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Supreme Court Stays Virginia Marriage Ruling

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

The Supreme Court issued an unsigned order today staying the 4th Circuit’s mandate in Bostic v. Schaefer, the Virginia marriage equality case.  The 4th Circuit panel had rejected Prince William County Clerk Michele McQuigg’s motion to stay pending Supreme Court review, and McQuigg promptly renewed her request for a stay by filing the motion with Chief Justice John Roberts.  Roberts requested input from the other parties, and then referred the matter to the full Court, which issued the unsigned order on August 20.  If the order had not been issued, the 4th Circuit’s ruling would have gone into effect tomorrow morning, August 21, at 8 am.

Virginia Attorney General Mark Herring has already filed a petition for certiorari with the Supreme Court seeking review and affirmance of the 4th Circuit’s decision.  He had supported McQuigg’s motion for a stay.  The plaintiffs in the underling cases, represented by the ACLU and Lambda Legal, had opposed the stay request, and urged the Court that if it were to stay the 4th Circuit ruling, it move quickly to grant cert and decide the case on the merits.

County clerks and various licensed marriage celebrants in Virginia were already gearing up for the possibility of issuing licenses and performing ceremonies on August 21, since Virginia law does not require couples to observe any waiting period after getting their licenses.  But the Supreme Court’s granting of the stay was really no surprise, because it stayed the 10th Circuit’s Utah marriage ruling and, as lower courts have generally acknowledged, sent a clear signal that if a state wants to appeal a marriage equality ruling, the Supreme Court is willing to stay the ruling pending appeal.

If one applies the “guidelines” that the Supreme Court has set out in the past as its standard for granting stays pending appeal, then one can attribute to this stay ruling a view among the Justices that it is likely that a petition for certiorari will be granted in a marriage equality case this term, that there is at least a fair possibility that the Supreme Court might reverse the 4th Circuit’s decision, that irreparable harm to the state might result from allowing the 4th Circuit’s decision to go into effect and the balance of equities weighs in favor of the party seeking the stay.  But I would question how stringently the Court is applying these standards, and I think the issuance of this stay is more about politics and prudence than about applying these tests.

On the one hand, it seems highly likely to me that the Court will grant cert in one of the pending marriage equality cases.  Since U.S. v. Windsor last year, the Court’s latest word on same-sex marriage, was a 5-4 decision, there is certainly a “fair” possibility that the swing voter in the prior case could swing the other way on this one, and marriage equality proponents should not count any chickens before they are hatched.  But the rhetoric of Justice Anthony Kennedy’s opinions in Windsor, Lawrence v. Texas and Romer v. Evans strongly suggests that he may rule similarly in favor of the plaintiffs-respondents if the Court grants cert in the Utah, Oklahoma or Virginia cases.  As to irreparable harm, unless one accepts without question the contention that a state suffers irreparable harm every time a federal court blocks the enforcement of a state law, no matter how ill-conceived or potentially unconstitutional is the law, I have trouble seeing it.  Now that same-sex couples have been getting married in 19 states and the District of Columbia, in some states for several years, it is possible to see quite clearly that allowing such marriages to take place or be recognized does not cause any irreparable harm to the states.  In terms of the balance of the equities, it seems pretty clear that the harm to a state is to its “sovereign dignity” but will not adversely affect the public welfare or the economy of the state or its institution of marriage, whereas delaying the marriage rights of same-sex couples could clearly work irreparable injuries to them in terms of dignitary and economic losses, and even loss of life and liberty.  So the balance of the equities on these stay petitions clearly favors the respondents, in my opinion.

At any rate, what the Supreme Court says, even without explanation of its reasoning, is binding upon all parties, so the 4th Circuit’s mandate is stayed.

In its Order, the Court is very specific in providing that the stay will automatically be dissolved if the Court denies the petition for certiorari that Clerk Michele McQuigg is expected to file.  This suggests to me that if the Court decides to grant one of the other petitions, it will “hold” the McQuigg petition and neither deny nor grant it until it has decided on the merits the case that it accepts for review.

On the other hand, the Court is also very specific in stating that if the petition is granted, “the stay shall terminate upon the sending down of the judgment of this Court.”  Perhaps, as Chris Geidner suggests in his Buzzfeed.com report on today’s Order, this is intended to avoid the court of appeals “jumping the gun” and allowing same-sex couples to start marrying right away upon announcement of the Supreme Court’s opinion, as happened in 2013 when the 9th Circuit lifted its stay shortly after the Supreme Court dismissed the appeal in Hollingsworth v. Perry on jurisdictional grounds.  The big difference, of course, is that in Hollingsworth the stay had been granted by the 9th Circuit at the request of the appellants, so it was up to the 9th Circuit when to lift it.  In this case, however, the stay is being granted by the Supreme Court (having previously been denied by the 4th Circuit), so it is the Supreme Court that sets the terms, and presumably the Court will not “send down” its judgment formally to the court of appeals until the time has expired for filing motions for reconsideration or for reargument.  Thus, if the Supreme Court affirms the 4th Circuit, the Court will retain control over the timing of its decision going into effect.  This seems like a pragmatic move, inasmuch as a sweeping Supreme Court marriage equality ruling will require the remaining 31 states that ban same-sex marriage to make whatever adjustments are necessary to their forms and procedures in order to facilitate the volume of license applications they may subsequently experience, as well as the filing of stepparent adoption petitions, employee benefit plan enrollment forms, etc., from already-married same-sex couples seeking recognition of their marriages.  There might even be a small flood of pent-up divorce petitions….

To those unfamiliar with the workings of the Supreme Court and the appellate process, do not be misled by headlines reporting today’s development along the lines of “Supreme Court Blocks Virginia Same-Sex Marriages.”  While it is technically true that the stay “blocks” same-sex couples from marrying in Virginia on August 21, this is not a ruling on the merits by the Supreme Court, and it does not represent a judgment by the Court that same-sex couples are not entitled to marry.  It is a technical move by the Court to preserve its jurisdiction and the orderly appellate process by relieving the state of Virginia of the obligation to ignore its same-sex marriage ban until the Supreme Court has decided whether to weigh in on the controversy.

And, Justice Ruth Bader Ginsburg has already stated publicly her opinion that the Court will not “duck” a ruling on marriage equality this time around, as it did in 2013 in the California Prop 8 case.  The pending cert petitions present no major jurisdictional impediment to a ruling on the merits.  If the Court grants review in one of the marriage equality cases, there is likely to be a ruling on the merits before the end of the term that gets underway on October 6 — most likely sometime in the spring or early summer of 2015.

4th Circuit Votes to Strike Down Virginia’s Ban on Same-Sex Marriages

Posted on: July 28th, 2014 by Art Leonard 1 Comment

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit voted 2-1 to declare Virginia’s ban on same-sex marriage unconstitutional.  The opinion for the court issued on July 28 in Bostic v. Schaefer, 2014 U.S. App. LEXIS 14298, 2014 WL 3702493, did not go into immediate effect.  The court’s rules give the defendants up to two weeks to file a motion for rehearing or en banc review, or to file a notice to all parties that they are seeking review in the Supreme Court.  If the defendants don’t take any of those steps, the mandate must be issued within seven days, so the earliest date this ruling would go into effect would most likely be August 18.  However, since the two county court clerks who are the appellants are represented by Alliance Defending Freedom, a right-wing litigation group strongly dedicated to opposing same-sex marriage, it seems likely that a motion for en banc review or a petition to the Supreme Court will be filed, which would stay the ruling until the Supreme Court disposes of the case.

The circuit court’s decision will dictate the result of pending litigation in North and South Carolina and West Virginia, where pending cases have been “on hold” while the district judges waited to see what the 4th Circuit would do.  Those district judges might decide to wait to see whether there is further review before issuing their rulings, however.  One state in the 4th Circuit, Maryland, already has marriage equality as a result of state legislation ratified by the voters in 2012.

The consolidated cases decided by the 4th Circuit, Bostic v. Schaefer and Harris v. Rainey, took a circuitous route to get to the appeals court.  After the Supreme Court issued its decision on June 26, 2013, striking down Section 3 of the Defense of Marriage Act, the ACLU’s LGBT Rights Project announced that it was seeking plaintiffs for a lawsuit to challenge Virginia’s marriage ban, which is contained in statutes and a constitutional amendment.  While the ACLU was preparing its case, to be filed in the U.S. District Court for the Western District of Virginia, a same-sex couple in Norfolk, which is in the Eastern District of Virginia, decided to go forward on their own with their own private attorney.  Timothy Bostic and Tony London filed their lawsuit and the ensuing publicity brought an offer by the American Foundation for Equal Rights (AFER), which had litigated against California Proposition 8, to provide representation by Ted Olson and David Boies.  AFER’s offer was accepted, and the new legal team expanded the lawsuit by adding another couple as plaintiffs, Carol Schall and Mary Townley, who had married in California in 2008 and were seeking recognition of their marriage.

Olson and Boies pushed their case ahead more quickly than the ACLU, which filed its lawsuit shortly after the Bostic case was filed.  The ACLU focused on getting the trial judge in the Western District, Michael Urbanski, to certify their case as a class action, seeking to ensure that a win would be binding throughout the state.  Olson and Boies focused on pushing forward quickly to a summary judgment that would get their case up to the court of appeals, and District Judge Arenda L. Wright Allen accommodated them with a grant of summary judgment on Feburary 13, which she stayed pending appeal.  When the appeal was filed, the ACLU moved to intervene on behalf of their plaintiff class, as Judge Urbanski had put their case on hold pending a ruling by the 4th Circuit, and it was agreed that the ACLU would participate in the briefing and argument.

Things were also complicated on the defense side of the case.  Bostic and London had originally sued the governor and attorney general, as well as the local clerk in Norfolk who would not take their marriage application.  After the Schall-Townley plaintiffs were added, the amended complaint added Virginia State Registrar Janet Rainey, whose office plays a role in recognizing out-of-state marriages, as a defendant. The 2013 election in November turned out the Republicans and brought in the Democrats, and the new state leadership, Governor Terry McAuliffe and Attorney General Mark Herring, are marriage equality supporters who were not inclined to defend the ban.  Herring filed notices with the courts that the state would not provide a defense, which left that role to the clerks:  Norfolk Clerk George E. Schaefer, III, and Michele McQuigg, the Prince William County Clerk whose motion to intervene had been granted shortly before Herring, who was representing Rainey, notified the court that he would not offer a defense.  David Oakley, a local attorney from Chesapeake, Virginia, and Austin Nimocks, an attorney from Alliance Defending Freedom, a right-wing religious litigation group opposed to same-sex marriage, ended up representing the clerks in appealing Judge Wright Allen’s ruling.

At the oral argument before the three-judge panel in Richmond on May 13, Oakley and Nimocks argued for the clerks, Virginia Solicitor General Stuart Raphael argued on behalf of Rainey (now representing the Virginia executive branch’s position that the ban was unconstitutional), Olson argued for the AFER plaintiffs, and James Esseks, Director of the ACLU’s LGBT Rights Project, argued for the class action plaintiffs.

The three-judge panel selected for the argument was suitably diverse.  The senior member of the panel, Paul V. Neimeyer, was appointed to the court by George H.W. Bush in 1990.  Roger L. Gregory was appointed by Bill Clinton toward the end of his second term, was blocked in the Senate, and then was reappointed by George W. Bush as part of a deal to break a deadlock over Bush’s first group of appellate appointees.  Gregory is the first African-American to serve on the 4th Circuit.  Finally, the junior member of the panel, who ended up writing the opinion for the court, was Henry F. Floyd, appointed by Barack Obama in 2011.

Floyd’s opinion followed closely on the path set by the 10th Circuit Court of Appeals in June when it struck down the Utah marriage ban.  Both courts, faced with prior circuit precedent holding that sexual orientation discrimination claims were subject to deferential rational basis review, avoided that route entirely, instead basing their decisions on the conclusion that the plaintiffs were being denied a fundamental right, which required the court to subject the state marriage ban to strict scrutiny.  Under the strict scrutiny test, a challenged law can only survive if it is narrowly tailored to achieve a compelling state interest.  Most laws subjected to strict scrutiny are held unconstitutional.

Before getting to the main issue, however, Floyd contended briefly with the defendants’ contention that the plaintiffs lacked standing to bring the case, a make-weight argument of virtually no substance in these lawsuits, and that the Supreme Court had foreclosed this challenge by its 1972 ruling in Baker v. Nelson, a Minnesota case, that same-sex marriage did not present a “substantial federal question.”  Floyd pointed out that “every federal court to consider this issue since the Supreme Court decided U.S. v. Windsor [the DOMA case] has reached the same conclusion,” that the old case is no longer relevant.  He then cited the 10th Circuit’s ruling and ten U.S. District Court rulings.  He also quoted Justice Ruth Bader Ginsburg’s comment when this issue was raised during the oral argument in the Proposition 8 case: “Baker v. Nelson was 1971.  The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. . .  Same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

Turning to the main issue, Floyd asserted that the plaintiffs in this case were not seeking a new constitutional right – a right of same-sex marriage – but rather an individual right to get married to the partner of their choice.  As such, the majority of the court saw this case as falling into the same category as Loving v. Virginia, the Supreme Court ruling from 1967 that struck down Virginia’s ban on interracial marriages.  Floyd went through the various Supreme Court right-to-marry cases, finding a common thread supporting the plaintiffs’ contention.  “Over the decades,” he wrote, “the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”  After briefly describing the most important marriage precedents, he wrote, “These cases do not define the rights in question as ‘the right to interracial marriage,’ ‘the right of people owing child support to marry,’ and ‘the right of prison inmates to marry.’  Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.  The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of ‘freedom of choice’ that ‘resides with the individual.’  If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.”

Dissenting, Judge Niemeyer vehemently disagreed.  “In reaching this conclusion,” he argued, “the majority has failed to conduct the necessary constitutional analysis.  Rather, it has simply declared syllogistically that because ‘marriage’ is a fundamental right protected by the Due Process Clause and ‘same-sex marriage’ is a form of marriage, Virginia’s laws declining to recognize same-sex marriage infringe the fundamental right to marry and are therefore unconstitutional. . .  This analysis is fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly-proposed relationship of a ‘same-sex marriage.’  And this failure is even more pronounced by the majority’s acknowledgement that same-sex marriage is a new notion that has not been recognized ‘for most of our country’s history.’  Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.”  Niemeyer also suggested that the majority’s approach would lead to the argument that polygamous and incestuous marriages came within the fundamental right to marry.

The difference between the majority and the dissent over whether a fundamental right was involved was determinative of their outcomes.  Judge Floyd examined the five rationales advanced by the county clerks for maintaining a ban on same-sex marriage and found that none of them met the test of strict scrutiny.  Judge Niemeyer asserted confidently that several of these rationales would suffice to uphold the ban under the rational basis approach.  While disclaiming any view about whether same-sex couples should be allowed to marry as a matter of public policy, Niemeyer asserted that this was a decision for the state to make, and its voters had made the decision by adopting their marriage amendment.

Judge Floyd’s discussion of the various state rationales followed now-familiar paths after two dozen prior marriage equality rulings by federal courts.  There was the usual quotation from Justice Scalia’s dissent in Windsor, the usual invocation of an amicus brief from various learned professional association’s pointing out the consensus of reputable authority on the parenting abilities of same-sex couples, and the usual observation that denying marriage to same-sex couples disadvantaged their children without in any way increasing the likelihood that different-sex couples would forgo procreating outside of marriage.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Judge Floyd.  “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.  Civil marriage is one of the cornerstones of our way of life.  It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security.  The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life.  Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

With his dissent, Judge Niemeyer became only the second federal judge to rule against a marriage equality claim since the ruling last December by U.S. District Judge Robert Shelby that the Utah marriage ban was unconstitutional.  The first, of course, was the dissenting 10th Circuit judge, Paul Joseph Kelly, also appointed by the first President Bush a quarter century ago.  Every other federal judge to rule in a marriage equality case, regardless the party of the president who appointed her or him, has ruled for marriage equality.

There are fourteen active judges serving on the 4th Circuit, nine of whom were appointed either by Bill Clinton (counting Judge Gregory) or Barack Obama.  Faced with that line-up, it seems most likely that the clerks’ attorneys would by-pass a motion for en banc review and petition the Supreme Court directly, as the state of Utah has indicated that it will do in response to the 10th Circuit’s ruling.

4th Circuit Panel Holds Oral Argument in Virginia Marriage Cases

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

A panel of three judges of the Richmond-based U.S. Court of Appeals for the 4th Circuit conducted oral arguments on May 13 in Bostic v. Schaefer, an appeal by two county clerks of a district court decision that held Virginia’s ban on same-sex marriage unconstitutional. The 4th Circuit had previously granted intervenor status on the appeal to the plaintiffs in another pending marriage case, Harris v. Rainey, so both pending federal court challenges to the Virginia ban were heard in this consolidated case.

However, since the state of Virginia has now lined up with the plaintiffs, agreeing that the ban is unconstitutional, the only parties appealing at this point are two county clerks, George E. Schaefer III and Michele McQuigg. They were represented in the arguments by David B. Oakley, a private attorney retained by Mr. Schaefer, and Austin Nimocks, an attorney from the anti-gay litigation firm “Alliance Defending Freedom,” representing Ms. McQuigg.

Former U.S. Solicitor General Ted Olson, who represented the challengers to California Proposition 8 in the case that went to the Supreme Court last year, represents the plaintiffs from the Eastern District of Virginia, Timothy Bostic and Tony London, seeking the right to marry, and Carol Schall and Mary Townley, seeking recognition of their out-of-state marriage. James Esseks, Director of the LGBT Rights Project of the ACLU, represented a class of all same-sex couples in Virginia as certified by the Western District of Virginia district court, but their class representatives are also two same-sex couples, Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd, also one married seeking recognition and the other seeking to marry.

Since the change in administration in Virginia led to a change in the state’s position, Virginia’s Solicitor General, Stuart A. Raphael, appeared on behalf of the state to urge the court to affirm the ruling by District Judge Arenda L. Wright Allen that the Virginia ban violates the 14th Amendment.

Three-judge panels in the 4th Circuit are generated by a computer program to assure random selection, and this was a particularly diverse panel. Presiding as the most senior judge was Paul V. Niemeyer, appointed to the court by President George H.W. Bush. The circuit’s first African-American judge, Roger L. Gregory, was originally appointed to the court by Bill Clinton on a recess appointment late in his administration, and then was renominated by George W. Bush as part of a deal to break the deadlock on Bush’s first circuit court appointments. Finally, Judge Henry F. Floyd was appointed to the circuit court by President Barack Obama. Judge Floyd previously served on the district court by appointment of President George W. Bush, but before his judicial service had been a Democratic state legislator. Sorting out the political backgrounds of the appointees doesn’t get one very far with this panel.

One thing was sure from the outset, however, based on the questioning and comments from the bench. As much as he cautioned counsel and spectators from making assumptions based on his questions, it seemed very clear that Judge Niemeyer was extremely resistant to the idea that the Constitution might compel the state of Virginia to allow same-sex couples to marry. His questioning showed that he viewed the Supreme Court’s decision last June in U.S. v. Windsor, the DOMA case, as being heavily influenced by federalism. Even though Justice Anthony M. Kennedy’s decision stated explicitly that the Court was deciding the case based on the 5th Amendment Due Process and Equal Protection requirements and not specifically on federalism concerns, Kennedy’s opinion devoted several pages to discussing the traditional role of the states in deciding who can marry and the traditional approach of the federal government to accepting as legal for federal purposes those marriages allowed by the states. Attorneys Oakley and Nimocks both pressed this view repeatedly: that Windsor was really a federalism case, and that it was narrowly focused on the question whether the federal government could refuse to recognize a marriage that a state had decided to recognize.

In the Windsor case, Edie Windsor and Thea Spyer had married in Canada. By the time Spyer passed away in 2009, New York appellate courts were recognizing same-sex marriages from out of state, even though New York did not pass its own marriage equality law until 2011. Windsor was suing for an estate tax refund, arguing that the Internal Revenue Service should have honored New York’s recognition of her marriage, and treat her as a surviving spouse exempt from estate taxes on her inheritance from her wife.

Nimocks hammered the point home by referring to the last paragraph of Justice Kennedy’s opinion for the Supreme Court: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

In other words, Nimocks argued, the Windsor case was specifically about the right of the states to decide who could marry and which marriages to recognize, and rejected the authority of the federal government to decree that certain marriages recognized by the state would not be recognized by the federal government. According to Nimocks, Windsor is essentially irrelevant to the question whether the 14th Amendment requires states to allow or recognize same-sex marriages.

Arguing on behalf of the plaintiff couples from Virginia, Olson, Esseks and Raphael emphasized how constitutional doctrine has developed over the course of Supreme Court decisions to the point where the district court’s conclusion in this case was, in Raphael’s words, “ineluctable.” Olson’s argument devolved into rapid back-and-forth statements with Judge Niemeyer, who seemed particularly combative in rejecting the idea that the union of a same-sex couple could be seen as “the same” as a different-sex couple. He insisted that the word “marriage” should not be used for such a couple, because same-sex couples have a “different relationship.” He conceded that the state might want to confer the rights and benefits long associated with marriage on same-sex couples, but stated that this was a decision for the state to make. Although Oakley had focused in his remarks on the significance of Virginia voters having supported the marriage amendment by a clear majority (56%, which is not all that impressive considering the margins by which such amendments were passed in some other states), Niemeyer’s comments didn’t seem to place particular weight on that. He insisted that it was not “particularly useful” to compare the “new relationship” of same-sex unions with heterosexual unions.

The other judge on the panel who gave rather clear signals of his sympathies was Judge Gregory, who particularly hammered Nimocks when he got up to make a rebuttal argument at the end of the allotted hour. Gregory continued questioning well past the flashing red light on the podium, although Judge Niemeyer good-humoredly said they could keep going as long as Gregory had questions.

Nimocks kept coming back to the argument that Virginia had an interest in ensuring that children benefited from “diverse parenting” from a father and a mother, and argued that some right to “genderless” marriage was not entitled to due process protection because it was not historically deeply rooted. Indeed, he appeared to be avoiding referring to a “right to marry,” instead saying over and over again that the right identified by the Supreme Court in the numerous decisions that Olson referred to was the “right to enter into the union of a husband and a wife.” Gregory asked Nimocks about how his concern for the welfare of children played out with the children being raised by same-sex couples, pointing out that same-sex couples can have children and raise children, and he characterized as “disingenuous” Nimock’s purported concern for the welfare of children. There seemed little doubt that Gregory was for affirmance.

So the swing vote on this panel will come from Judge Floyd, and he was relatively silent during the argument by comparison to his two colleagues. However, during Oakley’s opening argument, Floyd made a point of asking about whether the right to marry is an individual right of choice of a marital partner as opposed to a right of couples, and he also particularly focused in during Nimock’s argument about the justification for Virginia refusing to recognize same-sex marriages contracted out of state, especially when children were involved.

Esseks focused on the question of what level of scrutiny the court should use in evaluating Virginia’s ban, arguing that some form of heightened scrutiny should apply, requiring Virginia to justify its discriminatory ban. Niemeyer pushed back on this, pointing out that the Supreme Court has never specifically held that sexual orientation discrimination merits heightened scrutiny, and opining that Windsor is a “difficult opinion to read,” circling back to his opening depiction of it as a federalism case. Esseks responded with a description of the “triggers” for heightened review that the Supreme Court has responded to in various cases, and arguied that several of them applied to the Virginia marriage ban. Perhaps tipping his hand on where his thinking is going, Judge Floyd asked about the approach taken by the Boston-based U.S. Court of Appeals in its DOMA ruling, which involved “careful review” as opposed to “heightened scrutiny.” Ultimately, Esseks argued, the marriage ban would have to fall even under traditional rational basis review, because excluding same-sex couples from marriage didn’t advance any of the policy goals identified by the state.

Solicitor General Raphael provide a strong doctrinal argument, showing how the Supreme Court’s decision over the past several decades had rendered Baker v. Nelson, the Supreme Court’s 1972 dismissal of a same-sex marriage appeal, irrelevant. He also argued, as Olson had argued, that the marriage ban discriminated not only on the basis of sexual orientation but also on the basis of gender, and thus merited heightened scrutiny on that ground. “This is an explicit gender classification,” he said, and cited a prior opinion by Judge Niemeyer for the point that laws using gender classifications should be subjected to heightened scrutiny, which puts the burden on the state to prove that the classification substantially advances an important state interest. But, as Olson had argued, there is no evidence that banning same-sex marriage makes it more likely that different-sex couples will marry and have children.

Raphael also took on the federalism argument. Acknowledging that the Windsor decision devoted substantial attention to the traditional role of the states in defining marriage, he pointed out that the States remain bound by federal constitutional requirements. “The Bill of Rights trumps federalism,” he stated. Of course, this case is about the 14th Amendment, not the Bill of Rights, but his reference was, in the context of the Windsor case, to a provision of the Bill of Rights, the 5th Amendment, which places the same substantive limitations on the federal government that the 14th Amendment, adopted after the Civil War to assure full citizenship to the recently-freed slaves, places on the states.

The bottom line? As with last month’s 10th Circuit arguments in the Utah and Oklahoma cases, it appears that at least one member of the panel is predisposed to reverse the district court’s opinion, one member seems clearly disposed to affirm it, and the last is harder to read. However, as with the 10th Circuit, it appeared possible, from reading the tea leaves of questions and comments, that the “swing” voter might swing in favor of invalidating the ban.

However, as Judge Neimeyer said early on, the 4th Circuit is just a “way station” on the way to the Supreme Court. With the Supreme Court’s Utah stay and the subsequent stays placed by district courts and circuit courts on the pro-marriage equality rulings rendered thus far, it is clear that further extension of same-sex marriage rights through the courts will depend, ultimately, not on what the courts of appeals say, but what the Supreme Court says, probably sometime in 2015.

Marriage Equality Case Developments Come Hot and Heavy

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

As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.

On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.

First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.

News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.

Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.

Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.

There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.

The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.

At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!

There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.

The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.

Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.

So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.