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Supreme Court Sets Aside Colorado Commission Ruling in Wedding Cake Case, Condemning Government Hostility to Religion

Posted on: June 4th, 2018 by Art Leonard No Comments

The United States Supreme Court ruled on June 4 that overt hostility to religion had tainted the decision process in the Colorado Civil Rights Commission when it ruled that baker Jack Phillips and his Masterpiece Cakeshop had unlawfully discriminated against Charlie Craig and Dave Mullins in 2012 by refusing to make them a wedding cake.  Writing for the Court, Justice Anthony M. Kennedy reaffirmed the right of the states to ban discrimination because of sexual orientation by businesses that sell goods and services to the public, but insisted that those charged with discrimination are entitled to a respectful consideration of their religious beliefs when charges against them are being adjudicated.  Five other members of the Court – Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Elena Kagan and Neil Gorsuch – joined Kennedy’s opinion.  Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, 2018 U.S. LEXIS 3386, 2018 WL 2465172.

Kennedy found that the particular circumstances of this case fell short of the requirement that government be neutral in matters of religion.  During the oral argument of the case in December, he had signaled this concern, making a troubling observation during the argument by Colorado’s Solicitor General, Frederick Yarger, who was defending the state court’s decision against the baker.  Kennedy said, “Counselor, tolerance is essential in a free society.  And tolerance is most meaningful when it’s mutual.  It seems to me that the State in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”  In his opinion for the Court, Kennedy, noting comments made at the public hearing in this case by two of the state Commissioners, said, “The neutral and respectful consideration to which Phillips was entitled was compromised here, however.  The Civil Rights commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

At the first public hearing, wrote Kennedy, “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”  This commissioner also said, “If a businessman want to do business in the state and he’s got an issue with the – the law’s impacting his personal belief system, he needs to look at being able to compromise.”  At the second hearing, a different commissioner spoke disparagingly about how “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”  Kennedy found these remarks to constitute disparagement of religion by commissioners who were supposed to be neutral when acting for the government in deciding a case. He emphasized that the record of the hearings “shows no objection to these comments from other commissioners” and that the state court of appeals ruling affirming the Commission’s decision did not mention these remarks.

Kennedy also noted that as of 2012, Colorado neither allowed nor recognized same-sex marriages, so Phillips could “reasonably believe” that he could refuse to make a cake for such a purpose. The factual record suggests that Phillips cited the state ban on same-sex marriage as a reason for his refusal, in addition to his own religious beliefs.

Kennedy invoked a 1993 decision by the Supreme Court, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, in which the Court held that overtly anti-religious bias by a legislative body that had enacted a ban on ritual slaughter of chickens directly aimed at the practices of a minority religious sect violated the Free Exercise Clause.  Even though the statute, on its face, was neutral with respect to religion, and thus would normally be enforceable against anyone who engaged in the prohibited practice regardless of their religious or other motivation, the Court found that the openly articulated anti-religious sentiments of the legislative proponents had undercut the requirement of government neutrality with respect to religious practices.  The only reason the municipality had passed the ordinance was to forbid ritual slaughter of chickens by members of this particular religious sect.  Thus, it was not a neutral law, since it specifically targeted a particular religion’s practice.  Similarly, in this case, Kennedy said, evidence of hostility to religion by the Commission members tainted the decisional process.

Kennedy observed that when the Court decided in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that same-sex couples have a fundamental right to marry, it had also noted that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  At the time, dissenting Justices Alito and Antonin Scalia had emphasized the inevitable clashes that might occur in future as those with religious objections confronted the reality of same-sex marriages, and Scalia – as was his usual practice in dissents from Kennedy’s opinions in gay rights cases – ridiculed Kennedy’s statements as falling short of dealing with the clashes that were sure to occur.  In this opinion, Kennedy develops the Obergefell dictum about religious objections further, but does not suggest that religious objectors enjoy a broad exemption from complying with public accommodations laws.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, generally joining the Court’s reasoning but disavowing Kennedy’s reliance on evidence from a stunt conceived by William Jack, a religious opponent of same-sex marriage who filed an amicus brief in the case. Upon hearing about the Masterpiece Cakeshop discrimination charge, Mr. Jack had approached three other Colorado bakers, asking them to make a cake decorated with pictures and Biblical quotations derogatory of same-sex marriage and gay people, and all three bakers refused his request because they found the desired product to be offensive.  Jack filed charges of religious discrimination against them, but the Colorado commission rejected his charges, finding that the bakers had a right to refuse to make cakes conveying messages they found offensive.  Jack then argued – persuasively, in the view of Kennedy, Roberts, Alito and Gorsuch – that the Commission’s different treatment of the charges against the other bakers as compared to its treatment of Jack Phillips showed the Commission’s hostility to religious beliefs.  Justice Clarence Thomas, whose separate concurring opinion was joined only by Gorsuch, also found Jack’s arguments persuasive.

Kagan’s concurring opinion argued that the other baker cases were distinguishable. She pointed out that Jack had asked the bakers to make a cake that they would have refused to make for any customer, regardless of their religion or sexual orientation.  By contrast, Phillips refused to make a wedding cake that he would happily have sold to different-sex couples but refused to sell to same-sex couples.  In the former case, there is no discrimination on grounds prohibited by the Colorado statute.  Gorsuch, in his separate concurrence (with which Justice Alito joined), insisted that the three bakers were discriminating against Jack based on his religious beliefs, and insisted on distinguishing between a cake to “celebrate a same-sex marriage” and a generic “wedding cake.”

Interestingly, the Court’s opinion focused on free exercise of religion and evaded ruling on the other main argument advanced by Jack Phillips: that requiring him to bake the cake would be a form of compelled speech prohibited by the First Amendment freedom of speech clause.  The Trump Administration had come into the case in support of Phillips’ appeal, but limited its argument to the free speech contention, which Gorsuch and Thomas also embraced in their concurring opinions.

Justice Ruth Bader Ginsburg dissented in an opinion joined by Justice Sonia Sotomayor.  She minimized the significance of the statements by the two Colorado commissioners.  “Whatever one may think of the statements in historical context,” she wrote, “I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.  The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.  First, the Division had to find probable cause that Phillips violated [the statute].  Second, the [Administrative Law Judge] entertained the parties’ cross-motions for summary judgment.  Third, the Commission heard Phillips’ appeal.  Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo.  What prejudice infected the determinations of the adjudicators in the case before and after the Commission?  The Court does not say.  Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council.”

Ginsburg focused her dissent on a series of statements from Kennedy’s opinion which make clear that the Court’s ruling does not endorse some sort of broad exemption for religious from complying with anti-discrimination laws, including the following:  “It is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”  “Purveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”  Gay persons may be spared from “indignities when they seek goods and services in an open market.”  She pointed out that all of these statements “point in the opposite direction” from the Court’s conclusion that Phillips should win his appeal.

The narrowness, and possibly limited precedential weight of the Court’s opinion were well expressed by Kennedy, when he wrote, “the delicate question of when the free exercise of [Phillips’] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.  That requirement, however, was not met here.  When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”  Taking together the date of the incident (2012), the inconsistency Kennedy saw with the Commission’s treatment of the bakers who turned down Jack’s order for the gay-disparaging cakes, and the comments by the commissioners at the hearing, Kennedy wrote, “it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.”  Justice Kagan agreed that in this case the State’s decision was “infected by religious hostility or bias,” although she (and Breyer) disagreed that the Commission’s treatment of Jack’s complaint against the three bakers supported this conclusion, finding that situation distinguishable.

Gorsuch and Thomas would have gone beyond the Court’s opinion to find a violation of Phillips’ freedom of speech as well.  Kennedy wrote, “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”  But he took this issue no further, instead focusing on the hostility to religion he found reflected in the Colorado commission record.  Thus, the Court’s holding is narrowly focused on the requirement of neutrality toward religion by government actors.  Gorsuch and Thomas, by contrast, found the compelled-speech argument compelling.

The next shoe to drop on the possible significance of this ruling may come quickly.  Also on June 4, the Court listed for conference distribution the petition and responses filed with the Court in State of Washington v. Arlene’s Flowers, Inc., 187 Wash.2d 804, 389 P.3d 543 (Wash., February 16, 2017), petition for certiorari filed, July 21, 2017, for discussion at its June 7 conference, the results of which will probably be announced on June 11.  Arlene’s Flowers refused to provide floral arrangements for a same-sex wedding, and was found by the state civil rights agency and the Washington state courts to be in violation of the public accommodations statute.  Arlene’s petition was filed last summer, but no action was taken by the Court pending a decision of the Masterpiece Cakeshop case.  If the Court denies the petition, that would reinforce the view that the Masterpiece ruling is narrowly focused on the evidence of “hostility to religion” by the Colorado Civil Rights Commission, and that absent similar evidence in the Washington state adjudication record, the Court is willing to leave the Washington Supreme Court ruling against Arlene’s Flowers in place.  However, the Court might grant the petition and remand the case to the Washington Supreme Court for reconsideration in light of Masterpiece.  This could respond to Justice Kennedy’s observation that the Colorado Court of Appeals decision did not even mention the commissioner remarks that aroused Justice Kennedy’s ire at oral argument and that were a significant factor in the Supreme Court’s decision.  A remand to the Washington court could implicitly direct that court to examine the adjudication record for any signs of hostility to religion at any stage in that proceeding.

Interestingly, the Oregon Supreme Court recently heard oral argument in a similar wedding cake case, Klein d/b/a Sweetcakes by Melissa v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Court of Appeals of Oregon, December 28, 2017), appeal pending before the Oregon Supreme Court (argued in May, 2018).  A ruling by the Oregon court could provide the first sign of how lower courts will interpret Masterpiece Cakeshop, depending whether the Oregon adjudication record shows signs of hostility to religion.  Interestingly, this case was instigated not by the same-sex couple who were denied service but rather by the state’s attorney general, reacting to press reports about the denial.

It is occasionally difficult when the Supreme Court issues a ruling in a controversial case to determine exactly what the ruling means for future cases.  Ultimately, the meaning of a case as precedent will depend on the factual context of subsequent cases, and on which statements by the justices are seized upon by lower court judges to support their conclusion about how the later cases should be decided.  Kennedy’s own words suggest that these analyses will necessarily be heavily influenced by the facts of those cases.  As he wrote in conclusion: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

At the oral argument, Phillips and Masterpiece Cakeshop were represented by Kristen K. Waggoner of Alliance Defending Freedom, the Scottsdale, Arizona, based religious advocacy firm whose donors are funding this appeal. Donald Trump’s appointee as Solicitor General, Noel J. Francisco, made his first appearance before the Court in this capacity to argue the Administration’s freedom of speech position.  As noted above, Colorado Solicitor General Frederick R. Yarger appeared in support of the Commission’s ruling, and David D. Cole, an ACLU attorney, argued on behalf of Craig and Mullins.

I did an interview on NYC-based radio station WBAI on Monday, June 11, focused mainly on discussing this case.  Here’s the link:

 

https://archive.org/details/ProfArthurLeonardSeg61118MGH

 

 

 

 

Supreme Court Receives Two New Certiorari Petitions on Title VII Sexual Orientation Discrimination Claims

Posted on: May 31st, 2018 by Art Leonard No Comments

At the end of May the Supreme Court had received two new petitions asking it to address the question whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation.

Altitude Express, the former employer of the late Donald Zarda, a skydiving instructor who claimed he was dismissed because of his sexual orientation in violation of Title VII, has asked the Court to reverse a February 26 ruling by the U.S. Court of Appeals for the 2nd Circuit.  The 2nd Circuit ruled in Zarda v. Altitude Express, 883 F.3d 100 (en banc), that the district court erred in dismissing Zarda’s Title VII claim as not covered under the statute, and sent the case back to the U.S. District Court, holding that sexual orientation discrimination is a “subset” of sex discrimination.

Gerald Lynn Bostock, a gay man who claims he was fired from his job as the Child Welfare Services Coordinator for the Clayton County, Georgia, Juvenile Court System because of his sexual orientation, is asking the Court to overturn a ruling by the 11th Circuit Court of Appeals, which reiterated in his case its recent ruling in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017), that an old precedent requires three-judge panels within the 11th Circuit to dismiss sexual orientation claims under Title VII.  As in the Evans case, the 11th Circuit refused Bostock’s request to consider the question en banc. See Bostock v. Clayton County Board of Commissioners, 2018 U.S. App. LEXIS 12405, 2018 WL 2149179 (11th Cir., May 10, 2018).

The question whether Title VII can be used to challenge adverse employment decisions motivated by the worker’s actual or perceived sexual orientation is important as a matter of federal law, and even more important nationally because a majority of states do not forbid such discrimination by state statute. Although Title VII applies only to employers with at least 15 employees, thus leaving regulation of small businesses to the states and localities, its applicability to sexual orientation discrimination claims would make a big difference for many lesbian, gay and bisexual workers in substantial portions of the country where such protection is otherwise unavailable outside those municipalities and counties that have local ordinances that cover sexual orientation claims. It would give them both a federal forum to litigate their employment discrimination claims and substantive protection under Title VII.  For example, not one state in the southeastern United States forbids sexual orientation discrimination by statute.  In Georgia, individuals employed outside of a handful of municipalities are, like Gerald Bostock in Clayton County, out of luck unless the federal law can be construed to protect them.  Thus, an affirmative ruling by the Supreme Court would be especially valuable for rural employees who are unlikely to have any state or local protection.  (The question whether a county or city ordinance provides protection depends on where the employer does business, not where the employee lives, so somebody living in Birmingham, Alabama, but working in a factory or a retail business outside the city limits, would not be protected by the city’s ordinance.)

During the first several decades after Title VII went into effect on July 2, 1965, every attempt by LGBT plaintiffs to assert sexual orientation or gender identity discrimination claims was rejected by the Equal Employment Opportunity Commission (EEOC) and the federal courts. Two Supreme Court decisions adopting broad interpretations of the meaning of discrimination “because of sex” have led to a movement to reconsider that old position.  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court accepted the argument that an employer who discriminates against a worker because of the worker’s failure to comport with stereotypes the employer holds about sex and gender may have acted out of a forbidden motivation under Title VII.  And in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), holding that the interpretation of “because of sex” was not limited to the factual scenarios envisioned by Congress in 1964, the Court rejected the 5th Circuit’s holding that Title VII could not apply to a case where a man was being subjected to hostile environment harassment of a sexual nature by male co-workers.  In that case, the Court (speaking unanimously through Justice Antonin Scalia) said that Title VII could be applied to “comparable evils” to those envisioned by Congress.  Taking these two cases together as precedents, lower federal courts began to interpret federal laws forbidding sex discrimination to be susceptible to broader interpretations, first in cases involving transgender plaintiffs, and then more recently in cases involving lesbian, gay or bisexual plaintiffs.

The EEOC embraced this movement in the lower federal courts during the Obama Administration in rulings reversing half a century of agency precedent to extend jurisdiction to gender identity and sexual orientation claims. The key sexual orientation ruling is Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), issued just weeks after the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  The EEOC’s rulings are not binding on the federal courts, however, and the agency does not have the power to enforce its rulings without the courts’ assistance.  It does have power to investigate charges of discrimination and to attempt to persuade employers to agree to settle cases that the agency finds to be meritorious. The decision that the statute covers sexual orientation also provides a basis to ground retaliation claims under Title VII when employees suffer adverse employment actions because they oppose discrimination or participate in enforcement proceedings.

Plaintiffs bringing these sexual orientation cases in federal courts have had an uphill battle because of the weight of older circuit court decisions rejecting such claims. Under circuit court rules, old appellate decisions remain binding not only on the district courts in each circuit but also on the three-judge circuit court panels that normally hear appeals.  Only a ruling en banc by an expanded (eleven judges in the huge 9th Circuit) or full bench of the circuit court can overrule a prior circuit precedent, in addition, of course, to the Supreme Court, which can overrule circuit court decisions.  Some have argued, as the petition recently filed in Bostock argues, that Price Waterhouse and Oncale implicitly overrule those older precedents, including the case that the 11th Circuit cites as binding, Blum v. Golf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), a case from the old 5th Circuit.  (Congress subsequently split the 5th Circuit, separating off its eastern half to create a new 11th Circuit, which treats as binding old 5th Circuit precedents that have not been overruled en banc by the 11th Circuit.)  The 2nd Circuit ruling in Zarda specifically looked to Price Waterhouse and Oncale as well as the EEOC’s Baldwin decision to overrule several earlier panel decisions and establish a new interpretation of Title VII for the federal courts in Vermont, New York, and Connecticut.

Before the Zarda decision, the only circuit court to issue a similar ruling as a result of en banc review was the 7th Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).  At the time of Hively, two out of the three states in the 7th Circuit – Wisconsin and Illinois – already had state laws banning sexual orientation discrimination, so the ruling was most important for people working in Indiana.  A three-judge panel of the 8th Circuit, covering seven Midwestern states, most of which do not have state laws banning sexual orientation discrimination, will be hearing argument on this issue soon in Horton v. Midwest Geriatric Management, 2017 U.S. Dist. LEXIS 209996, 2017 WL 6536576 (E.D. Mo. Dec. 21, 2017), in which the U.S. District Court dismissed a sexual orientation discrimination claim in reliance on a 1989 decision by an 8th Circuit panel.

Bostock’s petition argues that circuit courts should not be treating as binding pre-Price Waterhouse rulings on this issue.  Under this logic, the 8th Circuit panel in Horton should be able to disclaim that circuit’s 1989 ruling, although it is more likely that an overruling would require an en banc hearing, unless, of course, the Supreme Court grants one of the new petitions and sides with the plaintiffs in these cases.

Altitude Express’s petition, by contrast, relies on the Supreme Court’s general disposition against recognizing “implied” overruling, arguing that the 2nd and 7th Circuits have erred in interpreting Title VII to apply to claims that Congress did not intend to address when it passed Title VII in 1964, and that neither Price Waterhouse nor Oncale has directly overruled the old circuit court precedents.  While the Altitude Express petition states sympathy, even support, for the contention that sexual orientation discrimination should be illegal, it lines up with the dissenters in the 2nd and 7th Circuits who argued that it is up to Congress, not the courts, to add “sexual orientation” through the legislative process.

A similar interpretation battle is playing out in the circuit courts of appeals concerning gender identity discrimination claims. However, plaintiffs are having more success with these claims than with sexual orientation claims because it is easier for the courts to conceptualize gender identity – especially in the context of transition – as non-conformity with gender stereotypes, and thus encompassed directly within the scope of Price Waterhouse.  Although only one circuit court – again the 7th – has gone so far as to embrace the EEOC’s determination that gender identity discrimination claims can be considered discrimination “because of sex” without resorting to a stereotyping theory, most of the courts of appeals that have considered the question have agreed that the stereotyping theory can be put to work under Title VII to allow transgender plaintiffs to pursue their claims in federal court, and many have also applied it under Title IX of the Education Amendments Act of 1972 to find protection for transgender students. If the Supreme Court were to take up the sexual orientation issue, a resulting decision could have significance for gender identity claims as well, depending on the Court’s rationale in deciding the case.

The timing of these two petitions, filed late in the Term and after all oral arguments have been concluded, means that if the Court wants to take up this issue, the earliest it could be argued would be after the new Term begins on October 1, 2018. As of now, nobody knows for certain what the composition of the Court will be when the new term begins.  Rumors of the possible retirement of Justice Anthony Kennedy (who will turn 82 in July), likely to be the “swing” voter on this as on all LGBT rights cases, are rife, and although Justices Ruth Bader Ginsburg (recently turned 85) and Stephen Breyer (turning 80 in August) have expressed no intentions of stepping down, they are – together with Kennedy – the oldest members of the Court.  Justice Clarence Thomas, a decisive vote against LGBT rights at all times, who was appointed by George H.W. Bush in 1991, is the second-longest serving member of the Court after Kennedy (a Reagan appointee in 1987), but Thomas, who was relatively young at his appointment, will turn 70 on June 23, and most justices have continued to serve well past that age, so occasional speculation about his retirement is probably premature.  With the exception of Jimmy Carter, who did not get to appoint any Supreme Court justices during his single term, every president in modern times has gotten to appoint at least two justices to the Court during their first (or only) term.  So there is considerable suspense as to the composition of the Court for its 2018-2019 Term.  If the Justices are thinking strategically about their certiorari votes on controversial issues, they might well hold back from deciding whether to grant these petitions until they see the lay of the land after the Court’s summer recess.

The Altitude Express petition was filed by Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y. The Zarda Estate is represented by Gregory Antollino and Stephen Bergstein, of Bergstein & Ullrich, LLP.  The Bostock petition was filed by Brian J. Sutherland and Thomas J. Mew IV of Buckley Beal LLP, Atlanta, Georgia.  The Trump Administration Justice Department sided with Altitude Express in the en banc argument before the 2nd Circuit in Zarda, while the EEOC sided with the Estate of Zarda.  The Bostock petition seizes on this divided view from the government representatives in the Zarda argument as yet another reason why the Supreme Court should take up the issue and resolve it once and for all.  Numerous amicus briefs were filed for the 2nd Circuit en banc argument.  The Bostock 11th Circuit appeal attracted little notice and no amicus briefs.

 

Supreme Court Issues Historic Marriage Equality Ruling

Posted on: June 26th, 2015 by Art Leonard No Comments

The Supreme Court ruled today that “same-sex couples may exercise the right to marry” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”  Writing for the Court, Justice Anthony M. Kennedy, Jr., grounded these marital rights in the 14th Amendment’s guarantee that no State may deprive any person of “liberty” without due process of law or deny to any person the “equal protection of the laws.”  He saw the claimed rights in this case as logical extensions of the rights recognized by the Court through his opinions in United States v. Windsor (2013) and Lawrence v. Texas (2003).   Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, 2015 U.S. LEXIS 4250 (June 26, 2015).  By fitting coincidence, the opinion was issued on the second anniversary of Windsor and the twelfth anniversary of Lawrence.

Kennedy was appointed to the Court by President Ronald Reagan in 1987.  Kennedy’s opinion was joined by the four justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (appointed by Bill Clinton) and Sonia Sotomayor and Elena Kagan (appointed by Barack Obama).  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all wrote dissenting opinions for themselves, and each of them also signed one or more of the other dissenting opinions.

The Court had granted petitions filed by the plaintiffs in cases emanating from the states of Ohio, Tennessee, Michigan and Kentucky.  In each of those states, federal district courts had ruled during 2014 either that state laws refusing to recognize same-sex marriages contracted in other states violated equal protection rights or that the refusals of the states to allow same-sex couples to marry violated due process and/or equal protection rights.  Those rulings were consolidated for appeal before the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which reversed the trial courts in an opinion by Circuit Judge Jeffrey Sutton.  Sutton held that the U.S. Supreme Court’s ruling in 1972 that a challenge to the Minnesota ban on same-sex marriage did not present a “substantial federal question” remained binding as precedent on lower federal courts, but went on to reject the plaintiffs’ constitutional arguments, opining that the question whether same-sex couples could marry or have their marriages recognized was one to be resolved through the democratic process, not through litigation.  In granting the plaintiffs’ petition to review that ruling, the Court ordered argument on two questions:  whether same-sex couples have a right to marry, and whether states are obligated to recognize same-sex marriages.  A majority of the Court has now answered both of those questions in the affirmative.

This outcome was widely predicted because of the Court’s behavior since October 2014, when it declined to review pro-marriage equality decisions by the 4th, 7th and 10th Circuits, thus lifting stays and allowing marriage equality rulings to go into effect in Virginia, Indiana, Wisconsin, Oklahoma and Utah, and eventually in all the other states in those circuits.  When the 9th Circuit ruled for marriage equality, the Supreme Court rebuffed every request by state officials to delay marriage equality rulings going into effect in that circuit, and subsequently refused to stay marriage equality rulings from Florida and Alabama, even though the 11th Circuit had not yet ruled on the states’ appeals.  The denial of the Alabama stay, weeks after the Court had granted review of the 6th  Circuit’s decision, decisively confirmed that there was a majority for marriage equality on the Supreme Court, to the consternation of Justice Thomas expressed in his dissent from the denial of Alabama’s staff petition.

The outcome being highly predictable, the main questions arousing speculation were which constitutional theories the Court would use to strike down the bans, and whether an additional member of the Court — most likely Chief Justice Roberts — would join the majority.  Roberts stayed put with his fellow conservative brethren.  Kennedy’s opinion took a route that could have been predicted based on his opinions in Windsor and Lawrence.  Kennedy’s preferred approach in gay rights cases (leaving aside his first such opinion, in Romer v. Evans, which is really sui generis) is to rely heavily on his broad conception of liberty protected by the Due Process Clause.

Kennedy began with a quick review of the situations of some of the plaintiffs, showing the deprivations they faced by not being allowed to marry or have their marriages recognized, and then presented a historical overview of the changing nature of marriage.  He wrote that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.  This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.”  After reviewing the growing recognition of gay rights by the courts, and referring to an amicus brief filed by the American Psychological Association, he wrote, “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”  This could be a key statement for a holding that sexual orientation is a “suspect classification” for equal protection purposes, but Kennedy never followed up along that line.

Instead, he turned to a due process analysis, and premised his conclusion on “four principles and traditions” which he said “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”  The first “is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  The second is “that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”  The third is “that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”  Finally, he wrote, “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

As to each of these four principles, Kennedy penned eloquent explanations that play into the themes he previously developed in his opinions in Windsor and Lawrence.  For example, he wrote, “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.”  Speaking about marriage’s “support” for the “two-person union,” he wrote, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”  After observing that “hundreds of thousands of children are presently being raised” by same-sex couples, he wrote: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

In explaining why the right to marriage is a fundamental right, Kennedy observed that “States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.  There is no difference between same- and opposite-sex couples with respect to this principle.”  As he had observed in 2003 when he wrote for the Court striking down the Texas sodomy law, he reiterated in this case.  “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”   Several times in the course of this part of his opinion, Kennedy referred to the “dignity” of same-sex couples being denied or disparaged by denying them the right to marry.

Turning to the Equal Protection Clause as an alternative source of the marriage right, Kennedy avoided any explicit pronouncement about whether sexual orientation discrimination claims should be subject to heightened scrutiny.  Actually, there are two different strands of equal protection theory: the classification strand and the rights strand.  Under the former, the Court asks whether the challenged law creates a classification that is “suspect” and thus subject to heightened or strict scrutiny.  Under the latter, the Court asks whether the challenged law discriminates concerning a fundamental right, and thus will be struck down unless the government proves a compelling justification.  Kennedy focused on the second strand.

Referring back to the Court’s earlier marriage cases, he wrote, “The equal protection analysis depended in central part on the Court’s holding that the law burdened a right of ‘fundamental importance.’ It was the essential nature of the marriage right, discussed at length in Zablocki v. Redhail, that made apparent the law’s incompatibility with requirements of equality.”  He emphasized the interconnectedness of the liberty/due process and equal protection theories, referring to his 2003 opinion in the Texas sodomy case, Lawrence v. Texas.  “Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State ‘cannot demean their existence or control their destiny by making their private sexual conduct a crime.’  This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Thus, in the ongoing dispute over whether the plaintiffs were claiming a new constitutional right of “same-sex marriage” or access to an existing fundamental right to marry, the Court in this case adopts the broader view.

Kennedy rejected the states’ argument that this decision was being made without sufficient “democratic discourse,” pointing out that same-sex marriage has been a topic of debate for decades, and asserting that “there has been far more deliberation than this argument acknowledges,” referencing referenda, legislative debates, “countless studies, papers, books, and popular and scholarly writings.”  Indeed, he pointed out, “more than 100 amici” had filed briefs with the Court presenting a wide range of perspectives on all sides of the issues.  And, he pointed out, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”  Having found that the marriage bans abridge fundamental rights, he found that judicial action was justified.  “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Kennedy also rejected the argument that the Court should refrain from this ruling because of possible adverse impact on traditional marriages, finding that the argument “rests on a counterintuitive view of opposite-sex couples’ decisionmaking processes regarding marriage and parenthood.  Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court devoted just one paragraph to the potential clash over religious liberty, asserting that the 1st Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  However, Kennedy shied away from opining about how the balance of rights might be struck in particular cases of the type that have arisen in recent years involving recalcitrant wedding photographers, florists, bakers and the like.

Kennedy briefly addressed the second question certified by the Court for argument, pointing out that all parties had acknowledged that if the Court found a right for same-sex couples to marry, the right to have those marriages recognized by the states would follow as of course.  “It follows that the Court also must hold — and it now does hold — that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

Kennedy concluded with a paragraph integrating the main points of his analysis in eloquent fashion:  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”    Thus, at the end, Kennedy recurred to the same principle he had invoked two years ago in striking down Section 3 of the Defense of Marriage Act: equal dignity.

Chief Justice Roberts penned a “who decides” dissent, along the lines previously articulated by Judge Sutton in the 6th Circuit opinion.  “The fundamental right to marry does not include a right to make a State change its definition of marriage,” he wrote, insisting that defining marriage was the state’s prerogative as matter of democratic process.”  He found “the majority’s approach” to be “deeply disheartening.”  His dissent ended up being slightly longer than Kennedy’s opinion for the Court, embracing simplistic notions of the history of marriage that were directly contradicted by the detailed amicus briefs submitted on behalf of the plaintiffs.  For example, he referred to a “universal definition” of marriage as the “union of a man and a woman,” thus ignoring the numerous cultures in which plural marriage has long been accepted.  Rejecting Kennedy’s very empathetic view of the plaintiffs’ claims, Roberts asserted, “There is, after all, no ‘Companionship and Understanding’ or “Nobility and Dignity” Clause in the Constitution.”  He raised the question whether the Court’s opinion would reopen the question of plural marriage, which is being litigated by fundamentalist Mormons, and insisted that Kennedy’s argument sounded more in moral philosophy than in law.

In conclusion, he wrote: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  Justices Scalia and Thomas joined his dissent.

Scalia, the self-proclaimed originalist, was in fine fulminating form, although perhaps less colorfully than in his dissent a day earlier in the case upholding federal tax credits under the Affordable Care Act.  He was quick to observe that the generation that wrote and adopted the 14th Amendment would not have seen it as creating a right for same-sex couples to marry, and under his jurisprudence that should end the matter.  But, as he had done in the Windsor and Lawrence cases, he sharply criticized the Court for short-circuiting political debate.  Noting the “unrepresentative” nature of the Court, he questioned the legitimacy of it making such a policy decision.  “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” he exclaimed.  “They have discovered in the Fourteenth Amendment a ‘fundamental rights’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”   He also criticized the opinion as being “couched in a style that is as pretentious as its content is egotistic.”  As he has frequently done in past dissents, he decried Justice Kennedy’s conception of liberty, concluding, “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”  Actually, many past decisions of the Court emanating from its conservative voices have already done that many times over.  One need only cite Bush v. Gore and Citizen’s United. . .   Thomas joined Scalia’s dissent.

Justice Thomas has long contested the Court’s entire history of substantive due process doctrine, so this case was just one more example for him of illegitimate decision-making.  He argued that refusing to let same-sex couples marry does not deprive them of any liberty, insisting that the reference to “liberty” in the due process clause should be restricted to its “original” meaning of restrictions on mobility.   Thus, the state restricts your liberty when it locks you up, but not when it refuses to let you marry.  He located the origins of this concept in Magna Carta, the 800-year old English document signed by King John in 1215 to settle disputes with the English nobility about royal prerogative, and then traced the concept through American law up to the time of adoption of the 14th Amendment.  “When read in light of the history of that formulation,” he wrote, “it is hard to see how the ‘liberty’ protected by the Clause could be interpreted to include anything other than freedom from physical restraint.”  Even accepting a broader meaning, he held that it should be restricted to “individual freedom from governmental action, not as a right to a particular governmental entitlement.”  He insisted that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”  Scalia joined Thomas’s dissent.

Finally, Justice Alito’s dissent rechanneled his dissent from two years ago in U.S. v. Windsor, quoting from it extensively, arguing that there were various different views of marriage and that it was up to the people, through the democratic process, to decide which ones to embrace through law.  “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” he insisted.  He particularly bemoaned the likelihood that this ruling would lead to the oppression of people who oppose same-sex marriage, predicting future disputes.  “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play,” he wrote.  “But if that sentiment prevails, the National will experience bitter and lasting wounds.”  Both Scalia and Thomas signed his opinion.

All the dissents sounded like rearguard actions seeking to provoke public discontent with the Court’s opinion.  But in that sense they are well within the tradition — at least the recent tradition — of Supreme Court dissenting opinions from the very polarized Court.  A 5-4 ruling may be bitterly argued, but it is no less a precedential holding of the Court than a unanimous  ruling.  Although there had been rumblings in the weeks leading up to this day that some state officials might try to avoid complying with a pro-marriage equality decisions, the immediate response of governors in the four states involved with this case seemed to be prompt, if reluctant, compliance with the Court’s decision.

A long list of attorneys participated in representing the various plaintiffs in this case, culminating in the presentations by three oral advocates at the Supreme Court — two representing the plaintiffs and one representing the Solicitor General as amicus curiae.  In the end, all of the nation’s LGBT litigation groups played a part, as did numerous groups who submitted amicus briefs to the Court, many of which were cited in the opinions.   One group among all others will be particularly affected by this ruling.  Evan Wolfson announced months ago that upon the achievement of marriage equality nationwide, his organization — Freedom to Marry — will wind up its affairs and cease to exist.

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9th Circuit Holds Sexual Orientation Requires Heightened Scrutiny in Gay Juror Case

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

A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled today in Smithkline Beecham Corp. v. Abbott Laboratories that a new trial has to be held because Abbott, the defendant in a civil suit involving claims about the pricing of HIV medications, used one of its “peremptory challenges” to exclude a gay man from the jury. The court found that excluding people from a jury because they are gay violates the Equal Protection Clause of the 14th Amendment, under the 1986 Supreme Court ruling in Batson v. Kentucky. As a necessary part of its ruling, the 9th Circuit panel concluded that sexual orientation discrimination claims are subject to “heightened scrutiny,” a doctrine that makes them more likely to succeed and that may have a significant impact on pending marriage equality cases in Nevada, Arizona and Oregon.

In Batson, the Supreme Court held that excluding a potential juror because of his race violated the 14th Amendment. The court explained that such discrimination in jury selection would “touch the entire community” because it would “undermine public confidence in the fairness of our system of justice,” and that proof of such discrimination was grounds for reversing a trial verdict and ordering a new trial. In a subsequent case, the Supreme Court extend Batson to discrimination based on sex, but indicated that “parties may exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.” Race is subject to “strict scrutiny,” and sex is subject to “heightened scrutiny.” In order to decide whether the jury strike in this case came within the Batson precedent, the 9th Circuit had to decide whether sexual orientation discrimination is subject to “heightened scrutiny.”

In past decisions, the 9th Circuit has rejected “heightened scrutiny” for sexual orientation discrimination claims, and normally a 9th Circuit panel would follow those precedents. But, in an opinion by Judge Stephen Reinhardt, the panel noted that the Supreme Court’s decision last June in United States v. Windsor has rendered the past 9th Circuit decisions obsolete. Even though the opinion for the Supreme Court by Justice Anthony M. Kennedy did not state explicitly what standard of review the Court was using in striking down Section 3 of DOMA, Judge Reinhardt asserted that the Windsor court was applying some form of heightened scrutiny in that case.

Reinhardt reached this result by a probing reading of Kennedy’s opinion, showing that what the Supreme Court actually did bore the hallmarks of a heightened scrutiny case. Under rational basis review, a statute would be presumed to be constitutional and would be upheld, despite its discriminatory effects, if the Court could hypothesize any rational justification for it. But the Supreme Court did not presume Section 3 to be constitutional, and paid no attention to the post-hoc justifications argued by former Solicitor General Paul Clement on behalf of a House of Representatives Committee. Instead, the Supreme Court focused on the legislative history of DOMA, which showed that it was enacted specifically to discriminate against gay people on grounds of moral disapproval. Justice Kennedy focused on Congress’s “avowed purpose” for enacting DOMA. “The principal purpose,” he wrote, “is to impose inequality, not for other reasons like governmental efficiency.” “The result of this more fundamental inquiry,” wrote Judge Reinhardt, “was the Supreme Court’s conclusion that DOMA’s ‘demonstrated purpose raised a most serious question under the Constitution’s Fifth Amendment.’ Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congress’s actual purposes. Windsor’s ‘careful consideration’ of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.”

Reinhardt also noted that the Windsor court put the burden on Congress to “justify disparate treatment of the group,” and under rational basis review, the burden is placed on the challenger to prove that there is no rational justification, not on the government to justify its discrimination. And Reinhardt pointed out that in rational basis cases, the court is “ordinarily unconcerned with the inequality that results from the challenged state action,” but that in Windsor, the Court expressed great concern about the inequality imposed on married same-sex couples by DOMA.

“Windsor refuses to tolerate the imposition of a second-class status on gays and lesbians,” wrote Reinhardt. “Section 3 of DOMA violates the equal protection component of the due process clause, Windsor tells us, because ‘it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.’ Windsor was thus concerned with the public message sent by DOMA about the status occupied by gays and lesbians in our society. This government-sponsored message was in itself a harm of great constitutional significance.” From this, Reinhardt concluded, “Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.” This, of course, is the hallmark of heightened scrutiny in equal protection cases. “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.”

In this case, Abbott had an interest in avoiding seating jurors that might be biased against it because it was being charged with improperly inflating the price of HIV medications whose patents it controlled. During the voir dire questioning of potential jurors, it became clear that one man was gay due to his references to his partner. The attorney for Abbott questioned him briefly, but elicited no answers that indicated any particular bias against his client. However, he asked to strike the juror. When the attorney for the other party objected, raising the Batson principle, the trial judge questioned whether Batson applied to the case or the circumstances, but asked the attorney whether he had any particular reason for seeking to exclude the juror. The attorney did not specify a reason, and was allowed to use a peremptory (unexplained) challenge to eliminate him from the jury. The 9th Circuit held that this was error. Since sexual orientation discrimination merits heightened scrutiny, the Batson rule applies and because it was clear that the juror was a gay man and, under the circumstances, Abbott’s counsel might entertain the view that gay men would be biased against his client, some valid justification was necessary to sustain the challenge to his jury service.

The California Supreme Court extended the Batson rule to gay jury challenges long ago for purposes of trials in the state courts, but this ruling by the 9th Circuit is the first to extend Batson to such challenges in federal courts. But the ruling is potentially much more consequential–first, because it applies broadly to all sexual orientation discrimination claims, not just juror challenges, and second, because of another case pending before the 9th Circuit and shortly to be argued, Sevcik v. Sandoval, a challenge to Nevada’s ban on same-sex marriage. In Sevcik, the district court, ruling before last year’s Windsor decision, rejected a challenge to the Nevada marriage ban, holding that the court was bound under the 1972 Supreme Court affirmance in Baker v. Nelson to hold that Sevcik had not presented a “substantial federal constitutional question” and that the state’s ban survived rational basis review. Windsor was decided after Sevcik’s appeal to the 9th Circuit was filed. Now the 9th Circuit has ruled that Windsor requires heightened scrutiny of sexual orientation claims. That surely forecasts a reversal in Sevcik, although it is not clear whether the 9th Circuit would remand the case to the trial court for reconsideration under the heightened scrutiny standard or whether the court of appeals would rule as a matter of law under that standard that the Nevada ban is unconstitutional. Either way, the 9th Circuit’s ruling should have immediate consequences for recently filed marriage equality lawsuits in Arizona, Idaho and Oregon, states which are also in the 9th Circuit, as those district courts will be bound to apply heightened scrutiny in deciding those cases.

Lambda Legal had an amicus brief in the case, co-authored by Shelbi D. Day, Tara L. Borelli, and Jon W. Davidson, working from the organization’s Western Regional Office in Los Angeles.