As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.
On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.
First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.
News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.
Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.
Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.
There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.
The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.
At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!
There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.
The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.
Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.
So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.