9th Circuit Panel Dubious About Idaho and Nevada Justifications for Marriage Ban

The San Francisco-based 9th Circuit Court of Appeals panel that heard oral arguments on September 8 in marriage equality cases from Idaho, Nevada and Hawaii appeared to be very dubious about the justifications presented by Idaho and Nevada for their bans on same-sex marriage.  The Hawaii case focuses on a different issue: whether the district court’s ruling against marriage equality is “moot” because the Hawaii legislature passed a marriage equality law last year, and thus whether the lower court’s decision should be vacated and excluded from having any further significance as a ruling.

The outcome in the Idaho and Nevada appeals seems almost pre-ordained at this point.  Two of the judges on the panel, Stephen Reinhardt and Marsha Berzon, made up the majority of a 9th Circuit panel that ruled in January that sexual orientation discrimination claims merit heightened scrutiny, thrusting the burden on the state to show that its challenged policy significantly advances an important state interest.  Judge Reinhardt wrote the opinion for the 9th Circuit panel that struck down California Proposition 8 back in 2012.  And the third judge on the panel, Ronald Gould, was on a panel that issued what could be characterized as a pro-gay ruling in a challenge to the “don’t ask, don’t tell” military policy prior to its repeal by Congress.  Judges Berzon and Gould were appointed to the court by President Bill Clinton, and Judge Reinhardt was appointed by President Jimmy Carter.

Idaho and Nevada were both represented by the same attorney, Monte Stewart, who stumbled a few times during his second argument period, referring to Idaho when he meant Nevada, prompting Judge Gould to joke about the perils of arguing for two different clients on the same date.  Stewart’s argument was essentially the same for both cases, although the distinctly different situations in the two states required some fancy footwork on his part to try to rationalize their positions.  Stewart’s argument was that the state’s definition of marriage plays an important function in “messaging” to society the state’s policy preferences and the conduct it wants to encourage.  In this case, he argued, the state’s concern is to send a message that it is very valuable to the child born to heterosexual couples that their parents be married so that they can be raised in a stable household with both a mother and a father.   He referred repeatedly to a the “child’s bonding right” which he defined as the right of a child to bond with both of its biological parents.  Stewart professed particular concern about the problem of children being raised by single mothers, and the particular harm this would have to boys being raised without a father, but he also alluded to the problem of motherlessness during his argument.  He was challenged by Judge Gould during the Nevada argument to explain the “derivation” of this right, where it is based in the constitution, and he was forced to admit that he had invented the term as a shorthand for his messaging argument and did not contend that it was a positive constitutional right.

Stewart repeatedly referred to “genderless marriage,” a state marital regime in which the couples might be either same-sex or opposite-sex, as sending a message that gender does not matter and that it is not important to the welfare of the child that it have a chance to “bond” with parents of both sexes.  His argument rested entirely on speculation, and in both arguments he referred to the state’s “crystal ball” in which it foresaw harmful consequences for future generations if the message sent by state endorsement of traditional marriage was abandoned.  He asserted that it was the prerogative of the state legislature, in its traditional role as the determiner of state family policy, to legislate based on its prediction of consequences.

When confronted by Judge Berzon, the most persistently engaged questioner, and then Judge Reinhardt, with the need for the state to show that allowing or recognizing same-sex marriages would cause the increase in “fatherlessness” that Stewart insisted the states had a compelling interest to prevent, Stewart had nothing to fall back on except the “federalism” argument, although he didn’t use that word.  He referred to Justice Anthony Kennedy’s opinion for the Supreme Court in the DOMA case last year, in which Kennedy went on at length about the traditional role of the states in deciding who could marry.

There are important differences between the two states.  In Idaho, there is a broad constitutional amendment that bans not only same-sex marriage but also civil unions and domestic partnerships, providing no mechanism for same-sex couples to form a legally recognized relationship.  In Nevada, by contrast, the state has a narrower marriage amendment, and the legislature adopted a broad domestic partnership law under which same-sex couples have virtually the same rights as different-sex couples concerning parenting and relationships with children.  Thus, the difficulty for Stewart in explaining how his “messaging” argument fared in a state that had undermined the message by adopting domestic partnerships.  The Idaho amendment presents the broader target for the plaintiffs by denying no rights or recognition whatsoever, but the Nevada amendment, in combination with the state’s partnership law, undermines the family policy arguments by allowing the very rights underlying Stewart’s “message” argument.  In the end, one suspects the court will find the inconsistencies overwhelming.

Deborah Ferguson, a former Assistant U.S. Attorney who is now in private practice, argued for the plaintiffs in the Idaho case, and Tara Borelli, a staff attorney at Lambda Legal, argued for the plaintiffs in the Nevada case.  Ferguson was defending a pro-marriage-equality ruling by the district court in Idaho, while Borelli was appealing an adverse ruling by the district court in Nevada that was issued in 2012 before the Supreme Court had invalidated the federal marriage recognition ban in DOMA.  Despite the different posture of the plaintiffs in both cases, the post-DOMA litigation record, now including pro-marriage equality rulings from the courts of appeals in the 4th, 7th and 10th Circuits, put them in the stronger position.  Even though Stewart had tried to craft an argument that would seem somehow new or different from the arguments that were rejected over the past several months by three other circuit courts, he was clearly straining to do so.

From their questions, it appeared that the judges were most concerned with how they were going to rule for the plaintiffs rather than whether they were going to rule for the plaintiffs.  The other circuits have reached the same results but followed different legal paths to get there.  The 4th (Virginia) and 10th (Utah and Oklahoma) circuits have treated these as fundamental rights cases, finding that the states had failed to present a compelling argument for depriving same-sex couples from access to the fundamental right to marry, and had avoided the need to determine what level of judicial scrutiny to apply to an anti-gay state policy.  The 7th Circuit (Indiana and Wisconsin), by contrast, signaled concern during oral argument about the difficulty of circumscribing a fundamental marriage right without endangering laws against polygamy and incest, and instead followed the equal protection route, finding that the state had not provided any rational basis for adopting a policy that discriminates against a group of people defined by an immutable characteristic (sexual orientation) that has been the target of severe social and governmental hostility.  The 7th Circuit’s opinion, by Judge Richard Posner, had employed his usual economic analysis to contrast the harms inflicted by the marriage ban with the minimal, if any, benefits to society or the state derived from banning same-sex marriage.  If the harms generated by a policy significantly outweigh the benefits it may produce, then Posner would question the rationality of the legislature that passed such a law.

Judge Reinhardt cut to the chase during Ferguson’s argument, asking whether the plaintiffs cared which legal argument the court used, so long as the plaintiffs won.  Ferguson had the wit to give the shortest possible answer: “No.”  That brought a wave of laughter in the courtroom. But she quickly followed up by contending that the fundamental right and equal protection arguments were “both important and related” and were both “squarely presented to the court” in this case.  She urged the court to rule on both grounds.

Another point of contention arose when Stewart argued that the 9th Circuit’s decision in January finding that heightened scrutiny applied to a sexual orientation claim was not relevant to this case.  He premised this on his argument that Idaho and Nevada adopted their marriage bans not out of anti-gay bias or animus but because the states wanted to incentivize heterosexual couples to marry if they intended to raise children and feared that allowing same-sex marriage would send the “wrong” message to such couples, devaluing the importance of “man-woman” marriage.  He suggested that the DOMA case, on which the 9th Circuit panel had relied in applying heightened scrutiny, rested on Justice Kennedy’s finding that Congress adopted DOMA in 1996 out of anti-gay animus, and so it would be inappropriate to apply heightened scrutiny in cases that didn’t involve such animus.

Anybody who lived through the ballot initiative campaigns in states that adopted marriage amendments during the last decade would undoubtedly gag at the assertion that there was no animus involved in those votes, but apart from District Judge Vaughn Walker in the Proposition 8 case in California, the courts have generally been loath to attribute anti-gay animus to voters who supported the marriage amendments.  Indeed, Circuit Judge Jerome Holmes in the 10th Circuit wrote a concurring opinion insisting that there was no evidence of animus in the adoption of the Oklahoma marriage amendment and that animus had nothing to do with that court’s determination that the amendment was unconstitutional.  But Judge Posner, the empiricist who refuses to indulge in legal fictions, blasted this one out of the water in his opinion for the 7th Circuit, insisting that anti-gay legislation is an expression of hate, pointing to the “savage” discrimination that gay people had endured for generations.  It’s difficult to know where the 9th Circuit panel will go with this.  Borelli noted in her argument that the state’s justifications were notably absent from the legislative history of these marriage bans, having been apparently manufactured after the fact for purposes of the litigation.  If heightened scrutiny applies, such post-hoc rationalizations are not to be considered by the court.

Judge Berzon said that she was “mystified” that so far the courts deciding marriage equality cases have not focused on the issue of sex discrimination, since she found this case to involve sex discrimination in the same way that Loving v. Virginia, the interracial marriage case, involved race discrimination. Even though there was “equal application” of the prohibition, the Supreme Court ruled in Loving that the law would still fall to an equal protection challenge due to the legislature’s racial motivation.  The first American appellate court to rule in a marriage case, the Hawaii Supreme Court in 1993, had conceptualized it as a sex discrimination case, adopting the Loving v. Virginia reasoning, but very few courts have done so since then.  Ferguson responded to Berzon’s musing by pointing out that over time society has so removed the legal distinctions between husbands and wives to produce spousal equality that there remains little basis for contending that there are distinct sex roles in marriage.  Both Ferguson and Borelli noted the underlying reliance on sex stereotyping of parental roles in the states’ arguments that a child must have one parent of each sex in order to have an optimal family situation.  One suspects that if Judge Berzon ends up writing an opinion in this case, there will be some discussion of sex discrimination, at least as an alternative to the other main theories of sexual orientation discrimination or fundamental right to marry.

If there is any suspense about what the 9th Circuit will do with the Idaho and Nevada cases, it is whether the court will decide this as a fundamental rights case or a discrimination case, or following the lead of some of the trial court opinions, ruling in the alternative on both theories.  But, as Judge Reinhardt’s questioning signaled, in the long run it makes little difference. The Supreme Court will probably decide this issue during its 2014-15 term, and both theories will be fully explored in the briefs and oral arguments.  When Stewart argued based on Justice Kennedy’s opinion in another case that he would support the state’s right to decide who could marry, Reinhardt, acknowledging that ultimately the Supreme Court will decide the issues in this case, said, “You’ll have an opportunity to find out what Justice Kennedy really thinks.  You’re speculation is as good as ours.”  Stewart comment, “We all know this will be decided on step up,” and Reinhardt added, “and we know by whom,” channeling the general supposition that a Supreme Court marriage equality ruling will likely be a 5-4 decision with the deciding vote cast by Justice Kennedy.

As to where things stand at the Supreme Court, the Virginia and Oklahoma cases are now listed for potential discussion at the Court’s first conference of the new term on September 29, so we may know within the next few weeks whether the Court will definitely take a marriage equality case this term.  Within the next week or so the Utah case may also be added to that agenda as briefs continue to be filed with the Court in response to the petitions that are now on file.  Virginia filed new papers suggesting that the Court grant all the petitions from various parties in the Virginia case so that everybody with a stake there can be heard.  Indiana’s Attorney General announced on September 8 that he will file a petition for Supreme Court review, bypassing any request to the 7th Circuit for reconsideration by a larger panel of judges, although it seems unlikely that all the papers will be on file in time to include the 7th Circuit ruling in the Court’s September 29 conference.

The Hawaii argument was rather peculiar, an interesting footnote.  A district judge had ruled against marriage equality prior to the DOMA case, and private counsel representing the plaintiffs had filed an appeal in the 9th Circuit, but the appeal just sat there while the Hawaii legislature, revising its views in the post-DOMA climate, passed a marriage equality law last year that went into effect in December 2013.  The 9th Circuit then asked the parties whether the case was moot.  But meanwhile litigation was initiated by marriage equality opponents in both the federal and state courts in Hawaii, contesting the authority of the legislature to pass the law in light of the Hawaii Marriage Amendment adopted in reaction to marriage litigation in the 1990s.  Their contention is that the legislature could not pass a law authorizing same-sex marriage unless the amendment was repealed.

This argument, characterized by Clyde Wadsworth, attorney for the plaintiffs, as bordering on frivolous, clearly misrepresents the text of the Hawaii marriage amendment and the legislative deal that led to its enactment.  Unlike state marriage amendments in other jurisdictions, the Hawaii marriage amendment was not intended to ban same-sex marriage, but rather to take the question whether same-sex couples could marry out of the courts and to put it in the exclusive authority of the political process.  The amendment provides that only the legislature can decide whether same-sex couples can marry.  That’s what the legislature did last year; it decided to amend Hawaii’s marriage laws to allow same-sex couples to marry, having just a few years previously adopted a civil union law.  The anti-marriage group was tossed out of federal court on standing grounds, and the state trial court dismissed their lawsuit for failure to state a plausible legal claim, but the Hawaii Supreme Court has agreed to hear their appeal.  Ken Connelly, the lawyer arguing on behalf of this group, Hawaii Family Forum, urged the court to keep  the appeal “on hold” rather than to declare the case moot and vacate the district court’s order.

Connelly’s rationale was that if the Hawaii Supreme Court rules in favor of his clients, the ban on same-sex marriage will be restored in Hawaii and the question whether the district court’s decision was correct would once more be a live question for the 9th Circuit to decide.  He contended that if the 9th Circuit now dismisses the appeal as moot and vacates the district court’s opinion, the plaintiffs would have to go back and start a new case “from scratch” to attack the constitutionality of the marriage ban in federal court all over again.  On the other hand, he contended, letting the appeal sit a few months longer would obviate that intermediate step.

The court seemed puzzled at times by his argument, which almost seemed like it should be made by the attorneys for the plaintiffs, who would be the ones inconvenienced if they had to start a new lawsuit in response to a decision by the Hawaii Supreme Court.  But Wadsworth insisted that the plaintiffs wanted the appeal dismissed as moot and the trial court decision vacated.  He pointed out that under 9th Circuit precedents, a repeal of the challenged statute mooted the case, and it should be dismissed unless it was very likely that the legislature would respond to a dismissal be re-enacting the challenged statute.  In light of developments in Hawaii over the past year, there seems little likelihood of that happening.  Furthermore, as Judge Berzon pointed out, the court’s decision in the Nevada and Idaho cases would be binding on the district court in Idaho, and ultimately the Supreme Court is going to decide the issue, probably in 2015, so what purpose is served be keeping the Hawaii appeal “on hold”?

Ultimately the court might buy into Connelly’s argument that “holding” the appeal harms nobody and might be beneficial, but that would mean accepting his contention that his client might win their appeal in the Hawaii Supreme Court, which is a slender reed on which to premise such action in light of the unambiguous text of the Hawaii Marriage Amendment.

The 9th Circuit is likely to proceed quickly on the Nevada and Idaho cases, aware of the clock ticking at the Supreme Court and the likelihood that if they dally their case will turn into a side-show.  Judge Reinhardt, in particular, seemed quite eager to rule for plaintiffs as expeditiously as possible, and there were no obvious signs of resistance from his colleagues.


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