Federal Court Rules on Veterans Cemetery Burial Dispute for Married Same-Sex Couple

In light of Obergefell v. Hodges, the decision in Taylor v. Brasuell, 2015 WL 4139470 (D. Idaho, July 9, 2015), seems obvious.  Taylor is a 74-year-old veteran of the U.S. Navy.  She married Jean Mixner in a religious ceremony in 1995, and then the women married again in a legal civil ceremony in California in 2008.  Mixner passed away in 2012 and was cremated.  Taylor kept the ashes, intending that when the time came she would be cremated as well and they would be buried together in a military cemetery.

In December 2013, Taylor went to the Idaho State Veterans Cemetery in Boise to make the arrangements and filed an application. On June 4, 2014, she received a letter from the Director of the cemetery informing her that she could be buried there, but not together with her spouse, because the marriage was not recognized under Idaho law.  Taylor filed suit on July 7, 2014, requesting an injunction to compel the cemetery to honor her request.

A few months later, the 9th Circuit ruled in Latta v. Otter that Idaho’s recognition ban was unconstitutional, on October 10, 2014, the Supreme Court denied a motion for stay pending appeal by Idaho, and on October 28, 2014, the cemetery allowed interment of Ms. Mixner’s ashes, having concluded that Idaho’s recognition ban was ended.  The defendant in this case, David Brasuell, administrator of the cemetery, filed a motion to dismiss, claiming that the case was moot since Mixner’s ashes had been interred and the Idaho Division of Veterans Services had granted Taylor’s request.  Taylor responded with a motion for summary judgment, asking the court to issue the requested injunction, just to be sure that her request to be buried with her spouse would be honored.

Idaho subsequently filed a cert petition in Latta v. Otter, which the Supreme Court held without decision while the appeal in Obergefell v. Hodges was pending.  That petition was denied on June 30, 2015, after the Supreme Court had issued its ruling on the merits in Obergefell.  Meanwhile, the cross-motions in this case had been pending before U.S. Magistrate Judge Ronald E. Bush, who evidently held up on ruling until a decision was rendered in Obergefell.  The defendants pressed their mootness argument in support of dismissal, but Judge Bush came down in favor of Taylor, issuing the requested injunction.

“There is no question but that those on both sides of the argument raised in the Latta and Obergefell cases have firm and deeply-felt convictions about the ‘rightness’ of their particular position,” he wrote.  “Further, the landscape left by Latta and Obergefell is still very warm to the touch.  However, the remaining issues in this case must be decided against the judicial finish line of those cases, not against the arguments raised along the way.  In that space, this Court is not persuaded that Veterans Services, via Mr. Brasuell, has borne its ‘formidable’ burden of establishing that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ Concentrated Phosphate, 393 U.S. at 203.  Perhaps, even without an enforceable order ensuring that Ms. Tayler and Ms. Mixner will be permanently interred together at the Idaho Veterans Cemetery, they would nonetheless be so laid in perpetuity.  But notwithstanding the rulings in Latta and Obergefell, a future director at Veterans Services or the Idaho State Veterans Cemetery (or some other applicable state actor) may come to view his or her role as being responsible for deciding what is/is not constitutional under the law on matters that may impact Ms. Taylor’s claimed right to be interred there with her same-sex spouse.  It is not unusual for legal precedent – even Supreme Court decisions – to be tested in such ways over time to ‘settle the pond’ on novel and evolving issues.  Dismissal on the grounds of mootness would be justified only if this possibility was categorically foreclosed or, said another way, if it was absolutely clear that Ms. Taylor no longer had any need of the judicial protection that she seeks.  The record now before the Court does not support such a conclusion.  For this separate reason, Mr. Brasuell’s Motion to Dismiss is denied.”

The court then concluded that, in light of Latta and Obergefell, it was clear that Taylor was entitled to summary judgment and the issuance of the injunction she was seeking.

In a footnote, the judge explained the particular predicament that might arise if the case were dismissed as moot and then after Taylor’s death the cemetery’s administration might change their mind and deny burial.  At that point, it would be questionable whether her executor or administer would have standing to bring an action under Section 1983 (the federal civil rights enforcement statute), since only living persons have legal rights to assert.  The judge concluded that Taylor was entitled to the peace of mind of obtaining injunctive relief now.

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