The U.S. Supreme Court announced on January 16, 2015, that it was granting four petitions to review the 6th Circuit Court of Appeals ruling in DeBoer v. Snyder, 772 F.3d 388 (Nov. 6, 2014), which had rejected the claim that same-sex couples have a constitutional right to marry and to have such marriages recognized by other states. The 6th Circuit’s ruling, issued on November 6 on appeals by four states from district court pro-marriage equality decisions, had opened up a split among the circuit courts, as the 4th, 7th, 9th and 10th Circuits had all ruled in favor of marriage equality claims during 2014, and the Supreme Court had refused on October 6 to review the rulings by the 4th, 7th and 10th Circuits. (The 9th Circuit ruled was issued the day after the Supreme Court announced the three cert. denials, and only one of the two states involved in that case, Idaho, has filed cert. petitions, on which the Court has not taken action.) DeBoer v. Snyder, No. 14-571, cert. granted, 2015 WL 213650 (Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, cert. granted, 2015 WL 213646 (Jan. 16, 2015); Tanco v. Haslam, No. 14-562, cert. granted, 2015 WL 213648 (Jan. 16, 2015); Bourke v. Beshear, No. 14-574, cert. granted, 2015 WL 213651 (Jan. 16, 2015). Attorney General Eric Holder, Jr., quickly announced that the Justice Department would file a brief with the Court urging reversal of the 6th Circuit.
The Court’s announcement of the cert. grant was accompanied by an announcement that the cases have been consolidated for the Court’s consideration, and that the grant was limited to the following two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state? The Court allotted 90 minutes for oral argument on Question 1 and 60 minutes for oral argument on Question 2. Presumably these time allocations were made to assure that attorneys representing each of the four states involved – Ohio, Michigan, Kentucky and Tennessee – would have time to argue, and that representatives of each of the Petitioners would also have sufficient time. Also, presumably, the questions were phrased this way and the argument divided into two parts because some of the cert. petitions address only marriage recognition, while others asked whether states are required to let same sex couples marry.
Three of the cases were decided on pretrial motions while the Michigan decision (DeBoer) followed a full trial on the merits, providing the Court with a trial record and detailed factual findings by the district court. The Court limited the parties to briefing on the merits and presenting oral arguments on the questions presented in “their respective petitions.” Thus the parties in the Ohio (Obergefell) and Tennessee (Tanco) cases will be arguing on Question 2, while the parties in the Michigan (DeBoer) case will address Question 1, and the parties in the Kentucky case (Bourke) case will be arguing on both questions. Presumably the Court also scheduled a separate argument on the recognition question because it implicates some different doctrinal issues from the marriage argument. Indeed, the recognition question could be decided by a straightforward extension of U.S. v. Windsor without ever addressing whether states are required to issue marriage licenses to same sex couples, since the states are not really presenting significantly different arguments from those raised by the defenders of DOMA as reasons for the federal government to refuse to recognize same sex marriages. The Court’s announcement did not specify how the time would be divided between the parties, but presumably Petitioners will get half the time and Respondents will get half the time and perhaps be left to work out among themselves how to allocate the time within their share. Several LGBT litigation groups are among the attorneys representing Respondents.
The Court’s announcement included a tight briefing schedule calculated to get the case argued and decided before the end of the Supreme Court’s term in June. Petitioners’ merits briefs are due by 2 pm on Friday, February 27, Respondents’ briefs by 2 p.m. on Friday, March 27, and all reply briefs by 2 p.m. on Friday, April 17. Potential amici would be subject to the same tight briefing schedule. The last scheduled argument date on the Court’s calendar for the October 2014 Term is April 29, 2015, so it seems likely the arguments will be held on April 27, 28 or 29, which would give the Court two months to settle on opinions if it wants to release them before the term ends. According to the Court’s posted calendar, the last date for announcing decisions is June 29, but the Court has been known to extend the end of the term by a few days to dole out end-of-term opinions as they are ready.
The Court’s actions since October 6 may provide some insight in trying to forecast how the Court will ultimately rule. After it denied certiorari in the cases from the 4th, 7th, and 10th Circuits on October 6, the Court denied all subsequent motions from other states in those circuits to stay subsequent marriage equality rulings issued by district courts there. The Court similarly denied all motions to stay district court rulings from states in the 9th Circuit after that circuit’s October 7 ruling. Most significantly, the Court issued an order on December 19, denying a motion by Florida Attorney General Pam Bondi to stay a U.S. District Court marriage equality ruling in that state, pending the state’s appeal to the 11th Circuit Court of Appeals. That a majority of the Supreme Court was not willing to stay the Florida ruling, even though the case was yet to be decided by the 11th Circuit, spoke volumes about the likely outcome of its decision on the merits. If a majority of the Court was not willing to stay the Florida ruling pending appeal, it seems likely that a majority of the Court is ready to rule on the merits in favor of marriage equality. Only Justices Antonin Scalia and Clarence Thomas were announced as disagreeing with the Court’s denial of a stay. Although it is always hazardous to predict what the Supreme Court will ultimately do on an issue as to which it is likely to be sharply divided, it is also likely that there will be some consistency between the Court’s actions on stay motions after October 6 and its final ruling. It is worth noting that prior to October 6, the Court granted every stay motion presented by a state seeking to delay lower court marriage equality decisions pending appellate review.
Over two years ago, the Court announced in December 2012 that it would review a decision by the 9th Circuit Court of Appeals that struck down California’s Proposition 8, a state constitutional amendment enacted by voter initiative in 2008 that banned the performance or recognition of same sex marriages in California. At that time, the Court added a question to those posed by the defenders of Prop 8 in their petition for review of the lower court decision striking it down: whether the Petitioners had “standing” to appeal the original ruling by the district court in San Francisco? As none of the California officials named as defendants in Perry v. Schwarzenegger was willing to defend Proposition 8 on the merits, the district court had allowed the proponents of the initiative to intervene, and it was they who were appealing the ruling. During the oral argument in that case, titled Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), some of the time was taken up by arguments about the Petitioner’s standing, but the remaining time was devoted to arguing the merits. Those curious about the types of questions the Supreme Court justices might pose to attorneys on Question 1 in the DeBoer case can access the audio recording of the oral argument on the Supreme Court’s website. (The oral argument in Hollingsworth did not focus on the recognition question.)
Based on the Hollingsworth oral argument, there were predictions that the Court might vote 5-4 to strike down Proposition 8, but ultimately the Court concluded, in an opinion by Chief Justice John G. Roberts, Jr., that the Petitioners did not have standing, thus leaving the district court’s ruling in place and effectively striking down Proposition 8 without a Supreme Court ruling on the merits, on June 26, 2013. Same sex marriages resumed in the nation’s most populous state a few days later. The dissenting opinion in Hollingsworth was written by Justice Anthony M. Kennedy, Jr., who argued that the Court had erred in finding lack of standing but who carefully limited his opinion from expressing any view as to the constitutionality of Proposition 8.
Justice Kennedy was the author of the other momentous marriage equality decision issued on the same day, United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court voted 5-4 to declare unconstitutional the federal definition of marriage in the Defense of Marriage Act. In common with Kennedy’s earlier gay rights opinions in Romer v. Evans and Lawrence v. Texas, his Windsor opinion was not ideally clear about its doctrinal grounding, never expressly stating that the case involved a fundamental right or a suspect classification, or merited heightened scrutiny, thus spawning a variety of views from legal commentators and lower court judges and the precedential meaning of the opinion. The 9th Circuit construed Windsor to be a suspect classification case, and decreed “heightened scrutiny” as the standard to apply in subsequent equal protection cases brought by gay plaintiffs. See Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, motion for rehearing en banc denied, 759 F.3d 990 (9th Cir. 2014). On this basis the 9th Circuit subsequently struck down the Nevada and Idaho same sex marriage bans in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), petitions for cert. pending. Some other courts ducked these issues, instead striking down bans on same sex marriage by finding that none of the alleged justifications for the bans survived some form of rational basis review, or that the bans were products of unconstitutional animus. Some commentators have suggested that Kennedy’s decision is most explicable as being based on his view that DOMA was an expression of animus against gay people by Congress. Justice Antonin Scalia, dissenting from the Court’s decision, argued, as he had in his Lawrence dissent ten years earlier, that the majority opinion would support claims for the right of same sex couples to marry, and many of the lower court decisions cited and quoted from one or both of his dissents in support of their conclusions.
The Windsor ruling led to an avalanche of marriage equality lawsuits in every state that did not allow same sex couples to marry. The avalanche of lawsuits soon turned into an avalanche of court opinions. Within weeks of Windsor, the federal district court in Ohio had ordered preliminary relief in Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, July 22, 2013), a marriage recognition case, and in December the district court in Utah issued a ruling on the merits striking down that state’s same sex marriage ban in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah, Dec. 20, 2013). Dozens of district court rulings and rulings by four circuit courts of appeals followed during 2014, so that by the time the Court granted cert. to review the 6th Circuit decision on January 16, 2015, same sex couples could marry in 37 states and the District of Columbia. (In two of those states, Kansas and Missouri, disputes about the scope of lower court rulings made marriage available only in certain counties while the litigation continued.) There were also marriage equality district court decisions pending on appeal before the 1st, 5th, 8th and 11th Circuits. The only federal courts to have rejected marriage equality claims after Windsor were district courts in Louisiana and Puerto Rico and the 6th Circuit Court of Appeals, in the consolidated case from four states that the Supreme Court will review. A week before granting cert. in the 6th Circuit case, the Court rejected an attempt by Lambda Legal to get direct review of the Louisiana decision, Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014), cert. denied, 2015 WL 133500 (Jan. 12, 2015). The Court denied that petition just days after the 5th Circuit heard oral arguments in that appeal as well as state appeals from marriage equality rulings in Texas and Mississippi.
The most pressing question presented by the cert. grant, of course, is whether the Court will use this case to declare a constitutional right to marry throughout the United States, and to have those marriages recognized wherever a married couple might travel or reside. But to those following the course of gay rights in the courts, the question of what rationale the Court uses to decide the case will also be pressing, especially as the various circuit court decisions have adopted different theories that might have a different impact for litigation about other issues. This case may also give the Court an opportunity to clarify the circumstances under which lower federal courts are bound to follow an old Supreme Court decision whose rationale appears to have been eroded by subsequent legal developments.
The 6th Circuit opinion by Circuit Judge Jeffrey Sutton held that the Supreme Court’s dismissal of a constitutional challenge to Minnesota’s same-sex marriage ban in Baker v. Nelson, 409 U.S. 810 (1972), precluded a ruling for the plaintiffs, as the Supreme Court had never overruled or disavowed that decision, in which the Court had stated that the issue of same-sex marriage did not present a “substantial federal question” with no further discussion or explanation. That ruling was also cited by the Louisiana and Puerto Rico district courts in their rejection of marriage equality claims, and it played a prominent role in a lengthy dissenting opinion issued just a week earlier by 9th Circuit Judge Diarmuid O’Scannlain, protesting his court’s refusal to reconsider its marriage equality ruling as requested by Idaho Governor Butch Otter. See Latta v. Otter, 2015 WL 128117 (Jan. 9, 2015).
The question of the continuing precedential authority of Baker v. Nelson came up during the oral argument at the Supreme Court in Hollingsworth, the Proposition 8 case, when counsel for the Prop 8 proponents argued that the district court should not have ruled on the merits in that case because of Baker. At that time, Justice Ruth Bader Ginsburg dismissed Baker’s significance, point out that when Baker was decided the Court had not yet issued its rulings holding that heightened scrutiny applied to sex discrimination claims. Because the 6th Circuit put such weight on Baker v. Nelson, it is likely to be discussed again during the DeBoer argument, and might also be addressed in the Court’s subsequent opinion.
The 4th, 7th, 9th and 10th Circuits all held that Baker was no longer a binding precedent, noting that since 1972 the Court had expanded its view of the fundamental right to marry in a series of cases building on its historic 1967 decision striking down Virginia’s criminal law banning interracial marriages, Loving v Virginia; that it had struck down an anti-gay state constitutional amendment on an equal protection challenge in Romer v. Evans in 1996; that it had struck down anti-gay sodomy laws in Lawrence v. Texas in 2003; and, of course, that it had struck down as violating both due process and equal protection the federal ban on recognizing same sex marriages in Windsor in 2013. In light of all these developments, even though the Court had never expressly overruled Baker, it would be ludicrous to suggest that same sex marriage does not present a “substantial federal question” after June 26, 2013. Even the Court’s most outspoken opponent of gay rights, Justice Antonin Scalia, might conceded to that point, since his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor both proclaimed that the rationale of the majority opinions in those cases would open up claims for same-sex marriage, rendering the Court’s ipse dixit in Baker irrelevant. The Windsor majority opinion did not even mention Baker v. Nelson, which the court below, the 2nd Circuit, dismissed as not relevant to the questions presented in that case.
The courts that have rejected marriage equality claims relying on Baker have stressed that the Court’s summary dismissal in Baker followed by several years its ruling in Loving v. Virginia. They argue that this makes clear that the fundamental right to marry, as identified in Loving, could not extend to same sex couples; if it did, they argued, the Court would not have dismissed the Baker appeal. This argument treats Loving as entirely a race discrimination case, but it conveniently ignores the way Loving was expanded by the Supreme Court in subsequent cases, including Turner and Zablocki, which spoke broadly of the fundamental right to marry as transcending the narrow issue of procreation and didn’t turn on racial issues.
In the marriage equality decisions during 2014 from the 4th and 10th Circuits, Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, sub nom Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6, 2014), the courts held that same-sex couples were being deprived of a fundamental right to marry, and that the states had failed to show that they had compelling justifications for abridging that right. Hedging their bets, these courts also found that the state’s justifications failed to meet rationality review. A Supreme Court ruling on this ground would not disturb the Court’s continuing reluctance to find explicitly that sexual orientation is a suspect classification, which would raise a presumption of unconstitutionality every time the government adopts a policy that discriminates on that basis and would put the burden on the government to prove an important, even compelling, policy justification to defend its position. On the other hand, the 7th and 9th Circuits, in Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied sub nom. Bogan v. Baskin and Walker v. Wolf, 135 S.Ct. 316 (Oct. 06, 2014), and Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), premised their decisions on equal protection, with the 9th Circuit, in line with its earlier ruling in a jury selection case, holding that sexual orientation discrimination calls for heightened scrutiny and the 7th Circuit following a similar path without articulating the “suspect classification” terminology. A Supreme Court ruling based on equal protection that overtly applies heightened scrutiny would have a more far-reaching effect in other gay rights cases outside the marriage issue, which is why it seems more likely that the Court would take the due process route, or, as some argue that Justice Kennedy did in Windsor, attribute the same-sex marriage bans to unconstitutional animus and avoid any overt expression as to the other doctrinal issues. The Court might be leery about reaffirming too broad a fundamental marriage right, for fear that it would put in play constitutional challenges to laws penalizing polygamy, adultery, and incest (as Scalia argued in his Lawrence dissent). A ruling premised on finding animus as the prima motivator of same sex marriage bans would end the bans without necessarily altering Supreme Court doctrine applicable to any other gay-related or marriage-related issues that might come before the Court.
Most predictions about how the Court may rule presume that the Windsor majority will hold together and that the Windsor dissenters would dissent. That would make Justice Kennedy the senior member of the majority who would likely assign the opinion to himself, as he did in Windsor. (Now-retired Justice John Paul Stevens was the senior justice in the majority in Romer and Lawrence and assigned those opinions to Justice Kennedy, who returned the favor in Lawrence by prominently citing and quoting from Stevens’ dissenting opinion in Bowers v. Hardwick.) Nobody is predicting that Justices Scalia, Thomas or Samuel Alito would abandon their dissenting votes in Windsor to join a marriage-equality majority, so they are unlikely to have any role in determining the Court’s doctrinal path in the case. Indeed, Judge Sutton’s opinion for the 6th Circuit defiantly embraced the “originalism” approach advocated by Justices Scalia and Thomas for construing the 14th Amendment (an approach never endorsed by a majority of the Court), under which a claim for marriage equality would founder on the argument that the mid-19th century framers of that amendment could not possibly have intended or understood that its provisions would require states to license marriages by same sex couples. Justice Kennedy, whose opinions in Lawrence and Windsor clearly disavowed an originalist approach to interpreting the scope of liberty protected by the due process clause, would never agree to these arguments. However, there has been speculation that Chief Justice Roberts might join the majority, which would give him control of the opinion assignment. In that case, one might expect a narrowly-focused opinion intended to keep together a doctrinally diverse majority of the Court, and intended to have as little effect on other cases as possible.
In the wake of the cert. grant, several media commentators tried to find particular significance in the Court’s wording of the questions and division of the argument, suggesting that the majority of the Court might have a plan to rule for the Petitioners on marriage recognition while ruling for the Respondents on the question whether states must license same sex marriages. Such an approach was floated by 5th Circuit Judge James Graves in his questioning on January 9 during oral arguments of the appeals from Texas, Mississippi and Louisiana, but strongly refuted by counsel for the plaintiffs in those cases. One suspects that the 5th Circuit may hold off on issuing a ruling now that the Supreme Court has granted cert. to decide these questions, in which case we may never find out whether Judge Graves is committed to that course. However, in light of the procedural and substantive posture of the cert. petitions coming up from four different states, the Court’s organization of the questions and division of the argument appears more a logical response to a complicated appellate situation than a strategic move to produce a “split the baby” decision.Tags: 6th Circuit Court of Appeals, Baker v. Nelson, Bourke v. Beshear, Chief Justice John Roberts, Deboer v. Snyder, gay marriage, Hollingsworth v. Perry, Jr., Justice Anthony M. Kennedy, Justice Antonin Scalia, Kentucky gay marriage, Lawrence v. Texas, Loving v. Virginia, marriage equality, Michigan gay marriage, Obergefell v. Hodges, Ohio gay marriage, Romer v. Evans, same-sex marriage, Tanco v. Haslam, Tennessee gay marriage, U.S. v. Windsor, United States Supreme Court