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Posts Tagged ‘6th Circuit Court of Appeals’

Sex Stereotype Theory Cannot Overcome Adverse 6th Circuit Precedent in Sexual Orientation Claim

Posted on: June 16th, 2018 by Art Leonard No Comments

Characterizing a lesbian plaintiff’s sex discrimination claim under Title VII and the Kentucky Civil Rights Act as a sexual orientation discrimination claim, Chief U.S. District Judge Joseph H. McKinley, Jr., granted an employer’s motion for partial dismissal, finding that 6th Circuit precedent from a decade ago expressly rejected using a sex stereotype theory to find sexual orientation discrimination actionable under Title VII or the Kentucky statute. Lindsey v. Management & Training Corporation, 2018 WL 2943454, 2018 U.S. Dist. LEXIS 98001 (W.D. Ky., June 12, 2018).

Terry Lindsey alleged that she was terminated because she is an African-American, noting that she and other African-American employees in management positions were either removed or encouraged to resign from management prior to her termination. She also alleged that she was terminated because she was seen by another employee with her female “significant other,” who is a former employee of the company.  Lindsey pointed to inconsistent enforcement by the company of its rule against co-workers forming romantic relationships, pointing out that the company “never took disciplinary action against employees who were engaged in opposite-sex relationships with other employees.  The company moved to dismiss the sex discrimination claim as well as a retaliation claim which had not been administratively exhausted prior to filing suit.

The company’s motion asserted that Lindsey had not pled a cognizable sex discrimination claim, as “the characteristic upon which she claims she was discriminated, her sexual orientation, is not a protected classification” under either Title VII or the Kentucky law, wrote Judge McKinley. One might argue that this mischaracterizes Lindsey’s claim. She is not alleged that she was discriminated because she is a lesbian, but rather she is being discriminated against because of the sex of the person she is dating, observing that the company treats same-sex and different sex relationships differently, thus having a policy based on sex.  But the court, without any discussion of the matter, accepts the company’s characterization of the claim, and comments, “The Sixth Circuit has categorically held that ‘sexual orientation is not a prohibited basis for discriminatory acts under Title VII,” citing Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006).  “Further,” he wrote, “the Sixth Circuit, in applying Title VII precedent to the KCRA, has held that the KCRA also does not protect individuals from discrimination based on sexual orientation,” citing Pedreira v. Kentucky Baptist Homes for Children, 579 F. 3d 722 (6th Cir. 2009).  “Lindsey’s complaint alleges that M & T took adverse action against her because of her same-sex relationship.  Because of the Sixth Circuit’s opinion in Vickers, this claim is foreclosed both under Title VII and the KCRA.”

But the judge acknowledges that there is some logic to viewing this as a sex stereotyping case, writing, “Lindsey’s arguments to the contrary, while foreclosed by Vickers, are not without some merit.  Title VII’s protection against sex discrimination allows for claims ‘based on gender nonconformance that is expressed outside of work,’” citing EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3 560 (6th Cir. 2018), and some earlier 6th Circuit cases allowing sex discrimination claims to be brought by transgender plaintiffs using a sex stereotype theory.  “If the court were simply required to apply this framework,” the judge continued, “Lindsey’s claim would likely survive.  Lindsey’s behavior that was at the root of the alleged discrimination (dating another woman) fails to conform to the stereotypical female behavior of dating men.  The Vickers court seemed to acknowledge that such claims based on sexual orientation discrimination fit within the framework for analyzing sex discrimination claims, stating that, ‘in all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.’  But the Vickers court removed claims based on sexual orientation from ever being put through this analytical framework by declaring that ‘a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII,’” in this instance quoting the 2nd Circuit’s opinion in Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005).  In a footnote, Judge McKinley notes that Dawson “was recently overruled by Zarda v. Altitude Express, Inc., 883 F.ed 100 (2nd Cir. 2018).

Nonetheless, despite these developments since Vickers, Judge McKinley states that “because Vickers remains good law [citing EEOC v. Harris Funeral Homes], the court must dismiss Lindsey’s Title VII and KCRA claims for sex discrimination.”

Lindsey also tried to argue in opposition to the motion to dismiss that M&T is a federal contractor and thus bound not to discriminate because of sexual orientation as part of its contract with the federal government under Obama Administration Executive Order 13672, which has not been expressly rescinded by Trump. Judge McKinley notes that the complaint filed in this case “makes no mention of this Executive Order as a legal theory under which she is seeking relief,” nor could it, really, because the E.O. is only enforceable administratively within the department with which the employer has its contract.  There is no general right for an employee to sue an employer in federal court to enforce a provision in a contract between the employer and the government.  And, of course, raising new legal theories that were not mentioned in a complaint in opposition to a dismissal motion just does not work as a matter of civil procedure.

However, Judge McKinley may not have read Harris Funeral Homes closely enough.  He cited it for the proposition that Vickers remains “good law” in the 6th Circuit, but the paragraphs in Harris dealing with the Vickers precedent may lead one to doubt whether Vickers remains on such solid ground as circuit precedent as Judge McKinley believes.  In Harris, admittedly a gender identity rather than a sexual orientation case, the court cast doubt on the viability of the Vickers panel’s narrow approach to the sex stereotyping theory, citing to the earlier circuit gender identity cases of Smith v. City of Salem and Barnes v. City of Cincinnati, which had taken a broader view of sex stereotyping theory than the Vickers panel had embraced.  (The Harris panel criticized Vickers for engrafting an additional interpretive test to the theory that went beyond what the Supreme Court had done in the seminal sex stereotyping case of Price Waterhouse.) Furthermore, of course, the 2nd Circuit case on which Vickers relied, Dawson, has been overruled in Zarda, as Judge McKinley noted.  Which is a long way around to saying that if he were willing to stick his neck out, there was sufficient diversity of approach in 6th Circuit sex discrimination precedents for McKinley, had he been so inclined, to decline to dismiss the sex discrimination claim.

It is unfortunate that Lindsey is apparently litigating pro se, because this seems like the kind of case that might be used to persuade the 6th Circuit to abandon Vickers and, in light of the broader view of sex stereotyping and flexibility in interpreting “sex” in Title VII exhibited in Harris, to adopt an interpretation that could encompass Lindsey’s claim.

 

Supreme Court Grants Four Petitions to Review 6th Circuit’s Marriage Ruling

Posted on: January 19th, 2015 by Art Leonard No Comments

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.

6th Circuit Opens Up Circuit Split on Marriage Equality

Posted on: November 7th, 2014 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit voted 2-1 to reverse marriage equality decisions from Michigan, Ohio, Kentucky and Tennessee on November 6, creating a split of circuit authority that appeared calculated to provoke Supreme Court review just one month after the High Court had turned down petitions from five states in three circuits, effectively allowing marriage equality decisions to take effect in those states.  The opinion for the majority in DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191, 2014 Westlaw 5748990, by Circuit Judge Jeffrey Sutton framed the issue as “who should decide” whether same-sex couples have a right to marry, judges or the voters (either directly through referenda or indirectly through their elected legislators)?  He concluded that this was a policy decision best made through “democracy” rather than adjudication, thus parting company from his colleagues in the 4th, 7th, 9th and 10th Circuits.

Although Sutton’s decision was long — 35 pages in the court’s slip opinion — much of it could be characterized as merely “dicta” — unnecessary ruminations — because at the outset he asserted that the court was bound by the Supreme Court’s ruling in Baker v. Nelson, 409 U.S. 810 (1972), an appeal from a Minnesota Supreme Court decision denying a gay couple’s marriage claim for lack of a “substantial federal question.” In those days, the Supreme Court was obliged by federal statutes to issue a ruling on the merits in any appeal from a state court decision concerning the constitutionality of a statute.  Because of the sheer volume of such cases, the Court frequently summarily affirmed the lower court without holding oral arguments or receiving full briefing from the parties, stating that the case did not present a “substantial federal question.”  Under the circumstances, such rulings are considered binding precedents on lower courts as to their judgments, but lacking a written opinion from the Court, the grounds of the decision are open to speculation.

“It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future.  Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions ‘until such time as the Court informs us that we are not,'” wrote Sutton, referring to a later Supreme Court ruling explaining the precedential status of such summary dispositions, Hicks v. Miranda, 422 U.S. 332 (1975).  This was a selective quotation from Hicks, however, as each of the other circuit courts has found a basis in other statements in Hicks and later Supreme Court opinions suggesting that if later Supreme Court rulings make it clear that the earlier case would now present a substantial federal question, the old summary affirmance is no longer binding.

Sutton explained why he concluded that the 2013 DOMA ruling, U.S. v. Windsor, 133 S. Ct. 2675 (2013), did not overrule Baker v. Nelson.  Justice Anthony Kennedy’s opinion for the Court did not mention Baker, and expressly disclaimed ruling on whether same-sex couples are entitled to marry.  Although Justice Kennedy wrote that the basis for the Court’s ruling was the 5th Amendment’s Due Process and Equal Protection requirements, expressly disclaiming reliance on federalism to reach its result, Chief Justice John Roberts’ dissenting opinion characterized the case as being about “federalism” — the division of authority between state and federal governments — and Sutton reiterated that contention, arguing that the Windsor ruling leaves Baker v. Nelson untouched because it says nothing directly about whether same-sex couples are entitled under the 14th Amendment to marry.

If that is the case, then there was no reason for Sutton to keep writing.  He could have ended his opinion right there, without addressing the due process and equal protection arguments made by the plaintiffs in these cases, but he plunged ahead, rejecting the analyses of all the prior circuit court decisions as well as dozens of district court opinions (including the six opinions being reviewed in this case).  “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States,” he insisted, and went on to adopt the theory presented by the states that marriage as an institution was created to channel the procreative activities of heterosexual couples into a stable institution for raising their children.  While he conceded that views of marriage have evolved, and that there could be strong policy arguments for extending the right to marry to same-sex couples today, he said that this “does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.”  This is, of course, in line with his general philosophy concerning the respective role of legislatures and courts in making public policy decisions, and it channels the arguments made by Justice Samuel Alito in his dissenting opinion in U.S. v. Windsor.

Understanding Sutton’s opinion requires understanding his judicial philosophy.  Sutton was appointed to the 6th Circuit by George W. Bush.  He was among Bush’s earliest appointments, and his very conservative reputation, earned from his law review articles and his service as Ohio State Solicitor, caused a substantial delay in his confirmation.  The Democrats briefly controlled the Senate at the beginning of Bush’s first term, and they refused to vote on the Sutton nomination.  After Republicans gained a majority in the Senate, Bush re-nominated Sutton and he was finally confirmed two years after his initial nomination.  After graduation from law school at Ohio State, Sutton had clerked at the Supreme Court for Justices Antonin Scalia and Lewis Powell.  His views on judging seem to be closely in sync with Scalia’s articulated positions.

Sutton lines up with those who say that constitutional provisions should be held to mean what their framers intended them to mean, based upon what they would have been taken to mean by the public at the time they were ratified.  Viewed from this perspective, the 14th Amendment, adopted in 1868, was intended to assure that the recently freed black slaves would be accorded the same legal status by the states as all other citizens.   Also viewed from this perspective, the function of the due process clause was to guarantee procedural fairness in administering the laws.  Adherents to this view of constitutional interpretation generally dispute the theory of “substantive due process” under which courts invalidate laws as impairing fundamental rights without sufficient justification.  They also long argued that the equal protection clause was intended solely to ban race discrimination, given the context of its adoption.  Even Justice Scalia seems to have backed away from this extreme view of the limits of equal protection, now describing himself as an “imperfect” originalist, but he has referred from time to time to the “discredited” theory of “substantive due process.”

At the same time, Sutton also proclaims, as does Scalia, that courts must be very deferential to the legislatures and the voters in matters of deciding public policy, that they must accord a strong presumption of constitutionality to policies made through the democratic process, and that they should only strike down state constitutional provisions and statutes in extreme cases where they directly contradict express constitutional provisions.  Such judges are fond of pointing out that the constitution does not mention marriage, and they consider the argument that there is a constitutionally protected fundamental right to marry as illegitimate.

Together with this, as Sutton points out, prior decisions by the 6th Circuit have rejected the contention that sexual orientation is a “suspect classification” or that laws discriminating against gay people are subject to heightened or strict scrutiny, so this 6th Circuit panel was bound in his view to uphold the state marriage bans if any rational basis for them could be hypothesized.

Given this background of judicial philosophy and 6th Circuit precedent, together with his rejection of the argument that U.S. v. Windsor had any direct application to this case, his conclusion that the marriage bans are constitutional was not very surprising.  Indeed, anybody listening to the oral argument held by the court exactly three months earlier would have to conclude that Sutton was very skeptical about the argument that the bans were unconstitutional.  This result from the 6th Circuit was widely anticipated, even by Supreme Court Justice Ruth Bader Ginsburg, whose public remarks before the start of the Supreme Court’s term sent a clear signal that the Court felt no rush to take a same-sex marriage case, but that this could be changed by the decision that was forthcoming from the 6th Circuit.

Dissenting Judge Martha Craig Daughtrey, a senior judge who was appointed to the 6th Circuit by Bill Clinton early in his first term, chided Sutton at the outset of her opinion.  “The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” she wrote.  “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.  Instead, the majority sets up a false premise — that the question before us is ‘who should decide?” — and leads us through a largely irrelevant discourse on democracy and federalism.  In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.  Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for ‘proceeding with caution’ (otherwise known as the ‘wait and see’ approach), I dissent.”

Daughtrey’s dissent incorporated parts of the other circuit court decisions, with particular emphasis on Judge Richard Posner’s opinion for the 7th Circuit and Judge Marsha Berzon’s concurring opinion in the 9th Circuit, rejecting the continuing precedential salience of Baker v. Nelson (which she describes as a “prime candidate” for being treated as a “dead letter”) and finding the states’ justifications for their marriage bans unavailing even under the least demanding rational basis scrutiny.  Thus, prior 6th Circuit cases commanding that rational basis review apply in sexual orientation cases presented no barrier to her conclusion, because she found that the state arguments failed to meet the rational basis test.

Clearly, this decision by the 6th Circuit panel is merely a way-station on the route to a final constitutional determination in a higher tribunal, and Sutton’s opinion at times reflects his understanding that his view is out of step with the trend of federal decisions and may well fall to Supreme Court review.  Daughtrey suggested a possible ulterior motive on the part of the majority.  After reviewing the trial record in the Michigan case and the reasoning of the opinions from the other circuits, she wrote, “These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages.  Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us.  Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and put an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”

Lawyers for the plaintiffs in the six cases conferred by telephone conference on November 7 about the strategy going forward.  Since ten out of the fifteen active judges on the 6th Circuit were appointed by Republican presidents, including a large number by George W. Bush, with only two appointees by Barack Obama and three by Bill Clinton, a motion for rehearing en banc seemed a pointless, time-wasting gesture, so the most likely path forward would be the filing of six petitions for certiorari with the U.S. Supreme Court at the earliest possible date, and the attorneys quickly reached a consensus on this point.  None of them would be filing motions for rehearing en banc.  Judging by how things have played out in recent Supreme Court terms, it appeared possible that if such petitions were filed promptly, one or more of these cases could end up on the Supreme Court’s active docket for decision during the current term, which ends in June 2015.  The best candidate for such review would probably by the Michigan decision, the only one decided after a trial affording a full factual record as opposed to the other cases that were decided on motions for summary judgment.

 

Bush Appointees Split Over Stay of Michigan Marriage Ruling

Posted on: March 26th, 2014 by Art Leonard No Comments

A panel of three federal judges, all appointed by George W. Bush, were split 2-1 about issuing a stay of the U.S. District Court’s ruling that Michigan must allow same-sex couples to marry. Circuit Judge John M. Rogers and Kentucky Chief District Judge Karen Caldwell voted to grant the state’s motion for a stay, while Circuit Judge Helene White dissented.

The approach of the majority seemed to be “Ours is not to reason why,” as they punted on applying the four-factor test that courts in the 6th Circuit normally apply in determining whether to stay a district court ruling pending appeal.

The four factors are: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. Rather than evaluating these factors, the court said “these factors balance no differently than they did in Kitchen v. Herbert,” the Utah marriage case. In that case, the Supreme Colurt ordered a stay. Thus, the majority of this panel punted to the Supreme Court, saying, “There is no apparent basis to distinguish this case or to balance the equities any differently than the Supreme Court did in Kitchen.” They also noted that several district courts in other cases had stayed their rulings, including a Kentucky case headed to the 6th Circuit on appeal.

The problem is that the Supreme Court provided no explanation of how it had weighed the factors, or even whether it had done so. And so Judge White, finding no guidance in the Kitchen ruling, went ahead to weigh the factors herself. “Michigan has not made the requisite showing,” she wrote. In light of the lack of specific guidance from the high court, “I would therefore apply the traditional four-factor test, which leads me to conclude that a stay is not warranted.”

What nobody can bring themselves to say explicitly is that when issues like this get to the Supreme Court, the decision to issue a stay is as much a political decision as a legal decision and, indeed, in this case the Supreme Court provided no legal reasoning because it seems that its decision to stay the Utah ruling was political. Any honest evaluation of the traditional four factors would produce little support for the stay, in light of the Supreme Court’s ruling in U.S. v. Windsor.

But there we have it. No more same-sex marriages in Michigan until there is a final appellate resolution. Although this 6th Circuit panel granted the motion to stay the district court’s order “pending final disposition of Michigan’s appeal by this court,” nobody can believe that the stay would immediately end if a 6th Circuit panel affirms Judge Bernard Friedman’s decision, for such a 6th Circuit ruling would be stayed to allow the state time to petition the Supreme Court for certiorari, and then stayed pending disposition by the Supreme Court. However, it seems likely that the 10th or 9th Circuits will render decisions that work their way to the Supreme Court before the 6th Circuit does, since the 10th Circuit will hear arguments in April in the Utah and Oklahoma cases and the 9th, which is on an expedited schedule with the Nevada case, should be hearing arguments soon after. The 4th Circuit may also decide the Virginia case before the 6th gets to Michigan (and Kentucky and Tennessee). Nobody knows which case will ultimately get to the Supreme Court. But as a practical matter, it seems likely that same-sex marriages will not resume in Michigan until the Supreme Court issues a ruling on marriage equality, most likely in the spring of 2015.

Federal Judge Refuses to Stay Her Tennessee Marriage Recognition Order as New Marriage Equality Drama Plays Out in Oregon

Posted on: March 21st, 2014 by Art Leonard No Comments

In a gutsy move, U.S. District Judge Aleta A. Trauger has rejected a request by Tennessee Governor Bill Haslam to stay her order requiring the state to recognize the out-of-state same-sex marriages of three Tennessee couples while Haslam appeals to the U.S. Court of Appeals for the 6th Circuit. Trauger issued a short opinion explaining why on March 20.

Trauger had issued her order in Tanco v. Haslam on March 14, finding that the plaintiffs had shown that they were likely to succeed on the merits of their claim that the state’s refusal to recognize their marriages violates the 14th Amendment of the federal constitution. Without engaging in any extended constitutional analysis in this new opinion, Trauger pointed out that “(1) the post-Windsor courts have uniformly found that bans on the consummation and/or recognition of same-sex marriages are unconstitutional under rational basis review, (2) the court found the reasoning in those cases, particularly Bourke v. Beshear, to be persuasive, and (3) the court found no basis to conclude that Tennessee’s Anti-Recognition Laws would merit different treatment under the United States Constitution than the laws at issue in these other states.” Windsor is, of course, the U.S. Supreme Court’s ruling last June that Section 3 of the Defense of Marriage Act was unconstitutional, and Bourke v. Beshear is the recent ruling by U.S. District Judge John Heyburn holding that Kentucky could not refuse to recognize same-sex marriages contracted out of state. On the other hand, no circuit court of appeals has yet ruled on a marriage equality case since Windsor, although appeals are now pending in several circuits. However, she wrote, “given the unanimity of opinion as to this point in district courts across the country, the court finds no ‘serious question’ as to whether this court conducted an appropriate constitutional analysis in reaching essentially the same conclusion.”

More to the point, Trauger sharply disputed Haslam’s contention that staying the decision would not cause irreparable harm to the plaintiffs, and emphasized the narrow scope of her preliminary injunction, which orders the state to recognize only the same-sex marriages of the three plaintiff couples. Any harm to the state by complying with this order while the state’s appeal goes forward “would not be substantial,” she wrote, “and that harm is unlikely to occur in the first place, because the plaintiffs are likely to succeed.” She also wasn’t convinced by the argument that the “affront” to the “sovereignty” of Tennessee occasioned by compliance with her order would outweigh harm to the plaintiffs, especially the couple who are expecting a newborn child and the other couple who are raising two children together.

Judge Trauger took pains to distinguish this case from the other district court rulings, all of which are now being stayed pending appeal. All of those other cases, she observed, involved statewide relief. That is, if the marriage formation opinions went into effect, as happened briefly in Utah before the Supreme Court granted a stay, hundreds of couples might quickly flock to get married. By contrast, her preliminary injunction only affected three couples. Haslam has failed to show that anybody else would be injured by the enforcement of her Order, and she asserted that “preserving the status quo” pending appeal was not a good enough argument where constitutional rights of the plaintiffs were at stake.

Haslam had announced just a few days earlier that he was appealing the preliminary injunction to the 6th Circuit. That circuit court is already entertaining an appeal from Ohio in a marriage recognition case, and is about to receive an appeal in the Kentucky case, where Judge Heyburn bowed to the concerns of Governor Steve Beshear and stayed his marriage recognition ruling pending the appeal.

Meanwhile, a new same-sex marriage drama is playing out in Oregon, where Attorney General Ellen Rosenblum filed a brief on Tuesday (March 18) with U.S. District Judge Michael McShane, who is presiding over two consolidated same-sex marriage cases, Geiger v. Kitzhaber and Rummel v. Kitzhaber. Rosenblum’s brief for the state argues that the ban on same-sex marriage is unconstitutional, and asserts that the state is ready to start issuing marriage licenses if the court rules that way after hearing oral arguments on a motion for summary judgment by the plaintiffs on April 23. Neither Governor John Kitzhaber nor the other named defendants in that case have indicated any interest in appealing from such a ruling, and so far nobody has petitioned the court to intervene to defend the marriage ban since Rosenblum earlier announced that she would not defend it. The Oregonian, a local newspaper, reported on March 19 that some county clerks have discussed intervening as defendants, but so far nobody has taken that step. Intervention would require approval from Judge McShane, an openly gay man who was appointed to the court by President Barack Obama and confirmed by the Senate last May.

Judge McShane is faced with an interesting set of choices. He could rule promptly after the April 23 hearing, rendering a decision similar to the eight consecutive pro-same-sex marriage decisions issued by federal district courts in other states over the past few months, and make it effective immediately, which would make Oregon the nineteenth state with same-sex marriage if one can count Illinois as the eighteenth because Cook County Clerk David Orr has been issuing licenses under a federal court order and several other county clerks have followed suit. Or, he could rule on the merits for plaintiffs and issue an opinion, but stay his order pending the 9th Circuit’s ruling in the Nevada marriage equality case. This would allow him to make any adjustments necessary to reflect the 9th Circuit’s ruling to be in compliance with circuit precedent. If he wished to be even more cautious, he could hear arguments on April 23 and then wait until the 9th Circuit rules before finalizing his opinion and releasing it, so as to take account of whatever the 9th Circuit decides. The 9th Circuit had previously scheduled oral arguments in the Nevada case for April 9, but then cancelled the argument, reportedly based on a request by one of the assigned judges for more time to prepare. As the 9th Circuit has been deluged with amicus briefs on both sides of the question, such a request is understandable. The 9th Circuit has not as of now announced a rescheduled date, but one assumes it will be relatively soon, given the urgency of deciding this as more district court opinions pile up.