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Trump Changes Policy on Military Service by Transgender Individuals

Posted on: August 27th, 2017 by Art Leonard No Comments

On July 26, to the surprise of Defense Department officials and members of the White House staff, Donald Trump transmitted a series of three tweets beginning at 8:55 a.m. announcing a new policy concerning military service by transgender individuals. “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……  ….Transgender individuals to serve in any capacity in the U.S. Military.  Our military must be focused on decisive and overwhelming….. ….victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”  This appeared to be a complete reversal of a policy decision made a year earlier by the Defense Department, which after a period of prolonged study that included a report commissioned from the RAND Corporation (a “think-tank” that specializes in producing studies on defense-related issues by contract with the DoD) and widespread consultations within the military and with military allies that allow transgender individuals to serve had concluded to rescind an existing regulation that established a ban on service by transgendered individuals on purported medical grounds.  As a result of the policy newly announced during June 2016, hundreds of transgender service members “came out” to their superior officers, and some service members who had been concealing their gender identity for years began the process of transition with the assurance that the costs would be covered under military health policies.  Estimates of the number of transgender service members ranged from a few thousand as high as 15,000, most of whom have not yet made their presence known to their commanding officers.  This unknown group likely includes many officers as well as enlisted personnel.

Attempts to discern details of the new policy were at first unsuccessful because neither the usual sources in the White House nor the Pentagon had received any advance notice or details. Admiral Paul F. Zukunft, Commandant of the Coast Guard, immediately announced that the Coast Guard would not “abandon” its several openly-transgender members, and that he and his staff had reached out to reassure them.  The other military service heads and the Chairman of the Joint Chiefs of Staff quickly announced that there would be no change of policy until some formal directive came from the Office of the President.  A spontaneous presidential tweet was not deemed by the Pentagon to be an order to abandon an existing published policy.  The White House finally issued a document titled “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security” on August 25, signed by President Trump, directing a series of steps that appeared to fall far short of the draconian July 26 tweets.

After a paragraph summarizing what had been done the previous summer and noting that the Secretaries of Defense and Homeland Security had extended a July 1, 2017, date for allowing transgender people to join the military to January 1, 2018, the President stated his reasoning: “In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupting unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.”  This was stated in blithe disregard of the fact that over the past year transgender military service members, in reliance on the announced policy change, had come out to their commanders by the hundreds and that there was no evidence during that time of any adverse effect on military operations or unit cohesion, or of significant strain on the military’s budget attributable to this policy change.  There has been no reporting that military commanders had asked to abandon the policy allowing transgender individuals to serve, and there has been no reporting that either Trump or members of his staff have actually reviewed the voluminous materials generated by the review process undertaken by the DoD prior to announcing its change of policy in June 2016, or were reacting to actual data indicating problems over the past year (since there have not been reports of any such problems).

After invoking the president’s powers as Commander in Chief, the Memorandum continues, “I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above. The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted.”

The Memorandum then sets out specific “directives,” apparently intended to be the operative provisions of the Memorandum. First is to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing.”  In other words, the existing ban on enlisting transgender individuals will continue indefinitely, but can be ended when the Secretary of Defense convinces the president to end it.  Second is to “halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Interestingly, this directive mentions only “sex reassignment surgical procedures” but not any of the other costs associated with gender transition, including hormone treatment, which may reflect either ignorance by the White House staffers who drafted the Memorandum or a deliberate intention to make the exclusion as narrow as possible, focusing only on the political “flashpoint” of surgery. The Memorandum states that this second directive about surgical expenses will take effect on March 23, 2018.  In other words, transgender individuals currently serving will continue to be covered for sex reassignment surgical procedures at least until March 23, 2018, and continuing beyond then if cutting off coverage on that date interferes with completing surgical procedures already under way.  Or at least, that’s what it appears to say.

Third, in the section titled “effective dates and implementation,” the Memorandum gives the Secretary of Defense until February 21, 2018, to submit to the president a “plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum. The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law.  As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.”  The Memorandum also has a severability provision, the usual disclaimers accompanying presidential directives about not creating new rights or changing the authority of any government departments or agencies, and permission to the Secretary to publish the Memorandum in the Federal Register.  (It was made immediately available on the White House website.)

On a plain reading, the “effective dates and implementation” section appears to mark a substantial retreat from the absolutist tone of the July 26 tweets. In trying to construe the tweets, there had been speculation that transgender service members would be immediately discharged or pressured to resign in order to avoid discharge.  Leaks from the White House while staff members were working on a written guidance for the president to sign led to reports that transgender enlisted personnel would be allowed to serve out their enlistments but then be denied reenlistment while being encouraged to resign earlier, and that transgender officers could continue to serve their commissions but would be required to resign if being considered for promotions.

Based on the leaks, GLBTQ Legal Advocates and Defenders (GLAD), the Boston-based New England public interest law firm, and the National Center for Lesbian Rights (NCLR), based in San Francisco, with cooperating attorneys from Foley Hoag LLP and Wilmer Cutler Pickering Hale & Dorr LLP, filed a lawsuit on August 9 in the U.S. District Court for the District of Columbia, representing five “Jane Doe” plaintiffs, all presently serving transgender individuals, seeking declaratory and injunctive relief. Doe v. Trump, Case 1:17-cv-01597.  The plaintiffs, with varying lengths of service, present compelling stories about the harms the proposed policy would have on them, based, of course, on what was known when the complaint was filed.  Among them, of course, were interference with ongoing transitions, interference with attaining military pensions (which some were close to vesting), and loss of career and benefits, affecting not only the plaintiffs but their family members as well.  There was also the emotional stress generated by uncertainty about their future employment and welfare.

The three-count complaint asserts violations of equal protection and due process (Fifth Amendment) and invokes the doctrine of estoppel to prevent adverse moves against the plaintiffs and those similarly situated as presently serving transgender members of the military who had been encouraged to “come out” as transgender under the earlier policy. The named defendants, in addition to the president, are Secretary of Defense James Mattis, Chairman of the Joint Chiefs of Staff Joseph F. Dunford, Jr., the Departments of the Army, Air Force, and Coast Guard, Army Secretary Ryan D. McCarthy, Air Force Secretary Heather A. Wilson, Homeland Security Secretary Elaine C. Duke, and, for good measure, THE UNITED STATES OF AMERICA.  There was some speculation and criticism that filing the lawsuit before a formal policy was announced or implemented was premature and might result in a dismissal on grounds of standing or ripeness, but the release of the formal guidance just a few weeks after the suit was filed will undoubtedly lead to the filing of an amended complaint focusing more specifically at the changes announced in the Memorandum.  The lengthy delay specified by the Memorandum for implementing changes may be invoked by the Justice Department in seeking to get this case dismissed.  Perhaps the Memorandum was drafted with this strategic use in mind.

Press coverage of the July 26 tweets showed overwhelming opposition and criticism from media, many government officials, and members of both parties in Congress. Those who voiced support of the president’s announcement came from the House Republicans who had waged a losing battle to amend a pending Defense budget measure to ban use of any appropriations to pay for sex reassignment surgery for military members, and there were soon press reports that supporters of that amendment had specifically asked the president to take steps to prevent spending federal funds for this purpose.  Furthermore, it was reported that threats had been made to block passage of the Defense measure – which was intended to provide some funding for the president’s project to “build the wall” along the U.S. border with Mexico (reflecting his ignorance of world history, and most specifically of the spectacular failure of the vaunted “Maginot Line” constructed after World War I to protect France from any future invasion by German military forces) – unless the president prevented military expenditures on sex reassignment procedures.  To the simple-minded president, the solution was obvious.  Reviving a ban on all military service by transgender individuals meant that there would be no openly transgender individuals in the military seeking to have such procedures performed and, since reversing Obama Administration policies regardless of their merits seems to be the main goal of many of Trump’s actions, simply overturning the Obama Administration policy became his simplistic solution to his political problem.  There was no indication that Trump made this decision after consulting “my Generals” or military experts – at least, the White House never revealed the names of any such individuals who were consulted, and it appeared that Secretary Mattis had merely been informed of the president’s intentions the night before the tweets.  One suspects that Trump’s “expert” was likely Steve Bannon, a former Marine.

The August 25 Memorandum did not require the immediate, or even eventual, discharge of anybody, and appeared to give Secretary Mattis wide discretion to come up with an implementing plan and at least six months to do it, while barring any action against transgender service members during the intervening time. Furthermore, in typical “kick the can down the road” Trump style (which is, admittedly, a typical style of U.S. politicians generally, only more pronounced in this president), it leaves open the possibility that the Obama Administration policies will be left in place, provided Mattis asks for this in writing summoning persuasive evidence that nothing is gained and much is lost by preventing transgender individuals from enlisting or being commissioned out of the service academies or by blocking transgender service members (including commissioned officers) from continuing their service.  Press accounts noted that the anticipated expense of covering sex reassignment surgery was dwarfed by the annual military expenditure on Viagra and similar drugs  (Who knew, as Trump might ask, that the Defense Department, the government’s most “macho” agency, was spending so much money to stiffen the limp genitals of male members?), and that the replacement costs for several thousand fully-trained and productive military members would far outweigh the costs of down-time for the relatively small number of individuals at any given time who might be unavailable for assignment while recovering from sex reassignment surgery.  (There is no indication that the other steps in gender transition, including hormone therapy, are disabling in a way that would interfere with military service.)

As worded, the Memorandum leant itself to the interpretation that with the passage of time, as the immediate political problem that “inspired” Trump to emit his tweets had been surmounted, sober heads could prevail, Mattis could reassure the transgender troops that nothing was happening right away, and eventually the president would accept Mattis’s written recommendation to allow transgender individuals to serve after all. (This interpretation depends on Mattis having the fortitude and political courage to tell the president, as he had done during the transition after the election on the subject of torture as an interrogation device, that Trump’s announced position did not make sense as a matter of military policy.)  Of course, the Memorandum directive means continuing discrimination against transgender individuals who seek to enlist, raising serious constitutional issues in light of the increasing recognition by federal courts that gender identity discrimination is a form of sex discrimination in equal protection doctrine, but the Memorandum, as it plays out, could avoid the loss of employment for transgender individuals now serving, although it would pose continuing emotional stress stemming from the uncertainty of future developments until Mattis convinces the president to countermand his new “policy.”

When the GLAD/NCLR suit was filed, other organizations, including Lambda Legal and ACLU, announced that they would be preparing lawsuits as well, and the release of the Memorandum on August 25 led to immediate announcements that more lawsuits will be filed. “See you in court,” wrote ACLU Executive Director Anthony Romero to the organization’s supporters.  As with other “bold” executive actions by Trump, this anti-transgender initiative may be stopped in its tracks by preliminary injunctions, although the Memorandum was evidently drafted to try to minimize that likelihood by suggesting that nothing much is going to happen right away other than the continuing ban on enlistment.  As to the enlistment ban, it is questionable that the original GLAD/NCLR plaintiffs, all currently serving members, have standing to challenge it, but one expects that an amended complaint would add as plaintiffs some transgender individuals who hope to enlist.

A Flood of New Litigation on LGBT Rights

Posted on: May 10th, 2016 by Art Leonard No Comments

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.

 

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

Posted on: August 26th, 2014 by Art Leonard 1 Comment

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Pennsylvania’s Next: U.S. District Judge Orders State to Allow and Recognize Same-Sex Marriages, and State Complies!

Posted on: May 20th, 2014 by Art Leonard No Comments

U.S. District Judge John E. Jones III, a Republican appointed to the federal district court in Harrisburg, Pennsylvania, by President George W. Bush in 2002, ruled on May 20 in Whitewood v. Wolf that Pennsylvania’s statutes banning same-sex marriages in the state or recognition of same-sex marriages formed outside the state violate the 14th Amendment’s Due Process and Equal Protection Clauses. Judge Jones issued an order declaring both statutes unconstitutional and permanently enjoining the state from enforcing them. Neither his opinion nor his order mentioned any stay, but it seemed likely that Governor Tom Corbett would seek a stay, first from Judge Jones and then, if one was not forthcoming, from the 3rd Circuit Court of Appeals, which is based in Philadelphia. But Governor Corbett surprised everybody by waiting one day and then announcing he would not appeal the ruling, making Pennsylvania the 19th marriage equality state. Meanwhile, shortly after Judge Jones’s ruling was announced, same-sex couples began getting marriage licenses.

The American Civil Liberties Union filed this lawsuit last July on behalf of what Judge Jones described as “eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples.” Some of the couples are seeking marriage licenses, others are seeking recognition of their out-of-state marriages, the teenagers complain about the deprivations they suffer from their parents not being married, and the widow, who married her late partner out of state, complains about not being recognized as a surviving spouse. One of the state’s defenses to this lawsuit was that the plaintiffs had failed to show any injury for the court to redress, a nonsensical position that Judge Jones dispatched efficiently. He found that the “stigmatizing harms” imposed by the statutes, which were passed in 1996 in response to a marriage equality lawsuit in Hawaii, were “cognizable” as a matter of law, and, additionally, that “plaintiffs suffer a multitude of daily harms, for instance, in the areas of child-rearing, healthcare, taxation, and end-of-life planning.” The state’s other main defense was that this case is precluded by the Supreme Court’s 1972 Baker v. Nelson ruling that the issue of same-sex marriage did not raise a “substantial federal question.” All of the recent marriage equality decisions have rejected this argument, pointing to the significant developments in American constitutional law since 1972, not least last year’s Supreme Court ruling striking down the Defense of Marriage Act, to conclude that exclusion of same-sex couples from marriage now presents a very substantial federal question.

Judge Jones found the Pennsylvania statutes unconstitutional on two separate constitutional theories: due process and equal protection.

The due process theory rests on Supreme Court decisions finding that the “right to marry” is a fundamental right, guaranteed to each individual. Judge Jones rejected the state’s argument that because “the United States Supreme Court has never recognized that the fundamental right to marry includes the right to marry a person of one’s choice,” the state’s marriage laws did not violate the plaintiffs’ due process rights. After briefly summarizing the Supreme Court’s important marriage decisions, Judge Jones wrote, “this Court is not only moved by the logic that the fundamental right to marry is a personal right to be exercised by the individual, but also rejects Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right,” he continued, “but is rather a right that these individuals have always been guaranteed by the United States Constitution.” He went on to find that this right encompassed both the right to marry and the right to remain married after crossing a state line, so the due process theory served to invalidate both Pennsylvania’s ban on same-sex marriage and its ban on recognizing out-of-state same-sex marriages.

Turning to equal protection, the judge noted that one branch of equal protection jurisprudence would apply strict scrutiny to any law that discriminates regarding a fundamental right, and nobody contends that same-sex marriage bans would survive such strict scrutiny. However, setting that issue aside, he proceeded to analyze whether discrimination because of sexual orientation requires heightened scrutiny. The 3rd Circuit Court of Appeals has never ruled on the question, and neither has the Supreme Court, at least directly. Judge Jones noted that several of the other courts that have issued marriage equality rulings, in addition to the 9th Circuit in a recent jury selection case, have held that heightened scrutiny is appropriate for sexual orientation claims, and that a review of the Supreme Court’s gay rights decisions suggests that the Court has been using a more demanding standard of judicial review than the traditional deferential rational basis test. After reviewing the factors that courts generally consider in deciding whether a particular form of discrimination is subject to heightened scrutiny review, Jones concluded that this was the appropriate level of review.

Consequently, presuming the ban to be unconstitutional, Jones considered whether there was an “important governmental objective” to support the ban. Since the state had been arguing in support of using the deferential rational basis test, its arguments fell quite short. Jones identified “promotion of procreation, child-rearing and the well-being of children” and “tradition” as the only interests the state was proposing. “Significantly,” he wrote, “Defendants claim only that the objectives are ‘legitimate,’ advancing no argument that the interests are ‘important’ state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.”

Like the other trial judges ruling in marriage equality cases over the past several months, Judge Jones rose to an eloquent conclusion. “The issue we resolve today is a divisive one,” he wrote. “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not makes its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of ‘separate but equal.'” After citing the Supreme Court’s key ruling against racial segregation, Brown v. Board of Education (1954), he continued, “In the sixty years since Brown was decided, ‘separate’ has thankfully faded into history, and only ‘equal’ remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage. We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Pennsylvania’s marriage statutes require a three-day process to apply for and receive a marriage license. Thus, unless individual couples can secure some sort of waiver of this waiting period, it is possible that speedy action by the state to obtain a stay could avoid what happened in Utah, Arkansas and Michigan, where same-sex marriages took place before the state was able to secure a stay pending appeal. In those states, one could apply for a license, obtain it immediately, and then quickly have a marriage ceremony, but Pennsylvania’s laws do not routinely provide such speed. Judge Jones’ decision to issue his opinion on a Tuesday, rather than right before a weekend, made it more likely that the state might secure a stay before marriages could take place.

Taking together both the rulings on the right to marry and those rulings that just dealt with marriage recognition, Judge Jones’s decision was the fourteenth consecutive ruling by a state or federal court since last June’s U.S. Supreme Court DOMA decision to rule in favor of LGB plaintiffs seeking marriage rights or recognition. Since then no court has rejected such a claim, although many of the trial court decisions are “on hold” due to stays pending appeal. In New Mexico and New Jersey, the states’ highest courts last year agreed with their trial courts, and in Oregon, yesterday, where the state signified in advance that it would not appeal a marriage equality ruling, same-sex marriages could quickly begin taking place. Each new decision now cites the lengthening list of prior decisions, the sheer weight of which is building to a daunting body of precedent, even though viewed individually trial court rulings may have little precedential weight. We still await the first federal appellate ruling that the 14th Amendment of the U.S. Constitution guarantees to gay people the same individual right to marry the partner of their choice. The U.S. Courts of Appeals for the 10th Circuit (in Denver) and the 4th Circuit (in Richmond) have heard arguments on cases arising from Utah, Oklahoma and Virginia, and other circuits will hear arguments soon from other states. While there may be more federal trial court decisions in the months ahead, with scores of cases pending in all but three of the remaining states that ban same-sex marriage, the next truly significant development will be the first court of appeals ruling, which could come at any time.

Note added a few hours after posting this: Judges can grant individual waivers of the three-day waiting period, and I understand that some judges have already granted waivers and licenses have been issued to some couples. So no matter how fast the state is in requesting a stay, some couples will be getting married before that can happen.

Federal Court Says Utah Must Recognize Same-Sex Marriages That Were Celebrated Before the Supreme Court Stay

Posted on: May 19th, 2014 by Art Leonard No Comments

U.S. District Judge Dale A. Kimball ruled on May 19 that the state of Utah must recognize the same-sex marriages that were performed in the state from December 20 to January 6. Another federal district judge, Robert Shelby, ruled on December 20 in Kitchen v. Herbert that Utah’s ban on same-sex marriage was unconstitutional. Judge Shelby, and subsequently the 10th Circuit Court of Appeals, refused to stay that decision pending appeal and more than 1300 marriage licenses were issued to same-sex couples before the U.S. Supreme Court responded affirmatively to the state’s request for a stay pending appeal. After the Supreme Court issued its stay, Governor Gary Herbert declared that the same-sex marriages that had been performed were “on hold” as the stay had “revived” the state’s marriage ban. In this ruling in Evans v. State of Utah, Judge Kimball found that the state is barred by the Due Process Clause of the 14th Amendment from putting legally valid marriages “on hold,” but temporarily stayed his own ruling for 21 days to give the state an opportunity to appeal to the 10th Circuit.

There was some confusion on the part of the state government after Judge Shelby issued his injunction against the state’s marriage ban. Some clerks began issuing licenses quickly, while others hesitated, awaiting instructions from the state government. Finally, upon the attorney general’s advice that clerks who refused to issue licenses could be held in contempt by the federal district court, many clerks fell into line and issued more than 1300 licenses, as state officials announced that such marriages were valid. However, when the Supreme Court issued its stay and the governor declared that those marriages were now “on hold” because the state could not recognize them under the “revived” laws, the ACLU filed suit on behalf of several recently-married couples, seeking an injunction requiring the court to recognize the marriages.

The result was to interfere with the ongoing efforts by recently-married same-sex couples to assert their rights, including several adoption proceedings that were thrown into limbo as Utah trial judges were uncertain how to proceed. Indeed, the state is facing the threat of a contempt proceeding from one trial judge who issued an adoption order that state officials are refusing to honor by issuing an appropriate birth certificate, and there are already questions pending at the Utah Supreme Court about the status of these marriages. The court has temporarily stayed various adoption proceedings while it decides whether the state must recognize the marriages. It will be interesting to see what weight it accords to the federal district court’s ruling on vested rights, which depends on that court’s reading of Utah precedents.

The ACLU filed its lawsuit in state court, but the state removed the suit to federal district court, and opposed the plaintiffs’ motion to certify to the Utah Supreme Court the question whether couples legally married under Utah law have vested rights in their marriage that could not be taken away by the state without a compelling interest. The plaintiffs moved for a preliminary injunction, arguing that as a matter of law their vested rights were being abridged by the state for no valid reason. The state, in response, argued that the Supreme Court’s stay had a retroactive effect, restoring the marriage ban going back to December 20, 2013, thus rendering the marriages invalid. And, after having opposed the plaintiff’s motion to certify the question to the Utah Supreme Court, the state reversed course and urged Judge Kimball to certify virtually the same question, but Judge Kimball refused to do so, finding that Utah precedents are clear on the question of vested marriage rights.

Judge Kimball found that the state’s arguments were contradicted by well-established principles of Utah law as well as the Due Process Clause of the 14th Amendment. Judge Kimball placed heavily reliance on the California Supreme Court’s ruling in the somewhat analogous situation created when California voters adopted Proposition 8 in November 2008 after thousands of same-sex couples had married in the five months after that court’s marriage equality decision went into effect in June 2008. In that case, Strauss v. Horton, the California Supreme Court said that those who had married at a time when same-sex marriage was legal had vested rights in their marital status and everything that went with that status, which could not be taken away by a subsequent constitutional amendment. Kimball found that Utah cases dating back to the 19th century had also taken the position that once a couple was legally married, they had vested marriage rights protected against retroactive rejection by the state.

Utah’s attorneys argued that the California situation with Proposition 8 was distinguishable. The Utah licenses were issued in compliance with an injunction by a single federal trial judge that the state had promptly appealed. Thus, they said, it was not in that sense a final order in the case, unlike the California Supreme Court’s ruling on marriage equality, which could only be overturned by a state constitutional amendment. (That amendment was subsequently ruled unconstitutional by a federal district court in the famous Perry v. Schwarzenegger case, which went into effect last June after the U.S. Supreme Court ruled that the proponents of Proposition 8 did not have standing to appeal the court’s ruling, which had not been appealed by state officials.) Judge Kimball was not persuaded by this distinction, and he also pointed out the strong bias against retroactive application of new legal rulings. The Supreme Court did not issue any explanation about the impact of the stay it issued on January 6, and Judge Kimball pointed out that such an action would not be deemed to have any sort of retroactive effect unless the Supreme Court had voiced such an intention.

He also found that there were strong Utah judicial precedents concerning vested rights in marriage, holding that such rights vest when the marriage was performed. According to Judge Kimball, from the time Judge Shelby issued his injunction until the time the Supreme Court stayed the injunction pending appeal, it was legal for same-sex couples to marry in Utah, and as soon as any such marriage was performed, the couple had vested rights in the marriage that could not be abridged by the state. He pointed out that this was consistent with the Supreme Court’s DOMA ruling, U.S. v. Windsor. “The Windsor Court held that divesting ‘married same-sex couples of the duties and responsibilities that are an essential part of married life’ violates due process,” he wrote.

Judge Kimball went through the wording of the Utah constitutional and statutory same-sex marriage bans, and found that all of those provisions were stated in the present tense and made no mention of retroactive application. Thus, if one construed the Supreme Court stay to have “revived” those provisions while the case was on appeal, there was no basis to apply them retroactively.

“The State argues that application of Utah’s previously existing marriage bans after the Supreme Court’s Stay Order is not retroactive application of the bans because the laws were enacted long before the Plaintiffs entered into their marriages,” he wrote. “However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State’s argument fails to recognize that Utah law defines a retroactive application of a law as an application that ‘takes away or impairs vested rights acquired under existing laws in respect to transactions or considerations already past.’ Under this definition, the State’s application of the marriage bans to place Plaintiffs’ marriages ‘on hold,’ necessarily ‘takes away or impairs vested rights acquired under existing law.” Judge Kimball concluded that even if Judge Shelby’s decision is eventually reversed and the injunction dissolved, the marriages that were performed would remain valid under the vested rights theory and the strong policy against retroactive application of law.

After analyzing the factors applied in the 10th Circuit to determine whether a preliminary injunction should be issued, Judge Kimball found that all the factors had been satisfied. “Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim,” he wrote, and he found that they had also established the necessary irreparable harm if their marriages were not recognized. On the other hand, he found, “The State has no legitimate interest in depriving Plaintiffs of their constitutional rights,” and he also found “no harm to the State based on an inability to apply the marriage bans retroactively.” As to the public interest, “the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs’ marriages.”

The state’s lawyers had asked the court to stay its preliminary injunction so that the state could appeal it to the 10th Circuit. Judge Kimball concluded that “the State has not met its burden of establishing the factors required for a stay pending appeal,” but decided to exercise discretion to grant to the state a “limited 21-day stay during which it may pursue an emergency Motion to Stay with the Tenth Circuit.” His explanation: “The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21-day stay.” However, unless the 10th Circuit responds favorably to the state’s request, Judge Kimball’s order will go into effect requiring recognition of the marriages.

The plaintiffs were represented at the court’s hearing on the preliminary injunction motion by attorneys Erik Strindberg, Joshua A. Block and John Mejia.

Judge Kimball was appointed to the federal district court by President Bill Clinton in 1997 and took senior status and a reduced caseload in November 2009 upon reaching age 70. He teaches at Brigham Young University Law School, and is an active member of the Mormon Church, in which he has held various leadership positions.

Supreme Court: Clearing Up the Cert Backlog After the DOMA and Prop 8 Decisions

Posted on: June 27th, 2013 by Art Leonard No Comments

Yesterday the Supreme Court decided U.S. v. Windsor, affirming the 2nd Circuit and holding that Section 3 of the Defense of Marriage Act violates the 5th Amendment, and Hollingsworth v. Perry, holding that the initiative proponents of Proposition 8, who had been allowed to intervene in its defense at trial, lacked standing to appeal the district court’s ruling.   The decisions will go into effect after the Court issues its mandate, which is normally 25 days after decision day, in order to give the losing party a shot at filing a motion for rehearing. 

One could argue that there is no “losing party” in Windsor, since neither Edie Windsor nor the U.S. Government has any beef with the Court’s ruling.  The Bipartisan Legal Advisory Group of the House of Representatives (BLAG) may have a beef with it, but I think any motion for rehearing that they might file would be quickly dismissed, inasmuch as Justice Kennedy’s opinion does not rule on whether they had standing to participate in the case as a full party, and none of the dissenters argued that they have standing, either.  In Hollingsworth, the mandate would send the case back to the 9th Circuit, which would then lift its stay of Judge Vaughn Walker’s Order, which enjoins California officials from enforcing Proposition 8.  At that point, same-sex marriages would resume in California.  Governor Brown has already authorized a memorandum that was sent out to County Clerks instructing them the state believes that Walker’s Order is binding throughout the state, and that they are to begin issuing licenses to same-sex couples as soon as the stay is lifted.

Today, June 27, the Supreme Court addressed the backlog of cert petitions that have piled up in the wake of the same-sex marriage cases, so here is the rundown from the Court’s announcements this morning:

1 – The Windsor case.  The court had three cert petitions in the Windsor case, one filed by Robbie Kaplan and the ACLU on behalf of Edith Windsor, the others filed by the U.S. Goverment and BLAG.  The Court granted the government’s petition, which is why the case is called U.S. v. Windsor in the Supreme Court.  This morning, the Court denied certiorari in the petitions filed by Windsor, No. 12-63, and BLAG, No. 12-785.  (BLAG didn’t file its petition until after the 2nd Circuit had ruled, and in fact the Court granted the government’s petition before BLAG filed its petition.)

2 – The 1st Circuit Gill/Massachusetts case.  The 1st Circuit Court of Appeals issued a decision holding Section 3 of DOMA unconstitutional under the 5th Amendment, but rejecting the state of Massachusetts’ argument that DOMA violated the 10th Amendment by overriding the prerogatives of the state.  BLAG filed a petition for certiorari from the ruling against the private plaintiffs, represented by Gay & Lesbian Advocates and Defenders, and that petition was denied this morning in No. 12-13.  The government also filed a petition for certiorari, in the name of the U.S. Department of Health & Human Services, which was the lead defendant in the case, and that petition was denied today, No. 12-15.  The state of Massachusetts also filed a petition, seeking to vindicate its federalism claim.  The Court denied that petition as well, No. 12-97. 

Justice Kennedy’s opinion in Windsor made something out of the federalism argument, although I think Chief Justice Roberts was strategically misrepresenting the majority opinion when he wrote in dissent that the main theme of the majority opinion was federalism.  It was not.  The ruling was premised on the 5th Amendment’s Due Process and Equal Protection requirements, although Kennedy did discuss the federalism aspects of the case as one of the factors that required the Court to give “careful consideration” to this constitutional challenge.  BLAG did not file a petition in this case. 

The Court noted that Justice Kagan did not participate in the consideration or decision on these petitions on the 1st Circuit case, presumably because as Solicitor General she had participated in the Justice Department’s internal discussions about the District Court proceedings and the appeal to the 1st Circuit.   It is likely that the reason the Court decided to take the Windsor case instead of this case was so that a full bench could participate, as both cases presented the identical issues under the 5th Amendment.  The original district court complaint in Windsor was filed after Justice Kagan took the bench, so she was not involved in the Justice Department’s conduct of the litigation and did not feel any need to recuse herself.

3 – The Golinski case.  Lambda Legal represents Karen Golinski, an employee of the 9th Circuit Court of Appeals who was denied health insurance coverage for her same-sex spouse after they married in California in 2008 prior to the passage of Proposition 8.  Golinski won a ruling from a federal district judge within the 9th Circuit that Section 3 is unconstitutional, and the government had filed a petition for certiorari, seeking to bypass the 9th Circuit and bring the case directly to the Supreme Court.  This morning, the Court denied the petition, No. 12-16.  In light of the ruling in Windsor, federal court employees legally married to their same-sex partners in California will clearly be eligible to participate in the group insurance plan for the federal courts on the same-basis as employees married to different-sex couples, since California recognizes the marriages that were performed in 2008 prior to the enactment of Prop 8, by virtue of a California Supreme Court decision issued in 2009 in response to a challenge to the passage of Prop 8.  Still to be sorted out, but likely, is that federal court employees who work in states that don’t recognize their same-sex marriages will be similarly-entitled, but stay tuned on that issue. 

5 – The Pedersen case.  After having won their DOMA case in Massachusetts, GLAD decided to venture into the New England portion of the 2nd Circuit by filing a similar case in Connecticut, where they won a ruling from the district court and then petitioned the Supreme Court to take the case directly, bypassing the 2nd Circuit.  This seemed to make sense, as the 2nd Circuit was focused on the Windsor case from New York, and it seemed likely that all the pending DOMA cases were in a position to contend for Supreme Court review.  The government also obliged by filing a petition shortly after GLAD had filed.  This morning, the Court dismissed the Pedersen (GLAD) petition, No. 12-231, and the government’s petition, which was filed on behalf of the Office of Personnel Management, No. 12-302.

6 – The Arizona Domestic Partnership Benefits Case.  The Supreme Court also received a petition last summer from Arizona Governor Jan Brewer, asking the Court to overturn a preliminary injunction that had been issued by a federal judge in Arizona requiring the state to continue providing health benefits to same-sex domestic partners of Arizona state employees while the court considered the merits of Lambda Legal’s claim that the government’s revocation of those benefits violated the 14th Amendment.  The 9th Circuit had affirmed the district court’s grant of preliminary injunctive relief, agreeing with the district judge that plaintiffs had adequately shown a likelihood of success on the merits and irreparable injury if they were to lose their insurance coverage while the case was being litigated.  This morning, the Court denied the petition in Brewer v. Diaz, No. 12-23.  I think it is most likely this one was denied because the Court would rarely get involved in an interlocutory appeal of a pre-trial order of this type unless it was overwhelmingly eager to get into the substantive legal issues in the case, and yesterday’s decision in Hollingsworth v. Perry, dismissing the Prop 8 appeal on standing grounds, seems to signal that the Court is determined to put off for now the question of how to analyze sexual orientation equal protection claims under the 14th Amendment. 

7 – The Nevada marriage case.   This is the strangest and most “long-shot” petition of those denied this morning.  In Nevada, Lambda Legal is suing for a ruling that the state’s anti-gay marriage amendment is unconstitutional and gay people should be entitled to marry.  The district court allowed the Coalition for the Protection of Marriage, which was behind the marriage amendment, to intervene as co-defendants with the state.  The district court ruled against the plaintiffs, finding that there is no right under the 14th Amendment for same-sex couples to marry (explicitly disagreeing with Judge Walker’s decision in the Prop 8 case), and the case would next logically go to the 9th Circuit.  But the Coalition filed a cert petition, asking the Supreme Court to take the case directly and affirm the district court.   (Now, this sounds odd in light of the arguments about the U.S. government’s standing in the Windsor case to appeal a ruling with which it agreed, doesn’t it?)  Yesterday’s ruling in Hollingsworth seems to dispose of this one quite easily on standing grounds.  Clearly, the Coalition does not have standing to bring this case to the Supreme Court under the majority opinion’s reasoning in Hollingsworth, especially since the state of Nevada is defending its marriage amendment in court, unlike the state of California in the Prop 8 case, and the state will presumably fight to defend the district court’s ruling in the 9th Circuit.  Anyway, the petition in Coalition v. Sevcik was dismissed this morning, No. 12-689.  The legislature in Nevada has given initial approval to a ballot measure that would repeal the anti-gay marriage amendment and replace it with a marriage amendment that institutes marriage equality in the state.  The proposed amendment will need to be approved again after a new legislature has been elected before it can be placed on the ballot.  

So that clears the decks at the Supreme Court on same-sex couple legal recognition cases for now, unless a motion for rehearing is filed in Windsor or Perry.  The Court rarely grants motions for rehearing, and the likelihood that such a motion would be granted in either of these cases is slight, so a mandate to put the opinions into effect should be issued by the fourth week in July (which has 4-1/2 weeks).