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NCLR Seeks Supreme Court Review of Arkansas Birth Certificate Decision

Posted on: February 15th, 2017 by Art Leonard No Comments

The National Center for Lesbian Rights (NCLR) filed a petition for certiorari with the U.S. Supreme Court on February 13, seeking review of the Arkansas Supreme Court’s decision that the state was not required under Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to extend the presumption of parentage to the same-sex spouse of a birth mother for purposes of recording parentage on a birth certificate. Smith v. Pavan, 2016 WL 7156529 (Ark. December 8, 2016), petition for certiorari filed sub nom. Pavan v. Smith, No. 16-992.

The Arkansas Supreme Court’s decision, by a sharply divided court with three strong dissenting opinions, was the first ruling on this question to depart from a post-Obergefell consensus of courts in other jurisdictions that equal marriage rights for same-sex couples necessarily include the equal right to have a spouse recorded as a parent on a birth certificate, despite the lack of a “biological” tie to the child, especially in light of the common practice of automatically recognizing a birth mother’s husband for that purpose, regardless whether he is “biologically related” to the child.

The due process and equal protection issues raised by the Arkansas court’s decision are stark, raising the possibility that the Supreme Court might consider this an appropriate case for a summary reversal, similar to its decision last term to summarily reverse the Alabama Supreme Court’s refusal to accord full faith and credit to a same-sex second parent adoption approved by a Georgia family court in V.L. v. E.L., 136 S. Ct. 1017 (March 7, 2016).  In V.L. the Court moved quickly to reverse the state supreme court ruling based on the certiorari filings, seeing no need for full briefing and hearing on the merits.  That ruling was announced several weeks after the death of Justice Scalia by the eight-member Court, and brought no dissent from any justices, three of whom had dissented in Obergefell.  They implicitly agreed that with Obergefell as a precedent, there was no justification for recognizing any exception to the general rule that adoption decrees are to be recognized when the court granting the adoption clearly had jurisdiction over the parties and the subject matter of the adoption petition.  They rejected the Alabama Supreme Court’s reliance on its own interpretation of the Georgia adoption statute as withholding “jurisdiction” from the family court to grant such an adoption.

NCLR petitioned on behalf of two married same-sex couples – Marisa and Terrah Pavan and Leigh and Jana Jacobs. Each couple had married out of state and then, living in Arkansas, had a child conceived through donor insemination.  In both cases, the mothers completed the necessary paper work to get a birth certificate when their children were born.  In both cases, the state health department issued a certificate naming only the birth mother and leaving the space for “father” blank on the birth certificate rather than naming the other mother.  The state insisted that under its statute the automatic listing was limited to a husband of the birth mother.

The women filed suit against the director of the state health department, Dr. Nathaniel Smith, seeking to compel issuance of appropriate birth certificates, together with another couple who were not married when they had their child but who subsequently married after the Obergefell decision and sought an amended birth certificate.  That other couple is no longer in the case, having gone through an adoption proceeding and obtained a new birth certificate naming both mothers.  The Arkansas state trial court construed Obergefell and its own marriage equality decision, Wright v. Smith, to require according equal recognition to same-sex marriages for this purpose, and ordered the state to issue amended birth certificates accordingly.  The trial court refused to stay its decision pending appeal, so the certificates were issued.

The Arkansas Supreme Court reversed, even though the state conceded at oral argument that in light of its statute requiring that a husband be listed on a birth certificate regardless whether he was biologically related to the child the state’s position was inconsistent with its own practice. Indeed, the state conceded at oral argument that it had no rational basis for treating same-sex and different-sex spouses differently for this purpose.  However, the state insisted that it was refusing to list same-sex spouses consistent with its gender-specific statute because the birth certificate was necessary to establish the identity of biological parents for public health reasons.  This was a patently absurd argument in light of the various circumstances under Arkansas law where non-biological fathers are listed on birth certificates.

The dissenting judges pointed in various ways to the Obergefell decision, which actually listed birth certificates as one of the issues related to marital rights that helped explain why the right to marry was a fundamental right.  Furthermore, as the certiorari petition points out in detail, the very question raised by this case was specifically part of the Obergefell case, as the underlying state cases that were consolidated into the appeal argued at the 6th Circuit and the Supreme Court included plaintiffs who were married lesbian couples seeking to have appropriate birth certificates for their children.  In those cases, the certificates had been denied by states that refused to recognize the validity of the mothers’ out-of-state marriages.  Thus, the Supreme Court’s reference to birth certificates was part of the issue before the Court, not merely illustrative of the reasons why the Court deemed the right to marry fundamental, and in holding that states were required to recognize same-sex marriages validly performed in other states, the Court was incidentally addressing the refusal of states in the cases before the Court to recognize petitioners’ marriages for purposes of recording the names of parents on birth certificates!

Thus, the Arkansas Supreme Court majority was clearly wrong in asserting that the Obergefell decision did not address this issue and pertained only to the question whether same-sex couples had a right to marry.  Given biological facts, lesbian couples having children through donor insemination are exactly similarly situated with different-sex couples having children through donor insemination, as in both cases the spouse of the birth mother is not the biological parent of the child.  By the logic of Obergefell, denial of such recognition and marital rights offends both due process and equal protection guarantees of the 14th Amendment.  And, as the Petition points out, such denial relegates same-sex marriages to a “second tier” treatment, which was condemned by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), when it ruled that the federal government was required to extend equal recognition to same-sex marriages validly contracted under state laws.  In both cases, the Supreme Court rejected the argument that the inability of same-sex lesbian couples to conceive children without a sperm donor provided a rational basis to deny recognition to their marriages or treat them differently from the marriages of heterosexual couples.

NCLR attorneys on the Petition including Legal Director Shannon Minter and staff attorneys Christopher Stoll and Amy Whelan. Arkansas attorney Cheryl Maples is listed as local counsel.  Cooperating Attorneys from Ropes & Gray LLP (Washington and Boston offices) on the Petition include Molly Gachignard, Christopher Thomas Brown, Justin Florence, Joshua Goldstein and Daniel Swartz, with prominent R&G partner Douglas Hallward-Driemeier as Counsel of Record for the case.  Hallward-Driemeier successfully argued the marriage recognition issue before the U.S. Supreme Court in Obergefell v. Hodges.  GLAD attorney Mary Bonauto from Boston argued the right to marry issue in Obergefell.

Arkansas Supreme Court Rejects Challenge to Discriminatory Birth Certificate Statutes

Posted on: December 12th, 2016 by Art Leonard No Comments

Although the U.S. Supreme Court issued a sweeping ruling for marriage equality in Obergefell v. Hodges on June 26, 2015, pockets of resistance remain in the states. The latest manifestation of this phenomenon comes from Arkansas, where the state’s Supreme Court ruled on December 8 by a 4-3 vote that same-sex couples do not enjoy the same constitutional rights as opposite sex couples when it comes to listing parents on birth certificates.  In Smith v. Pavan, 2016 Ark. 437, the majority of the court rejected a constitutional challenge to two Arkansas statutes under which wives of birth mothers are denied equal treatment with husbands of birth mothers in the matter of being listed as parents on birth certificates.  Three members of the court disagreed with the majority to varying extents in separate opinions.

 

The case was brought by three lesbian couples. Two of the couples, Marisa and Terrah Pavan and Leigh and Jana Jacobs, were married out-of-state and then had a child born in their residential state of Arkansas.  The third couple, Courtney Kassel and Kelly Scott, had a child in Arkansas and married shortly thereafter.  In all three cases, the Department of Health, headed by named-defendant Dr. Nathaniel Smith, refused to list the spouse of the birth mother on the birth certificate, relying on gender-specific Arkansas statutes that provide for listing husbands but not wives of birth mothers.

 

The women, represented by attorney Cheryl Maples with amicus assistance from the ACLU of Arkansas and the national ACLU LGBT Rights Project, filed suit against Smith. Pulaski County Circuit Judge Timothy Davis Fox accepted their argument that Dr. Smith, who was also a named defendant in Wright v. Smith, the Arkansas state court marriage equality case, was bound by the decision in that earlier case, which had struck down as unconstitutional not only the state’s ban on same-sex marriage but also “all other state and local laws and regulations identified in Plaintiff’s complaint or otherwise in existence to the extent they do not recognize same-sex marriages validly contracted outside Arkansas, prohibit otherwise qualified same-sex couples from marrying in Arkansas or deny same-sex married couples the rights, recognition and benefits associated with marriage in the State of Arkansas.”

 

The case appeared clear to Judge Fox. The final court order issued in Wright v. Smith required that Arkansas treat same-sex marriages as equal to different-sex marriages in all respects under state law, and Smith was precluded from trying to re-litigate that issue in this case.  Smith’s appeal from the trial court’s ruling in Wright v. Smith was pending when the U.S. Supreme Court announced its ruling in Obergefell, after which the Arkansas Supreme Court dismissed that appeal as moot, ending a stay that it had granted on the trial court’s Order.

 

Furthermore, Judge Fox found support for his decision in favor of the women in the Obergefell opinion itself, noting that Justice Anthony Kennedy had mentioned “certificates of birth and death” as one of the benefits of same-sex marriage. Kennedy had written:

 

“The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. . . . The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

 

To Judge Fox, this meant that married same-sex couples are entitled to the same rights of marriage as different sex couples, including the same spousal rights regarding birth certificates.

 

But a majority of the Arkansas Supreme Court insisted that the Obergefell decision, and the state court Wright decision, had not decided this issue. An opinion by Justice Josephine Linker Hart for four members of the seven-member court insisted that the only questions decided by these prior cases were whether same-sex couples could marry or have their out-of-state marriages recognized.   Viewed this way, the Wright v. Smith decision would not preclude Smith from applying Arkansas statutes to refuse to list the same-sex spouses on birth certificates unless the court were to decide independently that doing so violated the constitutional rights of the spouses.  This the court was unwilling to do.

 

Since Judge Fox had ordered Smith to issue new birth certificates listing both mothers, and that order had not been stayed, the Supreme Court decided that the case should be treated as a facial challenge to the constitutionality of the statutes. Because the plaintiffs had actually received the birth certificates they sought, any “as applied” challenge was deemed to be moot.

 

One of the challenged statutes provides that when a child is born to a married woman, her husband will be listed on the birth certificate as the child’s father unless a court has determined either that another man is the child’s biological father, or the mother, the biological father, and her husband have executed affidavits establishing that the husband is not the biological father. The other challenged statute provides that when a child is born to an unmarried woman, only she will be listed on the original birth certificate, but a new birth certificate can be issued listing the biological father if the child is “legitimated” by the biological parents subsequently marrying, or a court determines who is the biological fathers.

 

The court insisted that both statutes are clearly intended to record historical facts about the biological parents of a child, and that the state has a legitimate reason to want the original birth certificate to correctly list these historical facts. “In our analysis of the statutes presented above,” wrote Justice Hart, “it is the nexus of the biological mother and the biological father of the child that is to be truthfully recorded on the child’s birth certificate.

 

Quoting from an affidavit submitted by Melinda Allen, the state’s Vital Records Registrar, the court adopted her contention that the recordation of biological parents was “critical” to the department’s “identification of public health trends,” and she asserted that “it can be critical to an individual’s identification of personal health issues and genetic conditions.” She noted that in adoption and surrogacy situations, the biological parents are listed on original birth certificates, which are then “sealed” when new certificates are issued showing adoptive or intended parents, since the state deems it essential that a permanent record of biological parentage be preserved.

 

Justice Hart said that Judge Fox had “conflated distinct categories of marriage, parental rights, and vital records,” and that the issue in this case was not who can be a parent but rather who must be listed on a birth certificate. “On the record presented,” she wrote, “we cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.”

 

As to an equal protection challenge, the court found that the same-sex spouse is not similarly situated to the husband, and “it does not violate equal protection to acknowledge basic biological truths”. In this case, the majority found, “the challenged classification serves important governmental objectives” – the factual record of biological parentage for the reasons asserted by Melinda Allen in her affidavit.

 

The court pointed out that there was another statute that might be invoked in this situation, governing intended fathers in cases involving “artificial insemination.” In such cases, if the mother’s husband consented in writing to her insemination with donated sperm, the child would be “deemed the legitimate natural child of the woman and the woman’s husband” and he would be listed on the birth certificate.

 

At oral argument in this case, counsel for Dr. Smith conceded that this statute violated equal protection, since in this case both the husband and the same-sex spouse of the birth mother were not biologically related to the child, and thus similarly situated.   Smith’s attorney argued that if a case was brought under that statute, the court “could resolve many of the concerns raised by the [women] by amending the wording of the statute,” but Justice Hart rejected this suggestion, insisting that “this court is not a legislative body and it cannot change the wording of the statute.”  Furthermore, since the plaintiffs did not invoke the artificial insemination statute in this case – possibly because they did not have written authorization for the insemination procedure as required by the statute – the trial court did not rule on the statute’s constitutionality, so the issue of its constitutionality was not properly before the court.

 

In a concluding paragraph, the court “admonished” Judge Fox for having made a public statement that if the Arkansas Supreme Court granted a stay of his order in this case, it would be depriving people of their constitutional rights, and that the court had deprived people of their constitutional rights in a separate matter. “A remark made to gain the attention of the press and to create public clamor undermines ‘public confidence in the independence, integrity, and impartiality,’ not only of this court, but also of the entire judiciary,” wrote Hart, and Fox was formally “admonished” for “his inappropriate comments made while performing the duties of his judicial office.”

 

Chief Justice Howard Brill, in a separate opinion, agreed with the majority that Obergefell was a narrow holding that same-sex couples have a right to marry, and thus did not directly settle the question of birth certificates. However, he wrote, “The question here is the broader impact of that ruling as it affects birth certificates,” and, he wrote, “The logical extension of Obergefell, mandated by the Due Process Clause and the Equal Protection Clause, is that a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple,” because “the right to a birth certificate is a corollary to the right to a marriage license.”  He prefaced his opinion with a quote from the lyrics of Bob Dylan’s song “The Times They Are A-Changin’,” and concluded by arguing that it was up to the legislature to amend the existing laws to come into compliance with Obergefell.  “The times they are a-changin’,” he wrote.  “All three branches of the government must change accordingly.  It is time to heed the call.”

 

In her separate opinion, Justice Rhonda K. Wood joined the court in reversing the case on the ground of “prudential-mootness” because the plaintiff couples had received their revised birth certificates on the order of Judge Fox. At the same time, she wrote, “I encourage the legislature to address the relevant birth certificate statutes in the upcoming session to avoid a plethora of litigation and confusion for the courts.”  She pointed out that this litigation had actually stimulated the Health Department to modify its procedures, noting that Allen’s affidavit stated that the department “will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact,” although the parties disputed at oral argument about how consistently this new policy was being implemented.  She also noted Smith’s concession at the oral argument that the artificial insemination statute, as written, violated equal protection, and that if the department administers it appropriately, “any legal challenge in this regard would be moot.”  Judge Wood emphasized the fluidity of the situation on the ground and the likelihood that things had changed since Allen made her affidavit.  This, to her, would justify the court as treating the appeal as moot and sending the case back to the circuit court for a new hearing to determine the current facts, which might make it unnecessary to issue a constitutional ruling.  However, departing from the majority, she wrote that in her view, “states cannot constitutionally deny same-sex couples the benefits to marital status, which include equal access to birth certificates,” and suggested that the legislature should amend the statute to comply with this conclusion.

 

Justice Paul Danielson dissented totally from the majority opinion, stating that he would affirm Judge Fox’s ruling, agreeing that Smith and Obergefell settled the matter and the statutes as written were clearly unconstitutional.

 

Justices Wood and Danielson dissented from the majority’s admonishment of Judge Fox. Justice Wood merely stated that she had not “participated” in the majority’s decision to admonish the judge. Justice Danielson wrote at length, arguing that the admonishment violated Judge Fox’s constitutional free speech rights, quoting a U.S. Supreme Court decision stating that “the operations of the courts and the judicial conduct of judges [are] matters of the utmost public concern.” The Supreme Court “has cautioned against repressing speech under the guise of promoting public confidence in the integrity of the judiciary,” wrote Danielson.  “In short,” he concluded, “the fact that members of this court have personally taken offense to the circuit judge’s remarks is not a sufficient basis for suggesting that those remarks violate our disciplinary rules.”

Federal Court Rejects Transgender Citizen’s Complaints of Unconstitutional Treatment by NYPD Officers

Posted on: October 1st, 2016 by Art Leonard No Comments

In a decision notably lacking in empathy for transgender people and the slights and humiliations they suffer on a regular basis, U.S. District Judge Gregory H. Woods granted New York City’s motion to dismiss a complaint by Marlow White, self-identified as a man of transgender experience, that his 14th Amendment rights were violated by NYPD officers and the City when the police failed to respond to the continued verbal harassment of White by Napoleon Monroe, a man who frequented the neighborhood where White lived and made various threats against him as well as subjecting him to verbal harassment.  White v. City of New York, 2016 WL 4750180 (S.D.N.Y., Sept. 12, 2016).

According to the court’s summary of the factual allegations, the police officers who were summoned by White when he was continually accosted by Monroe were blatantly transphobic, treating him as somebody unworthy of respect and suggesting that until somebody was seriously injured, they would not lift a finger to help.

Among other things, Judge Woods’ opinion concludes that in the absence of a 2nd Circuit ruling holding that gender identity is a suspect classification (or, as the judge phrases it, that discrimination against transgender people is a form of sex discrimination and thus subject to heightened scrutiny review, as the 11th but not the 2nd Circuit has held), the refusal of police officers to take White’s complaints or do anything to stop Monroe’s harassment of him is subject only to rational basis review.  Under that standard, Woods found that the discretionary decision by police officers not to arrest somebody who had yet to commit a violent crime against the complainant was not so arbitrary as to lose them the shield of qualified immunity.

Furthermore, the judge found that under Due Process jurisprudence the police officers had no obligation to prevent one citizen from subjecting another to verbal harassment and threats, so long as the police were not enabling or encouraging actual harm to the complainant.

The judge found that White’s allegations of past incidents involving the police and their dealings with transgender people were not sufficient to document some sort of official NYPD policy of disparate treatment of transgender people that would be necessary to impose municipal liability, or of a failure to properly train the police about how to interact with transgender people. One suspects that transgender rights organizations could supply a panoply of evidence about police disrespect for the human rights and dignity of transgender people, but unfortunately the evidence presented in response to this dismissal motion seems to have been minimal.

“White’s conclusory allegations regarding the City’s alleged failure to train its police officers fail to state a claim,” wrote the judge.  “He states that ‘adequate training regarding issues peculiar to persons of trans experience will make it substantially less likely that the rights of persons of trans experience will be violated.  But the facts in the Amended Complaint do not plead a pattern of similar constitutional violations, such that the City was on notice that different, or additional, training was needed.”  Quoting a Supreme Court ruling, Connick v. Thompson, 563 U.S. 51, 62 (2011), “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.”  Judge Woods found that White “has failed to establish a history of NYPD officers mishandling situations involving persons of trans experience such that the City was deliberately indifferent by failing to provide the unspecified training that he desires.  Accordingly, because White has failed to allege either a widespread practice or a failure-to-train claim, his Monell claim is dismissed without prejudice.”

White is represented by Donald Robert Dunn, Jr., of the Bronx.  The dismissal without prejudice suggests that he could come back with a new complaint on the municipal liability issue if he can put together a more complete factual record of the NYPD’s failure to provide non-discriminatory law enforcement protection to trans citizens.

But we suspect that if top management officials in the NYPD, the Corporation Counsel’s office and the De Blasio Administration took the time to read Judge Woods’ summary of White’s factual allegations, they might quickly conclude that it would be prudent to provide appropriate training at the precinct level to NYPD officers on how to deal sensitively with such issues, as a matter of good public policy if not constitutional obligation.  After all, the articulated goal of the city administration is to improve the quality of life of NYC residents by cultivating a collaborative relationship between the citizenry and the law enforcement community.  And, it is possible that the 2nd Circuit will eventually decide that gender identity discrimination is a form of “sex discrimination,” as the 11th Circuit, the EEOC and other federal agencies have concluded, and the activities of the NYPD in this regard will be subjected to heightened scrutiny in appropriate cases.

Federal Judge in Puerto Rico Claims Obergefell v. Hodges Does Not Apply There

Posted on: March 9th, 2016 by Art Leonard No Comments

In an astonishing departure from established precedents, U.S. District Judge Juan M. Perez-Gimenez of the U.S. District Court in Puerto Rico, who had dismissed a marriage equality lawsuit on October 21, 2014, has issued a new decision on March 8, 2016, Vidal v. Garcia-Padilla, 2016 U.S. Dist. LEXIS 29651, asserting that the U.S. Supreme Court’s ruling on June 26, 2015 in Obergefell v. Hodges, 135 S. Ct. 2584, that the 14th Amendment of the U.S. Constitution protects the right of same-sex couples to marry in the United States, does not necessarily apply to Puerto Rico.

Lambda Legal represents the plaintiffs in that marriage equality case.  Lambda appealed the court’s 2014 ruling to the 1st Circuit Court of Appeals, which has jurisdiction over federal cases arising in Puerto Rico.  That court held up ruling on the appeal until after the Supreme Court ruled in Obergefell.  On July 8, 2015, the 1st Circuit vacated Judge Perez-Gimenez’s decision and sent the case back to the district court “for further consideration in light of Obergefell v. Hodges.”  In its brief order, the 1st Circuit also stated that it “agrees with the parties’ joint position that the ban [on same-sex marriage] is unconstitutional.”  A week later, the parties filed a “Joint Motion for Entry of Judgment” with the district court, asking for a declaration that Puerto Rico’s statutory ban on same-sex marriage is unconstitutional, and an injunction ordering the commonwealth government not to enforce the ban.

In a  footnote to his opinion, Judge Perez-Gimenez observed that Governor Alejandro Garcia Padilla had signed an Executive Order “just hours after the Supreme Court’s decision in Obergefell” directing Puerto Rico government officials to comply with that ruling, an action that provoked some members of the Puerto Rico legislature to file a lawsuit in the local courts challenging his action.  That case has apparently gone nowhere, and the government of Puerto Rico has been issuing marriage licenses to same-sex couples and recognizing their marriages performed elsewhere.

Perez-Gimenez explained that in Obergefell the Supreme Court invoked the 14th Amendment’s Due Process and Equal Protection Clauses to hold that the same-sex marriage bans in the four states within the jurisdiction of the 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky and Tennessee) were unconstitutional because they deprived same-sex couples of a fundamental right to marry, thus abridging their liberty and denying equal protection of the laws.  He also noted that some lower federal courts have acknowledged that Obergefell v. Hodges was technically ruling on the state constitutions and laws of those four states, and thus had not automatically mooted cases pending in the 5th, 8th and 11th Circuit Courts of Appeals involving same-sex marriage bans in other states, although those courts quickly issued rulings applying Obergefell as a precedent to the marriage equality cases arising from states under their jurisdiction.

More significantly, Judge Perez-Gimenez claimed that because Puerto Rico is neither a “state” nor an “incorporated territory,” but rather an “unincorporated territory” with extensive self-government rights under a federal statute making it a “commonwealth,” there is some question whether the Supreme Court’s ruling in Obergefell is a binding precedent in Puerto Rico.  He pointed out, that the 14th Amendment provides expressly that “no state” may deprive a person of due process or equal protection, and that because Puerto Rico is not a state, the 14th Amendment’s applicability is not clear.  He cited a variety of older Supreme Court decisions making the general point that all provisions of the U.S. Constitution do not necessarily apply to Puerto Rico in all circumstances.

What he neglected to cite, however, was a case pointed out by Joshua Block, an ACLU attorney who spoke with Chris Geidner of BuzzFeed.com shortly after Perez-Gimenez issue his ruling: a 1976 Supreme Court decision, Examining Board of Engineers v. Flores de Otero, 426 U.S. 572 (1976), in which the Court stated, in an opinion by Justice Harry Blackmun, “The Court’s decisions respecting the rights of the inhabitants of Puerto Rico have been neither unambiguous nor exactly uniform.  The nature of this country’s relationship to Puerto Rico was vigorously debated within the Court as well as within the Congress.  It is clear now, however, that the protections accorded either by the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to residents of Puerto Rico.”

In that case, the Court was considering the constitutionality of a local Puerto Rican statute imposing a citizenship requirement before somebody could be licensed to practice as a civil engineer.  The Court held that the requirement violated equal protection, based on its precedents interpreting both the 5th and 14th Amendments, under which the Court imposes “strict scrutiny” on federal or state laws that discriminate based on alienage.  That is, the government must have a compelling justification before it can deny a right or benefit to somebody because they are not a U.S. citizen.  In a prior case, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the Court had specifically held that the due process requirements of the 5th and 14th Amendment also applied to Puerto Rico, limiting the right of the government to restrict the rights of property-owners.

Thus, Judge Perez-Gimenez’s insistence that the Supreme Court’s holding concerning the rights of same-sex couples under the 14th Amendment does not apply to persons present in Puerto Rico appears contrary to a Supreme Court precedent.

Nonetheless, Perez-Gimenez, without acknowledging these Supreme Court decisions, held that “the right to same-sex marriage in Puerto Rico requires: (a) further judicial expression by the U.S. Supreme Court; or (b) the Supreme Court of Puerto Rico; (c) incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause; or (d) by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [the local law banning same-sex marriage].”

Had there been any doubt that the Obergefell ruling applies to Puerto Rico, the 1st Circuit would have expressed that doubt as part of its consideration of the appeal from Perez-Gimenez’s prior ruling in the case.  Instead, that court expressly stated its agreement with the joint position stated by the parties in that case that the Puerto Rico ban was unconstitutional.  Lambda Legal will promptly appeal this ruling to the 1st Circuit.  In the meantime, presumably the governor’s executive order remains in effect.

Federal Judge Refuses to Dismiss Michigan Transgender ID Case

Posted on: November 17th, 2015 by Art Leonard No Comments

A federal judge has refused to dismiss a claim by six transgender Michiganders that a state policy governing changes of sex designation on driver’s licenses and personal identification cards violates their constitutional privacy rights.  The November 16 ruling in Love v. Johnson, 2015 U.S. Dist. LEXIS 154338, 2015 WL 7180471 (E.D. Mich), by Senior U.S. District Judge Nancy G. Edmunds, finds that transgender people have a fundamental right of privacy under the Due Process Clause of the 14th Amendment regarding their gender identity, which right appears to be heavily burdened by the state policy.

In 2011, Michigan Secretary of State Ruth Johnson adopted the following policy:  “An applicant may request to change the sex on their driver license or personal ID card.  The individual must provide a certified birth certificate showing the sex of the applicant.  A birth certificate is the only document accepted as proof to change an individual’s sex.  A U.S. passport cannot be accepted as proof of a sex change.”

According to the plaintiffs, this policy makes it very difficult for many transgender people to obtain such a change.  For one thing, people born in a state that refuses to issue replacement birth certificates for transgender individuals are stuck; they can never get an appropriate state government ID in Michigan.  (Such an ID is required, among other things, for voting.)  For another, people born in states that require gender reassignment surgery as a prerequisite may be stuck as well, since such surgery may not be available to them for financial or other reasons.  Indeed, that is the case in Michigan, which requires people to undergo sex-reassignment surgery to get a new birth certificate.

By contrast, the State Department does not require sex-reassignment surgery as a prerequisite to get an appropriate passport.  The Department will accept a doctor’s letter certifying that the individual “has had appropriate clinical treatment for gender transition,” without any specification of particular treatment.  Many  other states now have similarly permissive requirements to issue driver licenses or non-driver ID cards.

The consequences of carrying a driver’s license or state ID that does not correctly identify the bearer’s gender are many.  Encounters with police officers and security officers are only the most obvious.  In their affidavits opposing the state’s dismissal motion, the plaintiffs recount a wide range of circumstances in which they have encountered demeaning or antagonistic responses when complying with requests to show ID, including when voting or attempting to cash a check.  Every such occasion is an “outing” with respect to information they prefer to keep confidential, and they cite the incidence of violence against transgender people as a looming threat when their status is thus revealed involuntarily.

Judge Edmunds rejected the state’s argument that plaintiffs had not presented a claim of constitutional dimensions.  She found a wide range of precedents, including decisions from the 6th Circuit that would be controlling in a federal case in Michigan, recognizing privacy interests in medical information and sexually-related information.  In addition, she relied on a decision by the 2nd Circuit in a case involving a transgender prison inmate, Powell v. Schriver, where the court recognized in 1999 that the “hostility and intolerance” against transgender people bolstered its conclusion that “the Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism.”  That court based its ruling on the “bedrock principle” that “there exists in the Constitution a right to privacy protecting the individual interest in avoiding disclosure of personal matters,” and a recognition that a transgender person “potentially exposes herself to discrimination and intolerance” when forced to reveal this information.

Edmunds, appropriating language from the prior 6th Circuit case, found “no reason to doubt that where disclosure of this highly intimate information may fall into the hands of persons harboring such negative feelings, the Policy creates a very real threat to Plaintiffs’ personal security and bodily integrity.”

Since a fundamental right is involved, Edmunds observed that the state could only win this case if it could show a compelling interest, and that the policy was “narrowly drawn to further that interest.,” which requires that it be the least restrictive way to achieve the state’s goal.  In this case, she wrote, the state “vaguely identifies two purported interests — albeit not in the context of a fundamental right — in support of the Policy: (1) ‘maintaining accurate state identification documents’ to ‘promote effective law enforcement’ and, (2) ensuring ‘that the information on the license is consistent with other state records describing the individual.”

The judge found that the challenged policy “bears little, if any, connection to Defendant’s purported interests, and even assuming it did, there is no question that requiring an amended birth certificate to change sex on one’s license is far from the least restrictive means of accomplishing the state’s goal.  Indeed, as Plaintiffs point out, ‘because of the Policy, the sex listed on their licenses fails to match their appearance and the sex associated with their names.’  In this way, the Policy undermines Defendant’s interest in accurately identifying Plaintiffs to ‘promote law enforcement.'”  She pointed to a 2012 decision by an Alaska trial court criticizing a similar policy adopted in that state, which observed that the policy produces licenses that are inaccurate for identification purposes, causing inconvenience and worse in the everyday lives of transgender people.

As to the rejection of a passport as documentation of gender, Judge Edmunds wrote, “Defendant fails to articulate how this two-tiered system promotes the state’s purported interest in ensuring ‘that the information on the license is consistent with other state records describing the individual.'”  Why should a person be required to carry a driver’s license that contradicts her passport as to her gender?

The plaintiffs alleged that at least 25 states allow changes of sex designation on driver licenses without proof of sex reassignment surgery.  “The Court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system,” wrote Edmunds.  Thus, at this point in the case, the court was unwilling to conclude as a matter of law that the policy “narrowly serves the state’s interest in maintaining ‘accurate’ identification documents or promoting effective law enforcement.”

The plaintiffs had made other constitutional claims, but Judge Edmunds decided that it was unnecessary to rule on them at this point.  So long as she had identified one claim on which the plaintiffs were entitled to maintain their legal challenge to the policy, the state’s motion to dismiss should be denied.  “Should future developments require the Court to rule on the viability of Plaintiffs’ remaining claims,” she wrote, “Defendant may seek leave to renew her motion at that time.”

Judge Edmunds’ refusal to dismiss the case puts the plaintiffs in a strong position to negotiate a change to the policy.  If negotiations fail, they can probably count on winning this case through a motion for summary judgment unless the state can come up with something better than its pathetic arguments in support of its motion to dismiss.

The plaintiffs are Ermani Love, Tina Seitz, Codie Stone, E.B., A.M., and K.S.  Their attorneys include Daniel S. Korobkin, Michael J. Steinberg and Jay Kaplan of the ACLU Foundation of Michigan in Detroit, John A. Knight of the ACLU Foundation in Chicago, Illinois, and cooperating attorneys Jacki Lynn Anderson, Michael Frederick Derksen and Steven R. Gilford of the Proskauer Rose law firm’s Chicago office.

Michigan may be the next state to defend its ban on same-sex marriage in a federal court trial.

Posted on: July 2nd, 2013 by Art Leonard No Comments

Senior U.S. District Judge Bernard A. Friedman, appointed to the court by President Ronald Reagan in 1988, ruled on July 1 that a Michigan lesbian couple is entitled to a trial of their claim that the state adoption law, forbidding same-sex couples to jointly adopt children, and the Michigan Marriage Amendment (MMA), forbidding same-sex marriages, violate their rights under the 14th Amendment.  Rejecting the state’s motion to dismiss the case, Judge Friedman cited the Supreme Court’s June 26 decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor, to support the “plausibility” of the couple’s constitutional claim.

April DeBoer and Jayne Rowse, the plaintiffs, are both employed as nurses and have lived together for six years.  Between them, they have adopted three children as single parents.  They would like to jointly adopt the three children to solidify their family relationship, but Michigan’s adoption law forbids it because they are not married, and the Michigan Marriage Amendment denies them the right to marry.

They filed suit in federal court, claiming that the state’s prohibition on joint adoptions by same-sex couples violates their equal protection rights.  In pre-trial arguments, Judge Friedman suggested that their challenge would not be complete if it was confined to the adoption law, and they amended their complaint at his suggestion to add a claim that the state’s ban on same-sex marriage violates their rights as well. 

The state moved to dismiss, arguing that the plaintiffs cannot show that the Michigan Marriage Amendment lacks a rational relationship to a legitimate state interest, and that there is no fundamental right under the constitution for same-sex couples to marry.

Friedman denied the motion, holding that the claims cannot be decided as a matter of law at this point, largely because of the Supreme Court’s DOMA decision.

On the one hand, he observed, there is language in that decision that defendants will cite, about the state’s “historic and essential authority to define the marital relation” (quoting from Justice Kennedy’s opinion).  “They will couch the popular referendum that resulted in the passage of the MMA as ‘a proper exercise of [the state’s] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended,” he wrote, again quoting from Kennedy’s opinion.

On the other hand, of course, he asserted that “plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas, and now Windsor.  And why shouldn’t they?  The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’  Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well.  This is exactly the type of harm plaintiffs seek to remedy in this case.”

The court’s role in deciding a motion to dismiss is to decide whether the plaintiffs have asserted a plausible legal claim, assuming their factual allegations to be true.  “Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility,” Friedman concluded as to the equal protection claim.  He commented that the plaintiffs’ due process claim “will likewise move forward because it states a plausible claim for relief,” citing Judge Vaughn Walker’s original Proposition 8 decision, which now stands as an unappealed district court opinion.

Friedman ordered that counsel meet with him on July 10 to set a trial date.  From the tone of his opinion, he is eager to decide this case on the merits, and seems well disposed towards the plaintiffs’ claims.

Supreme Court Strikes Section 3 of DOMA, Dismisses Proposition 8 Appeal

Posted on: June 28th, 2013 by Art Leonard 1 Comment

[Second draft of history.  My prior posting on this week’s ruling in the DOMA and Prop 8 cases was written shortly after the opinion was release, and was intended as a basis for my journalistic comment to be published in Gay City News that day.  Herewith my more extensive draft, reflecting further thought and containing many more quotes from the Court’s opinion, written two days later.  And amended after a few hours to reflect some startling new developments today.]

On June 26, the last decision day of its October 2012 Term, the United States Supreme Court issued a pair of 5-4 rulings, holding unconstitutional Section 3 of the Defense of Marriage Act (DOMA) and thus requiring the federal government to treat lawfully-contracted same-sex marriages as equal to different-sex marriages for purposes of federal law, and rejecting an appeal by initiative proponents of a federal trial court decision invalidating California Proposition 8 of 2008, setting the stage for the resumption of same-sex marriages in that state.  United States v. Windsor, 2013 WL 3196928; Hollingsworth v. Perry, 2013 WL 3196927. 

Justice Anthony M. Kennedy, Jr., writing for the Court in Windsor, found that Section 3 of DOMA, which required the federal government to deny legal recognition to same-sex marriages validly contracted by the law of the jurisdiction where they took place, violates the 5th Amendment’s guarantee of due process and equal protection.  Chief Justice John R. Roberts, Jr., writing for the Court in Hollingsworth, found that the initiative proponents lacked standing to appeal the trial court’s decision, leaving both the Supreme Court and the 9th Circuit without jurisdiction to rule on the merits of the case.  The Court vacated the 9th Circuit’s decision (which had affirmed the trial court’s broad due process and equality ruling on a narrower equal protection theory), and ordered that the appeal be dismissed, which would logically result in terminating the 9th Circuit’s stay of the trial court’s Order, which had enjoined state officials from enforcing the constitutional amendment enacted by Prop 8. At the request of California Attorney General Kamala Harris, the 9th Circuit panel dissolved the stay on Friday, and the plaintiff couples promptly got married; in San Francisco, Attorney General Harris officiated for the wedding of Kris Perry and Sandy Stier at City Hall; in Los Angeles, outgoing Mayor Antonio R. Villaraigosa officiated at the wedding of Paul Katami and Jeffrey Zarrillo. 

The line-up of justices in Windsor was predictable, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, all appointees of Democratic presidents and sometimes referred to as the Court’s “liberal wing,” signing Kennedy’s opinion.  There were three dissenting opinions.  Chief Justice Roberts, writing for himself; Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, with partial joinder by the Chief; and Justice Samuel Alito, writing for himself with partial joinder by Justice Thomas.  Roberts, Scalia and Thomas agreed on the proposition that the case was not properly before the Court, because the Petitioner, the United States, did not disagree with the substance of the 2nd Circuit’s opinion holding Section 3 unconstitutional.  Thus, in their view, the case did not present the Court with a real “controversy” to resolve between the government and Plaintiff-Respondent Edith Schlain (“Edie”) Windsor, as the government was not asking the Court to do other than affirm the decision below.  Evidently none of these three justices considered that the presence in the case of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which was allowed to intervene to defend Section 3, would cure this jurisdictional fault.  Justice Alito, by contrast, opined that BLAG’s participation as an interested party cured the jurisdictional defect, arguing that BLAG as representative of the House of Representatives (pursuant to a resolution adopted by the House in January 2013, a month after the Court granted the petition for certiorari in this case), had a real interest in the resolution of the case, since the lower court’s opinion had invalidated legislation enacted by the House, thus in effect constricting its authority to pass legislation.  Although Roberts, Scalia and Thomas believed the case was not properly before the Court, this did not stop them from pronouncing on the merits, all agreeing that Section 3 was constitutional.  Justice Alito also opined that Section 3 was constitutional, but on somewhat different grounds.  The Chief Justice signed on to the portion of Scalia’s dissent addressing jurisdiction, and Thomas, who signed on to Scalia’s entire dissent, also signed on to the portion of Alito’s dissent addressing the merits. 

The line-up of justices in Hollingsworth was less predictable, and initially puzzling to many.  The Chief Justice’s opinion was joined by Justices Scalia, Ginsburg, Breyer and Kagan, while Justice Kennedy’s dissent was joined by Justices Thomas, Alito and Sotomayor.  Roberts’ opinion for the Court insisted that in order to have Article III standing, an appellant must show that the lower court’s ruling imposes a personal and tangible harm on him, rejecting the alternative argument that the initiative proponents were suing in a representative capacity on behalf of the state of California.  There were no concurring opinions.  Justice Kennedy argued in dissent that the California Supreme Court’s decision, entitled to binding effect as an authoritative construction of California law, provided a basis for finding that the initiative proponents had standing to sue on behalf of the state as crucial to the “integrity” of the state’s initiative process.  Neither Roberts nor Kennedy said anything in their opinions about the merits of the case.  Indeed, the only member of the Court to give even an oblique discussion to the Prop 8 merits was Justice Alito, in his dissent in Windsor, in which he devoted a lengthy textual footnote to ridiculing the fact finding process of the district court in Hollingsworth.

The DOMA Decision

Justice Kennedy’s decision first took on the jurisdictional issue, acknowledging the unusual posture of the case, in which the Petitioner (the United States represented by the Solicitor General) was asking the Court to affirm the decision below.  This led the court to appoint as amicus curiae Prof. Vicki Jackson of Harvard Law School to argue against jurisdiction, since none of the “parties” would make such an argument.  Ultimately, Kennedy concluded that the United States had standing to appeal the 2nd Circuit’s decision because of the government’s commitment to continue enforcing Section 3 unless and until there was a definitive ruling by the federal courts as to its constitutionality. 

The case began when the Internal Revenue Service, relying on Section 3, refused to allow Edith Windsor to use the marital exemption to avoid paying taxes on her inheritance from her wife, Thea Spyer, who died in 2009 in New York City after New York State courts had begun to recognize same-sex marriages contracted elsewhere.  (Windsor and Spyer married in Canada after having been a couple for over forty years.  New York subsequently adopted marriage equality legislatively in 2011.)  Because of the Obama Administration’s determination that it should continue enforcing Section 3, despite the conclusion by Attorney General Eric Holder and President Barack Obama that the provision was unconstitutional, the government would not comply with the lower courts’ orders to refund Windsor’s $363,000 tax payment on her inheritance.  Thus, something tangible with respect to the parties turns on the Court’s decision in this case; either Windsor gets her refund or she doesn’t.  This was enough, in Kennedy’s view, to satisfy Article III’s standing requirement for the government. For Scalia, it was a “contrivance” intended to manufacture an opportunity for the Court to rule on the constitutionality of Section 3.

Further, Kennedy found, the government had a very legitimate and direct interest in getting a definitive national precedent on Section 3, in light of the 1st Circuit’s previous ruling finding it unconstitutional.  Beyond meeting the requirements of Article III, the case would also have to meet the Court’s jurisprudence on when it might be “prudential” for the Court to abstain from deciding a case.  In the absence of a ruling on Section 3, he pointed out, “The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. . .  Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent.  That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense.”  It was clear that Justice Kennedy was persuaded by the practical problem faced by married same-sex couples and the government, were a ruling on the constitutionality of Section 3 to be further delayed.  “In these unusual and urgent circumstances,” he wrote, “the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”

Scalia decisively rejected these holdings, claiming that one could scour the U.S. Reports and never find a case in which the Court had asserted jurisdiction at the behest of a Petitioner who was asking the Court merely to affirm the holding of the court of appeals.  He observed that “the plaintiff and the Government agree entirely on what should happen in this lawsuit.  They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well.  What, then are we doing here?”  He characterized as “jaw-dropping” Kennedy’s assertion that the role of the Court was to say “what the law is” in the sense that the famous quotation of Chief Justice John Marshall used by Kennedy was presented in the majority opinion.  Scalia asserted that the Supreme Court operates to decide actual cases, incidentally deciding questions of law as required to determine the rights of the parties in a particular case, and that the Court does not have a general jurisdiction to decide “what the law is” in the absence of an actual controversy between the parties.  He chided Kennedy (an internationalist with a penchant for citing foreign precedents, to Scalia’s continued dismay) for mistaking the function of American courts for those of some other countries, citing as an example a treatise on the German constitutional court.

Kennedy’s approach to the merits of the case strikingly resembled his approach to the two earlier major gay rights opinions he wrote: Romer v. Evans (1996) and Lawrence v. Texas (2003).  In both of those cases, Kennedy eschewed the terminology that legal commentators, some justices, and many lower court judges have adopted to describe the process of judicial review, such as “strict scrutiny,” “heightened scrutiny,” “rational basis” and “suspect classification.”  He was true to form here, writing a decision that never employs this terminology and thus leaves it open to commentators and later courts to try to determine its doctrinal significance. 

Kennedy began his discussion of the merits with an extensive exposition of the traditional role of the states in deciding who could marry, and the traditional deference to state decisions on marriage by the federal government, as part of the allocation of roles in our federal system.  For several pages of his opinion, it appeared that he was ruling that Section 3 violates the allocation of authority between federal and state governments by overriding the determination of particular states that same-sex couples should be entitled to the same “status” and “dignity” as different-sex couples have in their marriages.  “DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.  Despite these considerations,” he continues, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”  But, Kennedy says, quoting his opinion in Romer, “discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”  In other words, Kennedy will not rest his decision on federalism, but will refer to Congress’s unusual “intrusion” into a traditional state function to justify a more demanding level of judicial review than might otherwise be applied in this case as part of his 5th Amendment analysis.

“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits,” he explained.  “Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form ‘but one element in a personal bond that is more enduring,’” quoting his own opinion in Lawrence.  “By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.”  But, he points out, “DOMA seeks to injure the very class New York seeks to protect.  By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”  Thus, Kennedy cited as the constitutional basis for the ruling both aspects of the Due Process Clause of the 5th Amendment, the substantive due process and the equal protection guarantees that prior Supreme Court decisions have found to inhere in that provision.  “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.  This is strong evidence of a law having the purpose and effect of disapproval of that class.  The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Thus, for Kennedy, this case was very closely analogous to Romer, where he found that Colorado voters enacted Amendment 2 to make gay people unequal to everybody else, without any plausible legitimate justification.  In this case, after reviewing the blatantly homophobic legislative history of DOMA’s enactment in 1996, he found a similar fatal flaw.  “DOMA writes inequality into the entire United States Code,” he exclaims.  “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principal purpose is to impose inequality, not for other reasons like government efficiency.  Responsibilities, as well as rights, enhance the dignity and integrity of the person.  And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.  By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.  The differentiation demeans the couple, whose moral and sexual choices the Constitution protects (citing Lawrence) and whose relationship the State has sought to dignify.”  He also found that it “humiliates tens of thousands of children now being raised by same-sex couples.” 

So the analogy with Romer is very close; Colorado enacted Amendment 2 to make gay people unequal to others without any policy justification, and Congress enacted Section 3 to make gay peoples’ marriages unequal to those of others without any policy justification.  Interestingly, Kennedy omitted to discuss the specific policy justifications that BLAG advanced in its brief and oral argument, a failure that earned the scorn of Justice Scalia in his impassioned dissent. Having found that “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage,” Kennedy concluded, “This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the 5th Amendment of the Constitution.”  He went on to explain that this is a deprivation both of liberty and of equal protection of the laws, as that concept has been found by the Court to be an essential part of the Due Process guarantee.  Early in the opinion, Kennedy made clear that all his references to “DOMA” refer only to Section 3, as the Court was not asked to rule on Section 2, the provision that purports to free states from any constitutional obligation to recognize same-sex marriages contracted in other states.

Kennedy ended with a final statement that the opinion “and its holding are confined to those lawful marriages,” i.e., “same-sex marriages made lawful by the State.”  Without expressly discussing whether the federal government is obligated to recognize same-sex marriage of individuals who reside in states that do not recognize such marriages, Kennedy’s closing paragraph creates some ambiguity on a very important point, since this decision, by its silence, leaves to the Executive Branch the task of figuring out how to implement federal laws and regulations without clear guidance.  Kennedy’s opinion might be read to restrict the federal obligation to recognizing marriages that are recognized by the state in which a couple resides, but it might alternatively be read to require the federal government to recognize lawfully contracted marriages regardless of where the couple happen to be when the issue arises.  The more expansive reading makes more sense, and seems consistent with the overall rhetorical stance of Kennedy’s opinion, but the history of subsequent reception of %Romer% and Lawrence shows Kennedy’s brand of inscrutable opinion-writing can give rise to contradictory views as to the precise holding of the Court.

Shortly after the opinion was announced, President Obama embraced the more expansive obligation of recognizing lawful marriages regardless of the couples’ residence, but emphasized that he was talking “as a president, not a lawyer,” and that it would be up to the Attorney General, working in concert with other department heads (and perhaps ultimately the federal courts), to sort this out.  Some department heads were quick on the draw.  Defense Secretary Chuck Hagel quickly indicated that the Defense Department would recognize lawful same-sex marriages for purposes of military benefits regardless of residence, and Secretary of Homeland Security Janet Napolitano chimed in similarly as to immigration issues administered by her department, including recognition of married bi-national couples for purposes of residency and citizenship applications.  The Office of Personnel Management for the federal government quickly fell into line, sending a notice to federal agencies on Friday that same-sex spouses of federal employees are now eligible for benefits coverage, retroactive to June 26, and establishing special open enrollment periods to get them signed up for benefits.  But it was less clear how this issue would be resolve for purposes of federal taxes, Social Security, and other programs that have traditionally relied on the place of residence in determining whether a couple is married.  The Internal Revenue Service issued a statement, saying that it would issue formal guidance as soon as possible, but without tipping its hand, setting off lots of speculation without hard data. 

Chief Justice Roberts’ dissenting opinion, after briefly stating agreement with Scalia’s view on jurisdiction, was devoted to attempting to cabin the impact of the decision by striving to characterize it as a “federalism” decision that would be of no relevance to the question whether same-sex couples have a right to marry under the 14th Amendment.  “The Court does not have before it,” he wrote, “and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.”  And it is accurate to say that Kennedy made clear that the Court was not addressing that question.  Nonetheless, virtually ignoring Kennedy’s 5th Amendment analysis and ultimate statement that Section 3 violates the 5th Amendment while expressly eschewing a decision based on federalism, Roberts asserted: “The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells.  I think that the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”  If that were the case, of course, the decision might be seen as having little relevance to the question whether states can deny gay people the right to marry.

But Justice Scalia emphatically disagreed, which explains why the Chief did not join that portion of his dissent devoted to the merits.  Characterizing Kennedy’s holding on the merits as “rootless and shifting” in terms of its “justifications,” he said, “For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations – initially fooling many readers, I am sure, into thinking that this is a federalism opinion.”  One of those fooled, evidently, was the Chief Justice, unless, as seems more likely, his puzzlement was more strategic than real.  But, said Scalia, although Kennedy’s opinion continues to refer to federalism from time to time as part of its 5th Amendment analysis, the frequent references to equality and liberty make this a 5th Amendment case. 

However, Scalia complains, “if this is meant to be an equal-protection opinion, it is a confusing one.  The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.”  Scalia said that he would “review this classification only for its rationality,” and the Court purports to do that, since it cites Moreno as authority, expressly a rational basis case.  “As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework.”  He then noted how Kennedy slipped back and forth between equality language and liberty language, but “never utters the dread words ‘substantive due process,’ perhaps sensing the disrepute into which that doctrine has fallen.”  (Disrepute in the Scalia household, perhaps, but not among those who disagree with the so-called originalist jurisprudence of Scalia and his acolytes on the Court.)  He also argued that this could not really be a due process case, because of the lack of a history of respect for same-sex marriage, a test that the Court has used in the past for determining whether particular conduct is entitled to protection under the Due Process Clause.  But Scalia was fighting a rear-guard action here, as Kennedy had eschewed the “history and tradition” test when writing for a majority of the Court in Lawrence, saying that longstanding historical regard for a right was not a necessary requirement for Due Process protection.  This is really part of the “living constitution” debate, in which Scalia recently took the position during a public talk that the Constitution is “dead, dead, dead” – not to say that the Constitution is meaningless, but rather to say that, in his view, the essence of a written Constitution is that its meaning is fixed upon its adoption and does not evolve over time.  This view has never won a firm majority on the Court, but Scalia writes as if it is well-established, as it is in his own mind.  Kennedy clearly disagrees, as do the four Democratic appointees and even, from time to time, Chief Justice Roberts.   Only Thomas and, perhaps, Alito, seem to adhere to Scalia’s views on this.

After ridiculing Kennedy’s opinion for never providing a fully-developed analysis of any of the doctrinal bases cited for the Court’s holding, Scalia wrote, “Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.  The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.”  Scalia then went on to hotly dispute – as he did in his Romer and Lawrence dissents – that antigay animosity was behind the challenged law, rejecting the idea that anti-gay legislation is necessarily the result of bigotry.  He suggested that Kennedy failed to engage the arguments put forth by BLAG to defend Section 3 “because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them,” and accused the Court of labeling the proponents of DOMA as “enemies of the human race.” 

Also, as is his wont, Scalia predicted that the ultimate result of the opinion would be to decide the issues not presented to the Court, but beyond making predictions, and in a manner perhaps without precedent in the annals of the Supreme Court, Scalia inserted in his dissent several extended quotes from Kennedy’s opinion, edited to make the case that state laws denying same-sex couples the right to marry are unconstitutional.  Scalia provided a veritable roadmap for lower courts to use in striking down state anti-marriage amendments!  “By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” he insisted, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”  Scalia concluded that the Court had improperly ventured into the political sphere, which is where he insisted that the issue of same-sex marriage should be resolved.

Alito’s dissent on the merits is more tempered than Scalia’s, adverting to the theories advocated by Prof. Robert George of Princeton University, a prominent foe of same-sex marriage who has argued that the traditional definition of marriage focused on its procreative potential and the complementarity of the two sexes, is an essential component of western civilization, with which we tamper at our peril.  After appointing out the different views as to the essential character of marriage, contrasting the traditional view of its procreative purpose and the modern view embraced by popular culture, Alito insisted that the Constitution takes no position between these two views and mandates neither.  Thus, the determination which view should be embraced by society is up to the polity speaking through the democratic process.  He argued that the Court should not intervene in this process.  “In our system of government,” he wrote, “ultimate sovereignty rests with the people, and the people have the right to control their own destiny.  Any change on a question so fundamental should be made by the people through their elected officials.”  And, “By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage. . .  The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted).  The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. . .  I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.”

As noted above, Alito devoted a lengthy textual footnote, rather out of the blue, to deprecating the conduct of the Prop 8 trial, presenting this as an illustration of why, in his view, it is inappropriate for the courts to take on the same-sex marriage question.  “At times, the trial reached the heights of parody,” he wrote, “as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom.”  He deprecated the contention in academic amicus briefs filed in Hollingsworth “that we are bound to accept the trial judge’s findings – including those on major philosophical questions and predictions about the future – unless they are ‘clearly erroneous.’  Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously,” he harrumphed.  Take that, you arrogant professors of constitutional law and civil procedure!  One suspects that Alito, who joined the dissent in Hollingsworth, was disappointed that he could not embody these comments in a majority or concurring opinion, and was eager to make these observations somewhere, so here they are in the other case.

The Proposition 8 Decision

The majority and dissenting opinions in Hollingsworth are shorter and need less discussion, since there was no comment in either concerning the merits of the 14th Amendment claim that Proposition 8, which inserted into the California Constitution an amendment providing that only different-sex marriages would be “valid or recognized in California,” violated the equal protection rights of same-sex couples. 

As noted above, Chief Justice Roberts, writing for the Court, accepted the contention that because the initiative proponents could not satisfy the traditional Article III standing test of having a tangible, personal interest in the outcome of the case (i.e., they were not asking the Court for a remedy specific to them, as Proposition 8 does not directly affect any of their own rights; presuming none of the proponents has any interest in marring a person of the same sex), they could not appeal the trial court’s decision.  If this means that sometimes state officials may rid themselves of noxious initiative products through the expedient of failing to defend them in the courts and then refusing to appeal the resulting decisions striking them down, then so be it.  That’s the way the system works, according to Roberts, because federal courts are only authorized to decide real cases between real parties.  “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” concluded Roberts. “We decline to do so for the first time here.” 

At the same time, Roberts made clear, the trial court did have jurisdiction, despite the failure of the named defendants to provide a substantive defense, and thus there is no jurisdictional fault identified by the Supreme Court with District Judge Vaughn Walker’s ruling in the case.  Justice Kennedy, in dissent, argued that the alternative standing theory was adequate to make this appeal proper, resting on the California Supreme Court’s admitted role as the authoritative exponent of California law.  That didn’t impress Chief Justice Roberts.  Since federal standing is a question of federal law, the California Supreme Court’s ruling was not binding on the federal courts.  “The judgment of the Ninth Circuit is vacated,” he wrote, “and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”  That should mean, in the normal course of events, that the 9th Circuit will lift its stay of Judge Walker’s Order, shifting the focus of attention to the implementation of that Order.

There was some comment about the “odd” line-up of the justices in this 5-4 ruling.  The Chief Justice was joined by Justice Scalia and three members of the “liberal wing” of the Court, Justices Ginsburg, Breyer, and Kagan.  Justice Kennedy’s dissent was joined by Justices Thomas and Alito and the remaining member of the “liberal” wing, Justice Sotomayor.  Thus, three justices who voted to strike down Section 3 of DOMA, and presumably would find Prop 8 to be unconstitutional, agreed with the Chief Justice that there was no jurisdiction to rule on the merits.  As to the dissenters, Justice Alito had found jurisdiction in Windsor and was clearly itching to uphold Proposition 8.  Justice Sotomayor, to judge by her general jurisprudential stance and her questions and comments at oral argument, would probably have voted to affirm the lower courts and strike down Prop 8 were she able to reach the issue.  Justice Thomas would most likely have agreed with Alito as to the merits.  Justice Kennedy’s views are more difficult to pin down, but one suspects that he would not be arguing so fiercely in favor of jurisdiction in this case if he did not have a strong view how it should be decided.  Perhaps reading the tea-leaves of his Windsor opinion and taking Scalia’s dissent at face value, Kennedy was also poised to strike down Prop 8.  So, the question occurs, if both Sotomayor and Kennedy were poised to strike down Prop 8, why did the other three “liberals” side with Roberts to dismiss the case? 

For months, commentators have been struggling with Justice Ginsburg’s views on Roe v. Wade and what they might portend for her position in the same-sex marriage cases.  Ginsburg has frequently stated that Roe was a premature and unduly expansive ruling, in light of the evolving political views on abortion rights at the time it was decided.  She has suggested that had the Court written a narrower decision, leaving the future scope of abortion rights to the legislative process, abortion might not have become the hot-button political issue that it quickly became, with all the divisive effects flowing from that development.  One speculates that Breyer and Kagan joined the Chief Justice in dismissing the appeal, having concluded that a decision on the merits might not strike down Prop 8 because Ginsburg might not supply the necessary fifth vote.  It may even be that Ginsburg joined out of the pragmatic view that a dismissal would result in allowing the district court’s opinion to go into effect and same-sex marriage to resume in California.  Thus, Prop 8 would be vanquished by default without the Supreme Court having to go on record as to whether same-sex couples have a right to marry under the 14th Amendment.  This might seem to be the most prudent way for the Court to deal with an issue as to which there remains much public controversy.  The art of avoiding merits decisions while obtaining desired results is a subtle weapon in the judge’s arsenal, perhaps cannily deployed here by Justice Ginsburg.  In this light, Justice Scalia’s concurrence with the Chief might seem odd, given his ardent opposition to same-sex marriage, but on the other hand his concurrence seems consistent with his impassioned dissent on jurisdiction in Windsor, in which the Chief concurred.

So, the bottom line on the Hollingsworth non-decision is that the Court, in effect, decided to let the district court opinion be the final, unreviewable word on the narrow question of whether Prop 8 was unconstitutional, without creating any precedent binding on other federal courts, since only appellate rulings create binding precedents.

But where did that leave the case after the stay was lifted and Judge Walker’s Orderwent into effect?  As to that, there was not complete agreement among the “parties” – if that term is loosely deployed to take in the original plaintiffs, the named defendants, and the intervenors whose standing to appeal had been definitively rejected by the Supreme Court.  The plaintiffs argued all along that if the appeal was dismissed, Judge Walker’s Order required the state of California to make marriage licenses available to same-sex couples and to recognize those marriages as fully equal to the marriages of different-sex couples throughout the state, not limited to the two counties (Alameda and Los Angeles) whose clerks were named defendants, and certainly not limited to the two plaintiff couples who brought the case.  In its 2009 decision finding that Prop 8 had been duly enacted, the California Supreme Court made clear that same-sex couples who married prior to the passage of Prop 8 remained married, and that their marriages were entitled to equal treatment under California law.  Indeed, that Court also ruled that pursuant to its prior decision on the merits in the marriage cases, domestic partnerships in California would be entitled to the same status as marriages under state law in order to satisfy the court’s equal protection and due process holdings.  It became clear after the Supreme Court’s decision was announced that Governor Jerry Brown (who was an original named defendant as attorney general) and Attorney General Kamala Harris agreed with that view.   Comments by the justices during the oral argument hinted that dismissal on grounds of jurisdiction was a likely outcome, and Governor Brown, anticipating the ruling, asked the attorney general for an analysis of “the scope of the district court’s injunction.”  She prepared a letter, which is dated June 3, advising the governor that “the injunction would apply statewide to all 58 counties, and effectively reinstate the ruling of the California Supreme Court in In re Marriage Cases (2008), 43 Cal.4th 757,857.” Harris concluded that the Department of Public Health could instruct all county officials to resume issuing marriage licenses and recording the subsequent marriages upon the lifting of the stay.  The governor accepted this advice, and hours after the Supreme Court’s opinion was announced, the Department sent instructions to all County Clerks and County Recorders accordingly.  As soon as the stay was lifted, the plaintiffs were alerted, rushed to get their marriage licenses, and were promptly married.  Some clerks offices planned to stay open late Friday to process license applications from same-sex couples.

The initiative proponents had a different view, not unexpectedly, and Andrew Pugno, their California counsel, argued that a trial court ruling is not binding beyond the immediate parties.  He contended that the only couples entitled to the benefit of Walker’s Order were the plaintiffs. This was not brought as a class action, he contended, and all the clerks in the state were not joined as co-defendants.  He also argued that it was established in California law that only appellate rulings have statewide effect.  Whether that would be true concerning a federal district court ruling as opposed to a California trial court ruling seems questionable, in light of the Supremacy Clause of the U.S. Constitution.  If Prop 8 is unconstitutional as a basis for denying marriage licenses to the plaintiffs, surely it is unconstitutional if used to deny marriage licenses to any other similarly-situated same-sex couple anywhere in California, and principles of res judicata should prevent the need to re-litigate the matter in each county.  Pugno threatened to take some sort of legal action to block implementation of the Order beyond the immediate parties, and criticized the lifting of the stay by the 9th Circuit panel and subsequent performance of marriages as lawless and inappropriately rushed.

As to timing, the Supreme Court’s procedures give disappointed parties up to 25 days to file motions for rehearing, after which the Court sends its mandate out to the lower court, in this case ordering dismissal of the appeal.  It seemed unlikely that the Court would grant rehearing in either case, as that would require the disappointed party to persuade a member of the majority to change his or her views.  The 9th Circuit Clerk filed an entry acknowledging receipt of the Court’s decision promptly after it was announced, a welcome artifact of our modern age of near-instantaneous electronic accessibility of high court rulings, and responded promptly to Attorney General Harris’s request to the lift the stay.  Perhaps facts on the ground will successfully outflank any attempt by the proponents to interfere with the speedy implementation of the Order.

Also on Friday, the 28th, came what is probably the first judicial reliance on U.S. v. Windsor, as a federal district judge in Michigan cited the case in ruling on pending pretrial motions in an action challenging the Attorney General’s position that an anti-marriage amendment prevents the implementation of a recently enacted domestic partnership law.  More details on that when I’ve had an opportunity to read the opinion.

Supreme Court Invalidates Section 3 of DOMA but Avoids Ruling on Proposition 8

Posted on: June 26th, 2013 by Art Leonard 2 Comments

  [First draft of history.  This posting was written within the first few hours after the Supreme Court’s release of its decisions this morning in US v. Windsor and Hollingsworth v. Perry.  I’ll certainly have second thoughts and third thoughts, etc…. but this is the first draft of history.]         

In a pair of 5-4 rulings released on June 26, the United States Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) violates the 5th Amendment of the Bill of Rights, but that the Court did not have jurisdiction to decide whether California Proposition 8 violates the 14th Amendment, because the initiative proponents of that measure lack federal constitutional standing to appeal the trial court’s decision holding it unconstitutional.   There is a 25-day period during which Petitioners can seek rehearing, after which the Court’s mandate in the Prop 8 case will go to the 9th Circuit, which then must issue an order dismissing the appeal and lifting the stay on Judge Vaughan Walker’s Order.  At that point, later in July or early in August, at least theoretically, same-sex marriages will become available throughout California, although differences of opinion about the scope and effect of Walker’s Order may result in litigation delaying that outcome.

             Justice Anthony M. Kennedy, Jr., wrote for the Court in United States v. Edie Windsor, the DOMA case, producing a somewhat typical Kennedy opinion that obscures the doctrinal basis of the ruling and will leave commentators and lower courts guessing as to its effect in subsequent cases.  Kennedy’s opinion referred to liberty protected by the Due Process clause, federalism concerns in light of the traditional authority of the states to decide who can marry, and the equal protection requirements that the Court has found to be part of the 5th Amendment’s Due Process Clause.  In some respects, his opinion evoked his 1996 opinion for the Court in Romer v. Evans, which rested on the idea that an enactment whose clear purpose  and effect are to treat some people adversely, creating a sort of second-class citizenship, is facially unconstitutional without much need for further analysis.  At oral argument, Justice Ruth Bader Ginsburg described state marriage without federal benefits as “skim milk marriage,” but Kennedy did not adopt that nomenclature, instead referring to 2nd class marriage.

             As usual with Kennedy, his opinion avoids the technical terminology of constitutional analysis that many commentators customarily use in describing the process of judicial review, so the case will not be easy to classify in terms of such concepts as “strict scrutiny,” “heightened scrutiny,” “suspect classifications,” or “rational basis.”  The Court thus avoided taking a position as between the trial court, which expressly employed the rational basis analysis to strike down Section 3, and the 2nd Circuit, which found “heightened scrutiny” should apply to sexual orientation discrimination cases and opined, in passing, that Section 3 would survive a less demanding rational basis review.  This was probably at least a small disappointment for Windsor’s counsel, Roberta Kaplan of Paul Weiss LLP, and the LGBT Rights Project at the ACLU, who had hoped that a “heightened scrutiny” ruling by the Court could be used in other cases, especially pending cases challenging state bans on same-sex marriage in other parts of the country. 

 As usual when dissenting from a Kennedy gay rights opinion, Justice Antonin Scalia’s dissent expressed some relief that the Court had not used heightened scrutiny to strike down Section 3, but he then expressed puzzlement about the basis for the ruling.  After summarizing and criticizing Kennedy’s analysis, Scalia wrote, “Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.  The sum of all the Court’s non-specific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.”

 Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy’s decision and did not write separately. 

             President Barack Obama promptly issued a statement applauding the Court’s ruling and said he had directed Attorney General Eric Holder “to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”  This is especially good news for bi-national married same-sex couples, whose marriages should be recognized as equal to those of different-sex couples, and it will obviate any need for a “gay marriage” amendment to be part of the pending immigration reform legislation in Congress.  Those few federal statutes that contain specialized marriage definitions for particular policy purposes should now be construed to treat lawful same-sex marriages the same as lawful different-sex marriages.

             However, as Justice Scalia pointed out in his acerbic dissent, the Court’s opinion is  obscure on one very important question: whether lawfully-married same-sex couples who live, work, or travel in states that don’t recognize same-sex marriages will still be recognized as married for federal purposes should the question arise when they are not in the state where they married (or another state that recognizes the marriage).  Kennedy ended his opinion with a cryptic statement, “This opinion and its holding are confined to those lawful marriages,” which follows a passage criticizing DOMA because it “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty” and “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”  This relates to the federalism aspect of Kennedy’s decision, under which a state may, presumably, decide not to perform or recognize same-sex marriages unless, of course, Kennedy’s due process and equal protection concerns would override the state’s reservations in this regard.

 There were actually three dissenting opinions, by Chief Justice John R. Roberts, Jr., Justice Scalia (joined by Justice Clarence Thomas, and, in part, by the Chief Justice), and Justice Samuel Alito (joined in part by Justice Thomas).  The Chief Justice and Justice Scalia argued that the Court did not have jurisdiction to decide the DOMA case, because the Justice Department agreed with the rulings by the trial court and the 2nd Circuit Court of Appeals,  so the parties before the Court were not “adverse” on the merits, lacking a true “case or controversy” as required by the Constitution.   Roberts and Scalia both suggested that it was not appropriate for the government to ask the Supreme Court to affirm a lower court decision with which the government agrees.  

 The Chief Justice’s dissent stressed the “federalism” aspects of Kennedy’s opinion, which would possibly lessen its significance for pending challenges to state bans on same-sex marriage.   Roberts emphasized that Kennedy’s opinion purported to take no position on the question whether same-sex couples have a right to marry under the 14th Amendment.  He said that “the disclaimer is a logical and necessary consequence of the argument that the majority has chosen to adopt.  The dominant theme of the majority opinion is that the Federal Government’s intrusion in an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells.  I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”  As such, Roberts would argue, it has no relevance to disputes over the right to marry.

   Justice Scalia also disagreed with Justice Kennedy on the merits of the case, but the Chief Justice did not join that part of his colorfully-worded opinion.  Scalia discounted Kennedy’s disclaimer that the Court was not deciding whether same-sex couples have a constitutional right to marry, predicting that lower courts would rely upon his opinion to strike down state restrictions on same-sex marriage.  In fact, Justice Scalia took the unusual step of demonstrating how a lower court could appropriate paragraphs from Kennedy’s opinion, change a few of the words, and produce a result requiring a state to let same-sex couples marry.  Scalia’s dissents in gay rights cases are usually packed with colorful rhetoric, and this was no exception, but this is the first time he actually shows lower courts how to accomplish the terrible results that he forecasts will occur as a result of the Court’s opinion. (He did forecast, in his Lawrence dissent exactly ten years ago, that the ruling striking down sodomy laws would lead to same-sex marriage.)

  Justice Alito, by contrast, argued in his dissent that the intervention of the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) as defenders of DOMA took care of the “case or controversy” problem, suggesting that there is necessarily a role for the courts to play when both the plaintiff and the government agree that a statute is unconstitutional.  He suggested that in such a case, Congress does have a legitimate interest in defending the statute, accepting the argument advanced by BLAG that the invalidation of a statute is a direct harm to Congress’s legislative authority.  Alito disagreed with Kennedy on the merits of the constitutional claim, asserting that the question whether the federal government must recognize same-sex marriages was a political question not suitable for resolution by the Court.  Alito said that the Constitution has nothing to say about same-sex marriage one way or the other.  In his view, whether same-sex couples can marry should be left to individual states to decide through their political processes.

 Chief Justice Roberts wrote for the Court in Hollingsworth v. Perry, the Prop 8 case.  He found that the initiative proponents did not have standing to appeal District Judge Vaughan Walker’s ruling that Prop 8 violated the 14th Amendment, because the proponents had no personal tangible stake in the outcome.  Justices Scalia, Ginsburg, Breyer and Kagan joined the Court’s opinion.  Justice Kennedy wrote a dissent joined by Justices Thomas, Alito, and Sotomayor.  Pundits will undoubtedly tie themselves in knots trying to figure out why three of the Democratic appointees joined Scalia and the Chief in the majority while Justice Sotomayor joined Kennedy and the Court’s two most conservative members, Alito and Thomas, in the dissent, especially since all four Democratic appointees joined Kennedy’s decision on the merits in the Windsor case.  However, since neither Roberts nor Kennedy addressed the merits in their opinion, it is possible that the other justices did not see this as a particularly ideological case in the end — there is, really, no necessary liberal or conservative position on the question whether a state constitution can be construed to confer Title III standing on initiative proponents. Kennedy argues in dissent that it can.

             Although the immediate results of both decisions are clear, their longer-term effects are not.  The full meaning of a Supreme Court opinion cannot be determined on the day it is issued, but will depend on the responses of government officials, legislators, and lower courts, as well as private sector actors.

 Section 3 of DOMA is gone, but that does not necessarily mean that all the barriers to full equality in federal rights are necessarily eliminated or will all disappear overnight.  The President’s prompt statement suggests that by the time the Court issues its mandate in the Windsor case towards the end of July, there should be some guidance emanating from the Justice Department so that all federal agencies are on the same page concerning treatment of legally-married same-sex couples.  It would be particularly helpful if this guidance addressed the issue of lawfully married couples who reside in states that don’t recognize same-sex marriages.  The pending Respect for Marriage bill in Congress would mandate federal recognition for those marriages regardless of where the couple happens to live or be visiting, and the Administration had stated support for that legislation.  It is unlikely that Congress, politically fractured at present, would take any action were the Administration to adopt this rule administratively.

 Justice Kennedy pointed out in his opinion that studies have identified more than a thousand federal statutory or regulatory provisions for which marital status is relevant.  Most of those provisions contain no express definition of marriage, while some include or refer to descriptive language relevant to the particular policy of the statute or regulation.  Presumably, after the Windsor ruling goes into effect, any such provision that would not on its face include same-sex marriages would have to be interpreted consistently with the Court’s ruling to meet constitutional muster.

 As noted above, the Court’s ruling on the Proposition 8 case is not a ruling on the merits that the California constitutional amendment is unconstitutional.  Neither Roberts’ opinion for the Court nor Kennedy’s dissent takes any position on the merits of the equal protection theory adopted by the 9th Circuit or the equal protection and due process theories endorsed by Judge Walker in the trial court.  Once Walker’s Order goes into effect after the 9th Circuit lifts its stay in response to the Supreme Court’s mandate to dismiss the appeal on jurisdictional grounds, battle may be enjoined around the state.  The original defendants in the lawsuit, statewide officials and the county clerks in Alameda and Los Angeles Counties, all sued in their official capacities so that changes in those offices since the case was filed in 2009 would not make any difference, would clearly be bound by Judge Walker’s Order.  Whether clerks in other counties would be bound, or would be subject to direction from state officials to comply, are questions yet to be settled.  Governor Brown promptly announced his understanding that Judge Walker’s Order would have statewide effect, and a letter was sent to county clerks stating that they would have to comply when the stay is lifted.  But the determined opponents of same-sex marriage signaled on June 26 that they will do everything they can to try to block its widespread implementation.