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Pennsylvania Superior Court Recognizes Pre-2005 Same-Sex Common Law Marriage

Posted on: April 18th, 2017 by Art Leonard No Comments

 Pennsylvania abolished common-law marriage by statute effective January 24, 2005, but provided that the statute should not be “deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.” After the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015, holding that same-sex couples have a constitutional right to marry, implicitly affirming Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), a trial court decision that was not appealed by the state, numerous trial judges in Pennsylvania have issued declaratory judgments recognizing common law marriages of same-sex couples that were contracted prior to January 1, 2005.  The outlier was a July 8, 2016, order by Judge John D. McBride of the Beaver County Court of Common Pleas in In re Estate of Stephen Carter, in which Judge McBridge refused to affirm an alleged common law marriage contracted in 1996 or 1997 by Carter and his surviving spouse, Michael Hunter, in Philadelphia.  On April 17, a unanimous three-judge panel of the Pennsylvania Superior Court provided the first appellate ruling in the state granting retroactive recognition to a same-sex common law marriage, reversing the Beaver County court in response to Hunter’s appeal, 2017 PA Super 104.

Writing for the court, Judge H. Geoffrey Moulton, Jr., found that McBride erred on both of the grounds of decision. The first was that because same-sex couples did not have the right to marry in Pennsylvania until the Whitewood decision in 2014, the two men could not have contracted a common law marriage prior to January 1, 2005.  The second was based on McBride’s finding that Hunter had at best established that the men intended to marry when it became legal to do so in Pennsylvania, which he deemed insufficient to establish a common law marriage, despite the evidence that the men exchanged rings, regarded themselves as spouses, lived together, and were regarded as spouses by members of their families.

Judge Moulton found that the trial court’s first ground had misconceived the effect of Whitewood and the U.S. Supreme Court’s subsequent rulings in U.S. v. Windsor and Obergefell v. Hodges.  “Together,” he wrote, “Windsor, Whitehead, and Obergefell teach that same-sex couples have precisely the same capacity to enter marriage contracts as do opposite-sex couples, and a court today may not rely on the now-invalidated provisions of the Marriage Law to deny that constitutional reality.  Consequently, because opposite-sex couples in Pennsylvania are permitted to establish, through a declaratory judgment action, the existence of a common law marriage prior to January 1, 2005, same-sex couples must have that same right.  To deprive Hunter of the opportunity to establish his rights as Carter’s common law spouse, simply because he and Carter are a same-sex couple, would violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”

Turning to the trial court’s second ground, Judge Moulton conceded that even prior to its legislative abolition, common law marriage had been difficult to prove, because of the insistence by Pennsylvania courts that the proponent of recognizing the marriage prove by a preponderance of the evidence that the purported spouses had expressed to each other a present intention to be married. He quoted from the most recent Pennsylvania Supreme Court ruling, Staudenmayer v. Staudenmayer, 714 A. 2d 1016 (Pa. 1998), where the court stated: “A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.”  However, continued the Supreme Court, “Because common law marriage cases arose most frequently because of claims for a putative surviving spouse’s share of an estate, however, we developed a rebuttable presumption in favor of a common law marriage where there is an absence of testimony regarding the exchange of verba in praesenti.  When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and (2) a reputation of marriage ‘which is not partial or divided but is broad and general,’ raises the rebuttable presumption of marriage.”

In this case, both ways of proving a common law marriage could be found based on the testimony presented to Judge McBride. Hunter recounted how he proposed marriage to Carter on Christmas Day 1996, giving him a diamond ring, asking if Carter would marry him, and Carter answering yes.  Two months later, on February 18, 1997, Carter gave Hunter a ring in return which was engraved with that date, and the men henceforth celebrated February 18 as their anniversary for the next 16 years, until Carter died tragically from injuries sustained in a motorcycle accident in April 2013, “less than two months before the United States Supreme Court’s landmark decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which struck down the provision of the federal Defense of Marriage Act (“DOMA”) defining ‘marriage’ as only between one man and one woman,” Judge Moulton commented.

After the men exchanged rings, they bought a house together with a joint mortgage, made mutual wills and other legal documents establishing their relationship, supported each other, held joint bank and investment accounts, and subsequently moved to the Pittsburgh area where they again jointly purchased a house. There was testimony from Carter’s nieces that they referred to Hunter as “Uncle Mike.”  It was easy based on the testimonial record for the Superior Court to conclude that McBride erred in basing his decision on one bit of evidence considered out of context, that Carter and Hunter had consciously decided not to go out of state to marry when it became possible for same-sex couples to marry elsewhere, since an out-of-state same-sex marriage would not be recognized in Pennsylvania at that time and they specifically planned to have a ceremonial wedding in their home state of Pennsylvania when that became possible.

This did not, in the view of the Superior Court, undermine the conclusion that they considered themselves married as of February 18, 1997, had continuously cohabited, and had held themselves out to the world as married from that date forward. “In sum,” wrote Moulton, “the evidence clearly established that Hunter and Carter, like countless loving couples before them, expressed ‘an agreement to enter into the legal relationship of marriage at the present time.’  Therefore, we conclude that Hunter proved, by clear and convincing evidence, that he and Carter had entered into a common law marriage on February 18, 1997.”  Where McBride went wrong was in failing to distinguish between ceremonial marriage and common law marriage.  The evidence on which he relied related to ceremonial marriage, and did not undermine the evidence of a common law marriage.

The court returned the case to the Beaver County Court of Common Pleas “for the entry of an order declaring the existence of a common law marriage between Hunter and Carter as of February 18, 1997.”

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.

Anti-Gay Justice Scalia Exits the Stage

Posted on: February 16th, 2016 by Art Leonard No Comments

With the death of Antonin Scalia the Supreme Court has lost its most outspoken anti-gay member.  Ever since taking his seat on the high bench in 1986, Justice Scalia voted consistently against gay rights claims, sometimes in the majority and sometimes in dissent, regardless of the factual context in which they arose.

Scalia was appointed to the Court by President Ronald Reagan shortly after the Court had decided Bowers v. Hardwick (1986), the notorious case in which it rejected by a 5-4 vote a constitutional challenge to Georgia’s law making gay sex a crime.  There is no doubt how he would have voted in that case, since he subsequently argued (in dissent) that it had been correctly decided and should be reaffirmed and followed.

The first LGBT rights case to come up after his appointment, during Scalia’s first term on the Court in 1987, was San Francisco Arts & Athletics v. U.S. Olympic Committee.  The Olympic Committee sued for an injunction to stop SFAA from holding its international athletic competition under the name “Gay Olympics.”  The Supreme Court ruled that the USOC had a right under a federal statute to veto the use of “Olympics” in connection with athletic competitions run by other organizations, and that the statute did not violate the 1st Amendment free speech rights of others who wanted to run their own “Olympic” games.  Scalia joined the majority opinion by Justice Lewis Powell.  The Court refused to entertain the argument that USOC’s discriminatory exercise of its veto – allowing many other organizations to use “Olympic” in their name unchallenged – raised a constitutional issue, as the Court found that USOC was not a governmental organization, and thus not bound by the Equal Protection requirement.  Justices William J. Brennan and Thurgood Marshall dissented in full, and two other justices  — Sandra Day O’Connor and Harry Blackmun — also opined that the case should be sent back to a lower court for further consideration of an equal protection challenge.

The Court ruled in 1988 that a gay man who had been discharged by the Central Intelligence Agency had a right to seek judicial review of his claim that he was a victim of unconstitutional discrimination.  Chief Justice Rehnquist wrote the decision for the Court.  Scalia, who normally voted in line with the Chief Justice, penned a lengthy dissent, arguing that Congress had insulated such CIA personnel decisions from judicial review and was constitutionally entitled to do so.

Scalia subsequently joined a dissent by Justice Anthony M. Kennedy in 1989 in Price Waterhouse v. Hopkins, a case in which a majority of the Court accepted the argument that an employer who takes adverse action against an employee because she fails to conform to gender stereotypes may be violating the sex discrimination ban in Title VII of the Civil Rights Act of 1964.  Justice Brennan’s opinion for a plurality of the Court influenced lower courts to adopt a broader approach to Title VII’s ban on sex discrimination, leading ultimately to provide protection to transgender plaintiffs and even some gay plaintiffs who can make a plausible claim that they encounter workplace discrimination due to gender stereotype non-conformity.  Although Justice Kennedy’s dissent, joined by Scalia, focused mainly on other issues in the case, it voiced skepticism about the “sex stereotyping” theory.

In 1996 Scalia “vigorously” dissented (to use his descriptive word) from the Supreme Court’s 5-4 ruling in Romer v. Evans, holding that Colorado Amendment 2 violated the equal protection rights of gay people.  Amendment 2 prohibited the state or its political subdivisions from adopting legislation that would protect gay people from discrimination.  The case provided Scalia with his first vehicle to accuse the Court of signing on to a gay rights agenda, because it was the first potentially wide-ranging pro-gay-rights decision to emanate from the Court.

“The constitutional amendment before us here is not the manifestation of a “‘bare . . . desire to harm'” homosexuals,” he wrote, refuting Justice Kennedy’s reasoning for the majority, “but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” The description of “seemingly tolerant Coloradans” who had voted overwhelmingly to enact Amendment 2 in the wake of a horrifyingly homophobic media campaign drew shocked guffaws from LGBT commentators.

He continued: “This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”  Scalia aligned the majority of the Court with the organized bar and the law school community, which had condemned anti-gay discrimination and moved to deny access to law school placement offices to discriminatory recruiters.  After summarizing Justice Kennedy’s rationale for the decision in sarcastic terms, Scalia insisted that by such reasoning “constitutional jurisprudence has achieved terminal silliness.”  He argued that the Court’s ruling was inconsistent with Bowers v. Hardwick and accused the Court of overruling that case without saying so.  If it was constitutional to make gay sex a crime, he asked, how could it be a violation of equal protection for a state to refuse to protect homosexuals from discrimination?

Pushing the point further, he wrote: “Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.”

He went on at length in a similar vein, ultimately accusing the Court of ruling based on politics rather than law, and arguing for the right of individuals who did not want to associate with homosexuals in their workplaces to refuse to employ them.

This dissent set the pattern for Scalia’s increasingly vociferous dissents as he found himself on the losing side in Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), the cases in which the Court struck down sodomy laws, the anti-gay Defense of Marriage Act, and state laws against same-sex marriage.  These dissents were littered with colorful phrases one would not expect to find in the normally staid volumes of Supreme Court opinions, accusing Justice Kennedy of “argle-bargle” and asserting that he would be so ashamed to sign on the logic of the Obergefell decision that he would put his head in a paper bag.

Scalia’s dissents in these cases proved to be prophetic, probably to his dismay. He accused the Court of overruling Bowers v. Hardwick sub silentio in Romer, and the Court subsequently did so explicitly and emphatically in Lawrence.  He accused the Court of opening up the path to same-sex marriage in Lawrence, and exactly ten years later the Court, citing Lawrence, struck down the federal ban on recognition of same-sex marriages in Windsor.  In his Windsor dissent, Scalia accused the Court of providing a road-map for lower courts to strike down state bans on same-sex marriage, predicting that the issue would be back before the Court in two years.  Precisely two years later, the Court struck down such bans in Obergefell, over a hysterical Scalia dissent.  Not surprisingly, many lower court judges cited and quoted from Scalia’s dissents to support their rulings striking down same-sex marriage bans.

Throughout these dissents, Scalia bemoaned the Court’s weakening of the ability of legislative majorities to codify their moral judgments in law, detesting the moral relativism exhibited by Kennedy’s opinions exalting private morality above public morality as a matter of individual liberty protected by the Constitution.

When the marriage equality cases arrived at the Court’s door, Scalia fought a rear-guard action to try to keep lower court marriage equality rulings “stayed” until the Supreme Court could decide the cases, perhaps holding out hope that Justice Kennedy was not ready to extend the Windsor decision further, joining dissents by Justice Clarence Thomas, who sought to preserve the anti-marriage status quo as long as possible, even after the Supreme Court had denied review to several pro-marriage equality court of appeals rulings and agreed to review the one adverse ruling out of the 6th Circuit.

Scalia did enjoy some victories along the way after Romer v. Evans, however.  In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, he joined a unanimous Court in striking down the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston St. Patrick’s Day Parade were required under a state civil rights law to allow an LGBT group to participate in the event.  In Boy Scouts of America v. Dale, he joined a 5-4 majority in striking down the New Jersey Supreme Court’s ruling that the Boy Scouts did not enjoy a 1st Amendment right to exclude openly gay men from leadership positions in violation of the state’s civil rights law.  In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., he joined Chief Justice Roberts’ opinion for the unanimous Court in rejecting a constitutional challenge to the Solomon Amendment, a provision denying federal funding to law schools that were refusing to allow military recruiters on campus due to the Defense Department’s anti-gay policies, reversing a contrary decision by the 3rd Circuit Court of Appeals.

Scalia joined dissents in several other cases where the Court affirmatively addressed issues of concern to the LGBT community.  In Bragdon v. Abbott, he joined a dissent by Chief Justice William Rehnquist from the Court’s conclusion that a woman with HIV-infection could asserted a discrimination claim under the Americans with Disabilities Act against a dentist who refused to provide treatment to her in his office.  In Christian Legal Society v. Martinez, a 5-4 ruling, he joined a dissent against Justice Ruth Bader Ginsburg’s majority opinion, which held that the University of California Law School could refuse to extend official recognition to a student group that explicitly excluded “homosexuals” from its membership on religious grounds.  He was, of course, a frequent dissenter in cases upholding women’s right to terminate their pregnancies as part of their liberty under the Due Process Clause, in a key decision – Planned Parenthood v. Casey – writing in dissent that the Court’s support for abortion rights was inconsistent with its upholding of laws against “homosexual sodomy” in Bowers v. Hardwick.

Sometimes, however, Scalia wrote opinions that might prove useful to gay litigants, although their interests were not directly involved in the case before the Court. In Employment Division v. Smith, he wrote for the Court that individuals could not claim a broad right under the 1st Amendment’s protection for free exercise of religion to refuse to comply with general state laws because of their religious objections.  Although that decision spurred the passage of federal and state statutes providing some protection for religious dissenters, the degree to which such statutes would shield employers, landlords or businesses serving the public from discrimination charges remains hotly contested, and so far many courts have ruled against recalcitrant businesses that had refused to provide goods or services for same-sex weddings.  Scalia’s opinion in Smith was cited in some of these cases to reject the constitutional free exercise claims raised by the discriminators.

In another case, Oncale v. Sundowner Offshore Services, Scalia wrote for a unanimous Court that same-sex workplace harassment might violate Title VII of the Civil Rights Act if the victim was singled out for harassment because of his sex. This case has also proved useful to some gay male litigants combatting workplace harassment by male co-workers, and Scalia’s comment that a statute could be interpreted to address “comparable evils” to those envisioned by the legislature has proved useful to the Equal Employment Opportunity Commission as it has moved to apply Title VII to discrimination claims brought by gay and transgender people.  One doubts that this was Scalia’s intent in penning the phrase, however.

In the Supreme Court’s only ruling to date on transgender rights, Farmer v. Brennan, Scalia joined an opinion for the Court by Justice David Souter holding that prison officials could be sued under the 8th Amendment for failing to take steps to protect transgender inmates from known risks of harm while incarcerated.

Justice Scalia’s main impact on the Court’s jurisprudence in general was to lend a degree of respectability to certain theories of constitutional and statutory interpretation that had been rejected or minimized in the past, but he was never able to persuade a stable majority of the Court to fully embrace his notion that the Constitution is “dead” – in the sense that its meaning was fixed at the time its provisions were adopted and cannot change in light of new circumstances – or that statutes should be construed by reference to their language without any regard to what legislators said they intended to accomplish by enacting them – so-called “legislative history,” for which he had open disdain. However, when he was assigned to write for the majority, he managed to work these ideas into his opinions to some extent, giving lower courts a basis to invoke them from time to time.

Justice Scalia departed from Supreme Court tradition by engaging in a substantial amount of public speaking.  In the past most justices avoided speaking publicly about substantive legal issues, lest they cross an ethical line and signal their views about cases pending before the Court.  Such concerns did not seem to bother Scalia, who said publicly on several occasions what he subsequently said officially in court opinions concerning claims by gay people for constitutional protection, which he invariably found to lack merit.  Homosexuality is not mentioned in the Constitution, which struck Scalia as the end of the matter, and he repeatedly argued that “the people” were entitled to vote against the interest of LGBT people as a matter of “democracy.”

After almost thirty years of service, he will be missed from the Court by many, but not all for the same reasons.

Marriage Equality Efforts Chugging Along Nicely

Posted on: September 11th, 2013 by Art Leonard No Comments

The lack of any big LGBT court decision over the past week or so, together with the beginning of the Jewish High Holy Days, explains why I haven’t posted anything on this blog since August.  But things have definitely not been standing still in the ongoing marriage equality campaign.

The biggest deal has probably been the gradual rolling out of federal constitutional recognition for same-sex marriages in the wake of U.S. v. Windsor, the June 26, 2013, Supreme Court decision striking down Section 3 of the Defense of Marriage Act, which had adopted for the federal government a strictly different-sex definition of marriage.  The Court held that a federal policy refusing recognition to same-sex marriages contracted under state law violated the “equal liberty” guaranteed by the 5th Amendment.  Whether that was essentially a due process holding or an equal protection holding will be debated among legal scholars and lower courts for some time to come.   It sounds to me like a conflation of the two, so it can be construed both ways, also taking into account the federalism concerns that Justice Anthony Kennedy mentioned in his opinion for the Court but did not explicitly rely upon in making the decision; this, of course, despite Chief Justice John Roberts’ assertions to the contrary, which were deftly rejected by Justice Antonin Scalia.  Scalia insisted that the Court’s eschewal of having decided the underlying question whether same-sex couples have a constitutional right to marry was all for show, and that Kennedy’s opinion gave lower courts a guidebook for ruling in favor of marriage equality litigants.  A handful of trial court decisions since June 26 would tend to confirm this.

Most prominently, a federal district judge in Ohio has now twice ordered state authorities to recognize same-sex marriages contracted elsewhere, and several state trial judges have ordered county clerks in New Mexico to issue marriage licenses to same-sex couples, albeit premising those orders on state constitutional and statutory construction.  (New Mexico has neither amended its constitution nor its marriage laws to expressly prohibit same-sex marriages, and the operative provisions of the marriage statute may lend themselves to gender-neutral interpretation.)  The Ohio case is particularly interesting in that the judge found no cause to evaluate the effect of Section 2 of DOMA, not addressed by the Supreme Court in Windsor.  Section 2 purports to relieve states from any obligation to extend “full faith and credit” to same-sex marriages contracted elsewhere.  The judge premised his ruling instead on the 14th Amendment’s Equal Protection Clause, finding no rational basis for Ohio to refuse to recognize same-sex marriages when there is precedent that the state recognizes different-sex marriages contracted elsewhere that could not have been contracted in Ohio due to consanguinity or age.

There was also a pair of decisions by federal judges in Michigan relying upon Windsor in disputes concerning same-sex couples, one over state employee domestic partner benefits, the other in a suit challenging the lack of second-parent adoptions, in which the judge invited the parties to put the constitutionality of Michigan’s same-sex marriage ban directly in play.  These two Michigan rulings were on pretrial motions and did not go to the ultimate merits of either case, but strongly suggested, in light of Windsor, among other precedents, that plaintiffs would probably prevail.  A federal judge in Pennsylvania also ruled in a pending employee benefits dispute, depending upon the demise of Section 3 of DOMA to rule that a same-sex marriage should be recognized for purposes of a federally-regulated employee benefit plan providing benefits to the surviving spouse of an employee.  The case brought the interesting complication that the couple married in Canada and resided in Chicago, where the deceased was a partner in a Pennsylvania-based law firm’s Chicago office.  Although Illinois is not yet a marriage equality jurisdiction, the court found that the state’s Civil Union Act would treat this Canadian marriage as confering spousal status, through a somewhat strained interpretation of the Illinois law.  The decedent’s parents, who initially supported appealing the court’s decision, then changed their minds, to we will not be getting an appellate ruling on this case.

The New Mexico developments led Republican legislators to intervene, as well as the state’s organization of county clerks, and the state’s Supreme Court, which at first fought shy of getting involved, has changed course and announced it will hear oral arguments from various marriage equality litigations on October 23, with the idea of issuing a definitive ruling that could have statewide effect.  (As of this writing, eight county clerk offices were issuing licenses, mostly in response to local court orders.)  The state’s attorney general has announced support for the trial court rulings, leaving it to Republican legislators to make the argument to the Supreme Court that the existing legal regime is rational in excluding same-sex couples from marriage, which becomes a difficult argument in light of Windsor.

The Treasury Department and Internal Revenue Service gave a big kick to federal marriage recognition by announcing that lawfully married same-sex couples would be recognized as married for all federal tax purposes, even if they lived in states that did not recognize their marriages.  Some other federal agencies were less expansive in their approach, such as the Labor Department, which announced that same-sex spouses would be recognized under the Family and Medical Leave Act, but fought shy of articulating a position on applicability to employers in states that don’t recognize same-sex marriages.  Initially, the Veterans Affairs Department claimed to be limited by statutory language from recognizing same-sex marriages, but then a federal judge in California ruled that the relevant statutory language suffered the same constitutional defects as Section 3 of DOMA, and Veterans Affairs promptly came around.  The Defense Department had announced directly after Windsor that it would come up with a recognition policy, and put the policy into effect on September 3, retroactive to June 26, with subsequent reports that implementation seems to be going smoothly.  DoD will recognize same-sex marriages lawfully contracted, regardless where the service members are living. A soldier recently married to her partner in New Mexico with a license from one of the county clerks there has just obtained the relevant military spousal ID card for her wife, after some initial hesitation by local military officials who were concerned that the New Mexico licenses might yet be held invalid by the state’s Supreme Court.  National Guard members have encountered problems when based in states that don’t recognize same-sex marriages.  Right out of the box, Guard officials in Texas, Mississippi and Louisiana announced that they would not process applications for spousal ID cards and benefits for their married gay members, although governors in some other states — most notably Arkansas and Virginia — reflecting that federal money pays most of the costs of National Guard operations and they are supposed to follow federal Defense Department policies, indicated they would comply.   Guard members in the resistant states were told that they should apply for the benefits to federal authorities.  Lawsuits seem likely here.

In addition to a New Mexico clerk who started off the “civil disobedience” by issuing licenses without a court order, a county official in Montgomery County, Pennsylvania, also began issuing licenses, prompting a lawsuit from the state Health Department on top of the marriage equality lawsuit already filed against the state by the ACLU (for which the attorney general announced she would not defend the state’s existing marriage exclusion) .  Of course, there were already lawsuits pending in several other states — Hawaii, Nevada, New Jersey — and the ACLU was moving in North Carolina to expand an existing second-parent adoption suit to encompass marriage equality claims.  New lawsuits were also filed in Arkansas, Virginia, South Carolina with others expected. . .  It appears that litigation over marriage equality will stay in the headlines for the foreseeable future until some case makes it to the U.S. Supreme Court were a final resolution will be sought.

From mid-October to early November 2013 may mark the next major wave of developments leading to an actual expansion of marriage equality to new states.  The governor of Hawaii has called a special session of the legislature to consider a marriage equality bill that was introduced at his request in August.  Since he had previously announced that he would not call a special session unless passage looked likely, that was a good sign.  A major incentive for the Hawaii legislature to act is the pending 9th Circuit consideration of a marriage equality case now on appeal.  By passing the bill — which includes religious exemption language calculated to satisfy those who are alarmed that religious organizations might be compelled to violate their beliefs — the legislature would forestall the possibility that a federal court will just order them to allow same-sex marriages without having enacted such religious liberty “safeguards.”  Perhaps the same possibility will motivate Illinois House members, who may be asked to vote on the pending S.B. 10 (already approved by the Senate earlier this year) during the “veto session” of the legislature scheduled during the same October-November time period.  A summary judgment motion was argued during August in the pending New Jersey marriage equality case; once again, New Jersey legislators could forestall the possibility of a court order by voting to override the governor’s veto of a bill they had previously passed, which also contains religious exemption language.  Barring that, however, a Superior Court ruling in favor of marriage equality would undoubtedly be appealed by the state government, so resolution before the end of this year would not come from the courts.

If Justice Scalia is correct in predicting that lower federal courts and state courts are going to seize upon language in Windsor to find a constitutional right for same-sex couples to marry, it would make sense for all state legislatures to get out in the field and enact marriage equality statutes incorporating whatever measures they deem suitable for anticipating possible classes over religious liberties.  While these exemptions will themselves probably face some court challenges, depending how broadly they are written and administered, it would seem to be a bad strategy for legislatures to ceded this battleground to the courts in advance, and leave to chance judicial protection for religious liberty rights in the wake of an appellate ruling requiring them to allow same-sex couples to marry.

The current scorecard:  LGBT news blogger Rex Wockner, trying to keep track of marriage quality jurisdictions, provides this data for the United States:  Current marriage equality jurisdictions are Massachusetts, California, Connecticut, Vermont, Iowa, New Hampshire, Washington DC, New York, Maine, Maryland, Washington State, Delaware, Rhode Island, Minnesota, 8 counties in New Mexico, and four Native-American tribes.  As to other countries, Wockner now lists the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Iceland, Portugal, Denmark, France, Brazil, Uruguay, New Zealand, and England and Wales (to be implemented between now and mid-2014), and several states in Mexico, including the capital district.

Implementing the Windsor Decision

Posted on: July 12th, 2013 by Art Leonard No Comments

Under U.S. v. Windsor, Section 3 of the Defense of Marriage Act is unconstitutional and we are left with no broadly applicable federal statutory definition of marriage.  What we have are 13 states and the District of Columbia, which now grant marriage licenses to same-sex couples, and several other countries (including neighboring Canada) in which such licenses are also available.  At this point, there are thousands of same-sex couples living in the United States who are married, although some portion of them are living in states that do not recognize their marriage.  The question now is how these same-sex couples are to be treated by the federal government.

The quick response of the Obama Administration has been to say that for certain purposes, it is clear that the federal government will treat them as married regardless where they are living.  For example, the Office of Personnel Management has moved quickly to made spousal benefits available to same-sex spouses of federal employees in the executive branch, the personnel offices of both houses of Congress have done the same, presumably judicial branch employees, whose benefit plans are also administered through OPM, will also fall into line.  The Defense Department has indicated that military personnel with same-sex spouses will also be treated the same as married personnel with different-sex spouses.  More complicated questions arise about various federal program that have, either by virtue of statutes, regulations, or customary practices, determined the marital status of people based on where they are domiciled, and federal programs governed by statutes or regulations that either expressly or by implication extend only to different-sex married couples.

My response to this situation is to argue, first, that any existing statute, regulation or policy that might be construed to treat same-sex married couples differently should be considered presumptively unconstitutional under Windsor unless there is an independent policy justification for such treatment.  And I would argue that in spite of Justice Kennedy’s failure in his opinion for the Court to specify the level of judicial review he was applying to determine whether Section 3 was unconstitutional, it was clearly something other than minimalistic rational basis review.  As in Romer and Lawrence, it is hard to make sense of Windsor as a matter of legal reasoning without characterizing the judicial review in these cases as not being so deferential as the courts normally are when it comes to reviewing economic regulations, for example.  This would mean that some burden would be placedon the government to justify differential treatment by reference to non-discriminatory policy concerns.

I would make a further argument, going to the issue of whether married same-sex couples living in states that don’t recognize their marriage are entitled to federal recognition.  We are one country.  True, we are a democratic republic under which many powers and prereogatives are preserved for the states, and this federalism concept actually played a role in the Windsor decision.  Justice Kennedy emphasized the traditional role of states in deciding who could marry as being improperly invaded by Congress when it decreed a second-tier status  for same-sex marriages authorized by the state, by denying them all federal benefits.  On the other hand, one may argue, if a marriage was lawful where it was contracted, then the federal government should recognize it wherever that married couple ends up living or working or traveling, otherwise there is a significant undermining of the effectiveness of federal law.

Here I may seem to be borrowing a leaf from the book of DOMA’s defenders,who argued that DOMA was justified as establishing uniformity nationwide for federal benefits eligility by adopting one nationwide federal marriage definition.  If so, then so be it.  Why should a same-sex couple who marry in New York and eventually retire to Florida be denied the full benefits of the Social Security system because Florida refuses to recognize their marriage? 

The Respect for Marriage Act, now pending in both houses of Congress, would quickly resolve this problem by establishing the “place of celebration” rule as a uniform federal  rule for determining whether a marriage is valid for purposes of federal law. But I would argue that anything other than a “place of celebration” rule would raise serious equal protection concerns under the 5th Amendment, and that to avoid litigation, the Obama Administration should adopt it as the universal rule for determining eligiblity for federal benefits and any obligations imposed on married couples under federal law.  Why should a high federal official who lives in Virginia but married a same-sex partner in Maryland or D.C. have any less of an ethical obligation regarding conflicts of interest and disclosure of financial resources than such an official who lives with her spouse in Maryland or D.C.?  Why should a same-sex couple married in California but living in Arizona be deprived of whatever benefit they might derive from filing federal income taxes as a married couple (and, conversely, why should the federal government have to forego whatever financial benefit it would derive by application of the federal “marriage penalty” to those same-sex married couples living in Arizona whose combined income is high enough to generate the extra taxes due)?

I think we should be giving Windsor a broad reading to make presumptively unconstitutional any unequal treatment of same-sex married couple for any purpose of federal law.  And I wonder whether anybody would have Article III standing to challenge a decision by the Obama Administration to do that?  I recognize that legal challenges would probably be a secondary concern for the administration, which might be more worried that an adverse reaction to such a stance by Congressional Republicans would make it even that much harder than it is now to achieve any substantive legislation?   Would Republicans hold the next federal budget hostage to a provision barring the government from spending any money for benefits to same-sex married couples residing in states that don’t recognize their marriages?  I wouldn’t put it past them, even though such legislation would face the same constitutional infirmities as DOMA, and would certainly be open to attack in federal court by same-sex couples who would be deprived of benefits as a result.

 

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.

Merits Briefs in Supreme Court Marriage Cases Make Heavy Federalism Pitch

Posted on: January 24th, 2013 by Art Leonard No Comments

On January 22, attorneys defending against constitutional challenges to California Proposition 8 and Section 3 of the federal Defense of Marriage Act filed their briefs on the merits with the United States Supreme Court. Links to the briefs can be found on the Supreme Court’s website: click on the Docket box on the left side of the site and there is a link to the special page set up for these cases (Hollingsworth v. Perry; United States v. Windsor).
Both briefs struck me as extremely well written and well argued, in light of the enactments that the attorneys had to defend in these cases. In Hollingsworth v. Perry, the proponents of Proposition 8 – which inserted into the California Constitution a provision that only a marriage between one man and one woman would be valid or recognized in California – are appealing a ruling by the 9th Circuit Court of Appeals that the enactment of Proposition 8 violated the 14th Amendment’s Equal Protection Clause by withdrawing from same-sex couples, without any rational basis, a right to marry that had previously been recognized by the California Supreme Court. Their counsel of record is Charles Cooper, a leading conservative appellate advocate who served in the Reagan Administration. In United States v. Windsor, a majority of the Bipartisan Legal Advisory Group of the House of Representatives argues that Congress did not violate the equal protection requirements of the 5th Amendment in 1996 when it adopted Section 3 of the Defense of Marriage Act, which provides that for all purposes of federal law only different-sex marriages will be recognized. Their counsel of record is Paul Clement, who was Solicitor General of the United States, representing the government in the Supreme Court, during George W. Bush’s second term. (In an interesting irony, co-counsel for the Respondents in the Prop 8 case is Ted Olson, who was Solicitor General during George W. Bush’s first term.)
Hollingsworth and his co-petitioners were the people who formed ProtectMarriage.com, an organization that proposed the California initiative measure (anticipating that the California Supreme Court might rule in favor of same-sex marriage in a then-pending case), secured the signatures to put it on the ballot, and coordinated the campaign for its enactment. When the American Foundation for Equal Rights filed suit challenging the measure in 2009, they sued the governor and other state officials, but none of those defendants was willing to argue in support of Proposition 8, so the district court allowed the Hollingsworth group to intervene as defendants. They lost, as District Judge Walker found that same-sex couples have a constitutional right to marry. The 9th Circuit affirmed Judge Walker’s ruling that Proposition 8 was unconstitutional, but on the purportedly narrower ground that California’s voters had no rational basis to rescind the right to marry. A subsidiary issue in the case was whether the appellants had constitutional standing to bring the appeal, inasmuch as the named defendants in the case – the governor and other state officials – declined to appeal.
In its order granting the petition for review, the Supreme Court revived the standing issue, so the questions before the Court are two: Does the 14th Amendment prevent California from from defining marriage as solely between a man and a woman, and do the proponents of Proposition 8 have proper standing to appeal the district court’s ruling? The January 22 brief tackles both questions.
While the case was pending before the 9th Circuit, that court asked the California Supreme Court for an advisory opinion on the question whether initiative proponents are authorized under California law to represent the state’s interest in defending its constitutional provisions against a federal court challenge. The California Supreme Court answered that question affirmatively, leading the 9th Circuit to find the standing requirement to be met. The brief argues in support of the 9th Circuit’s conclusion on standing, pointing out that the Supreme Court has in the past recognized the right of a state to determine who, apart from state officials such as the Attorney General, is authorized to represent the state’s interest in a case where the state does not itself undertake such representation. Of course, the California Supreme Court’s opinion only dealt with California law. The question whether the Proponents of Proposition 8 have appellate standing in federal court is a matter of federal law, and it is likely that the American Foundation for Equal Rights, representing the challengers of Proposition 8, will have strong counter-arguments to make when their brief is filed next month.
Moving on to the main question, the brief pitches the case as being about federalism – the division of authority between the state governments and the federal government. Traditionally, the question of who could marry has been considered a question of state law and, as the brief argues, is a policy question that has traditionally been determined through the legislative process. California’s constitution allows the people to legislate directly by initiative, both to enact statutes and to amend the state constitution. An initiative to ban same-sex marriage by statute was actually passed in California more than a decade ago, and that statute was declared unconstitutional under the state constitution by the California Supreme Court in 2008, leading to the period of same-sex marriages in California. Proposition 8 countered that ruling by enacting a constitutional amendment. The brief argues that this illustrates the democratic process at work, and argues that the federal courts should not interfere with this process by recognizing a federal constitutional right to same-sex marriage. The brief points out that if the Court rejects the challenge to Proposition 8, gay rights groups in California have already indicated that they will try to put an initiative on the ballot to repeal the Prop 8 amendment, a further example of the political process at work.

But they don’t rest only on the federalism point. They also argue, as they did to the 9th Circuit, that California has a rational basis for treating same-sex and different-sex couples differently. Indeed, they argue – as the brief filed in the DOMA Section 3 case also argues, that because of the procreative capacities of different-sex couples and the lack of direct procreative capacities of same-sex couples, these couples are not “similarly situated,” and thus present no equal protection issue from differential treatment. They argue that the equal protection clause is only implicated if “similarly situated” people are treated differently, citing prior Supreme Court cases as authority.
Even if the Court finds that there is an equal protection issue, they argue, it would be rational for California to distinguish between different-sex and same-sex couples, in light of the long history of marriage as exclusively a heterosexual institution. They repeat the “channeling procreation” argument that proved a winner for opponents of same-sex marriage in some of the other state supreme courts, including New York, Maryland, and Washington. Ironically, in each of those states where the highest court rejected same-sex marriage claims, the legislatures ultimately came around to enacting marriage equality laws, and in Maryland and Washington, those laws were ratified at the ballot box this past November. These outcomes would be cited by the Proponents as an example of why the Supreme Court should abstain here and allow the political process to work.
They are certainly cited by Paul Clement in his brief for the House Committee in the DOMA case. As in the Prop 8 case, the defenders of DOMA have adopted federalism as their main argument. They contend that Section 3 of DOMA was a rational response by Congress to the unfolding situation in the mid-1990s after the Hawaii Supreme Court ruled in 1993 that same-sex couples might have a right to marry under the Hawaii constitution. DOMA was passed just as the Hawaii case was going to trial. Some commentators were suggesting that if the Hawaii courts ruled for same-sex marriage, same-sex couples from around the U.S. could go to Hawaii, marry, and demand recognition of their marriages from their home states and from the federal government. The issue became embroiled with the 1996 federal elections, as potential presidential and congressional candidates rushed to take positions against same-sex marriage, as public opinions polls showed overwhelming opposition to same-sex marriage by the public. Congress’s response in DOMA was that states would not be required under federal law to recognize same-sex marriages contracted in other states, and that the federal government would not recognize them for any purpose.
The brief filed on January 22 argues that this was a rational, tempered response to the situation based on federalism concerns, under which the states as sovereign bodies would retain control over the definition of marriage within their borders and the federal government could maintain national uniformity for the application of federal law by adopting the traditional definition of marriage then in effect in every state. The brief argues that the Constitution does not take any position on the definition of marriage, leaving states free to define it however they like for purposes of state law and leaving the federal government to define it for federal purposes. Customarily the federal government has treated as married people who are lawfully married under the laws of their state, but the brief argues that there is no constitutional requirement for this, and that Congress has at times adopted a particular definition of marriage, most notably in some provisions of the tax code. The brief contends that putting the traditional different-sex definition of marriage into federal law was consistent with Congress’s understanding of what it was doing when it passed the hundreds of different statutes that take marital status into account for purposes of federal benefits, rights, and entitlements, and that Congress could rationally anticipate that if some states adopted same-sex marriage, the lack of a uniform federal definition might lead to administrative confusion, inequities, and uncertainties, as well as creating overnight new classes of beneficiaries for federal benefits that could impost significant costs.
The brief also directly takes on the 2nd Circuit’s ruling that DOMA Section 3 should be reviewed under the “heightened scrutiny” standard, which would put a higher burden of justification on the government in defending the law. Making essentially the same argument that Cooper made in the Prop 8 brief, Clement argues that same-sex and different-sex couples are not similarly situated for purposes of an equal protection analysis, and that Section 3 does not directly discriminate on the basis of sexual orientation, although he acknowledges that Section 3 adversely affects gay people by excluding same-sex married couples from federal recognition.

The Supreme Court has traditionally focused on four factors in deciding whether heightened scrutiny applies in particular case: whether the disadvantage persons lack political power, whether the characteristic at issue is relevant to the government’s legitimate interests, whether the characteristic is “immutable” (beyond the individual’s control), and whether there is a history of discrimination against the persons disadvantaged by the challenged law.
Clement argues that recent history shows that gay people are not politically powerless. Indeed, reciting recent political history, he claims just the opposite. “In short,” argues the brief, “gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” The brief contends that gay people have gotten to the point where they can effectively contend in the political and legislative process and don’t need the assistance of heightened scrutiny by the courts to protect their interests. He also contends that there is not actually a long history of discrimination against gay people by the federal government, citing gay historians to the effect that most overt discrimination dates back to the early 20th century. He cites historians who contend that the concept of “the homosexual” is of relatively recent vintage, dating only to the mid-19th century, and so anti-gay discrimination does not have the ancient roots of racism and sexism. This conveniently overlooks the traditional English capital punishment for “sodomites,” Biblical injunctions for stoning, and host of horrors. (Anybody know where the label of “faggots” came from? Burning gays alive at the stake in medieval times.) So much for ancient roots of discrimination…
As to the “legitimate” interest of government in distinguishing between same-sex and different-sex couples, Clement’s brief channels the same arguments as the Prop 8 brief about procreation.
Reading these briefs, one is struck by what is omitted as well as by what is included. Neither brief goes in for gay-bashing. Neither brief contends that the people of California or the 1996 Congress could enact a discriminatory rule on marriage out of moral disapproval of homosexuality. Neither brief contends that gays are inadequate as parents. They are both carefully written to project a matter-of-fact tone about rational decision-making.
What they leave out – what is, indeed, surprisingly absent from an argument about the right to marry — is any reference to love and affection as having anything to do with marriage. Indeed, both briefs suggest that marriage is about children, not about the spouses, and that the great “danger” of “redefining” marriage to be “genderless” would be to make the prime focus on the marital partners instead of the family. Neither brief acknowledges the substantial percentage of same-sex couples raising children and the ways in which exclusion from marriage may be harmful to their children, instead harping on studies showing the disadvantages incurred by offspring of unmarried women who are raised without a father in the picture. Neither brief has anything to say about how having a legally-recognized marital relationship contributes to the well-being of the partners, or why same-sex couples shouldn’t enjoy the same well-being as different-sex couples.
Both briefs embrace an anachronistic view of the family that treats as virtually irrelevant the huge structure of legal rights and responsibilities attendant to modern marriage in America, paring the institution down to the rudimentary essentials of marriage in the pre-modern state. In other words, they are appealing to the “originalists” on the Court, as Cooper makes clear in his brief by expressing incredulity that same-sex couples would contend that the generation that enacted the 14th Amendment in 1868 intended to confer the right to marry on same-sex couples. Those members of the Supreme Court who regard the 14th Amendment as establishing general concepts of fairness and equality rather than a specific image based on mid-19th century life will, one hopes, reject this view, and Justice Anthony Kennedy, the “swing voter”, would seem to reject it as well in his concluding statement in Lawrence v. Texas, albeit in the context of the due process clause: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment [1791] or the Fourteenth Amendment [1868] known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
A month from now, the challengers of Prop 8 and DOMA Section 3 will file their briefs, and Cooper and Clement will receive their responses. The cases will be argued on March 26 and 27.