not be recognized.
 

Clark married her same-sex partner, Anna Campbell, on June 23, 2012, in British Columbia, Canada.  A few weeks later, she applied for benefits under the Federal Employee Health Benefits Act, which applies to lawyers employed as federal public defenders.  The Act allows federal employees to elect family coverage, which can include their “spouse.”  The Administrative Office of the Federal Courts rejected the application, asserting that it was bound under Section 3 of DOMA to find that Campbell is not Clark’s spouse.  Furthermore, under Measure 36, Campbell and Clark are not recognized as spouses by their state of residence, either.  Clark filed a complaint under the Plan’s grievance system, arguing that the Benefit Plan’s own non-discrimination provision, which lists sexual orientation as a prohibited ground of discrimination, was violated, as well as the 5th Amendment equal protection and due process requirements.  Clark’s complaint ended up before the Committee, chaired by Judge Pregerson, and his opinion is consistent with rulings in two prior 9th Circuit cases presenting similar facts from federal court employees in California who had married in 2008 prior to the passage of Proposition 8, the main difference being that this marriage was contracted in Canada.

First Judge Pregerson found that this was an instance of sexual orientation discrimination, stating, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse.”  Thus, the Plan’s non-discrimination provision was violated.

Next, he addressed the issue of whether Oregon could refuse to recognize the marriage.  Before Measure 36 was passed, he observed, “Oregon law did not expressly limit marriage as between a man and a woman,” although the courts had construed the marriage law to be so limited.  Measure 36 amended the state constitution to provide: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”  Pregerson opined that heightened scrutiny was the appropriate standard to evaluate Clark’s claim, but that it was unnecessary to reach that issue because “Measure 26 fails under rational basis review.”  He pointed out that under the Supreme Court’s 1996 decision, Romer v. Evans, 517 U.S. 620 (1996), “a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government’s animus towards homosexuality. . .  Here, Oregon does not state any reason for preventing same-sex couples from marrying.” 

Based on the arguments that had been made by proponents of California’s similarly-worded Prop 8 in Perry v. Schwarzenegger, Pregerson found that none of the purported state interests were “rationally related to prohibiting same-sex marriages.”  He made short work of the “responsible procreation,” “stable and enduring families for raising children,” and “proceed with caution in changing a basic social institution” arguments.   “While other possible objectives for Measure 36 exist,” he wrote, “I can see no objective that is rationallyr elated to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” and such an objective would be impermissible under Romer.  Although he didn’t then go on to expressly  connect the dots, the implication was that Clark and Campbell’s marriage would be entitled to recognition in their state of residence, Oregon, as a matter of equal protection.

Having thus concluded, Pregerson did not need to address the alternative due process argument, but did so anyway.  He found that strict scrutiny should apply, because Supreme Court precedents supported the conclusion that the right to marry is a fundamental right.  However, again, he found that it wasn’t necessary to go this far, since Measure 36 flunked rational basis review, and thus, that Measure 36 “violates the due process rights of same-sex couples.”  “I next consider whether, given Clark and Campbell’s valid marriage, it is constitutionally permissible for the federal government to deny Clark’s request for spousal FEHB benefits.  I hold that it is not.”

Here, the barrier is Section 3 of DOMA.  Judge Pregerson found that “three rationales” for Section 3 listed in the House of Representatives report on DOMA to be insufficient under rational basis review.  He noted the Congressional Budget Office report, cited by the 1st Circuit in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012), to the effect that DOMA did not save the federal government money, because the net effect of repealing Section 3 would be to save money for the government, cost savings from recognizing same-sex families outweighing possible tax revenue losses.  Furthermore, he wrote, “there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government’s objective is to cut costs.”  He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the 5th Amendment.

The Obama Administration’s stance since February 2011 has been that Section 3 is unconstitutional but will be enforced until it is repealed or definitely invalidated by the courts.  The Supreme Court heard oral argument in March in United States v. Windsor, whose resolution may determine whether Section 3 is constitutional.  But Judge Pregerson is apparently not inclined to wait for that ruling.  Having held that denial of Clark’s application violates the Plan and the Constitution, provided a remedy.  “I therefore order the Director of the Administrative Office of the United States Court to submit Clark’s FEHB Health Benefit Election form, which she signed and submitted on July 12, 2012, to the appropriate health insurance carrier.”  He also affirmatively orders that the Office process future “beneficiary addition requests without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state.”   In case the federal Office of Personnel Management “blocks this relief,” he would alternatively order monetary relief, along the lines that the 9th Circuit has approved in the Levenson case from California, providing the funds necessary to compensate Clark for the cost of obtaining insurance coverage for her spouse.  This, of course, would cost the government more than including Clark’s spouse under the employee group insurance policy. 

Judge Pregerson’s ruling, which is non-precedential and only binds the parties, nonetheless takes on a question left hanging during the Windsor oral argument, of whether the constitution would require the federal government to recognize legally-contracted marriages, regardless where the married couple resides.  This is a significant question because state marriage laws generally do not have residency requirements, so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states (or countries, usually Canada) to get married, but are living in jurisdictions that don’t recognize their marriages.  When questioned about such situations during the Windsor argument, her counsel, Roberta Kaplan, stated that the plaintiff was only asking for federal recognition in states that recognized the marriages, but it is difficult to see how a federal constitutional right could be so cabined, and it would be unfortunate if the Supreme Court were to hold Section 3 invalid without addressing this question of broader application.