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Marriage Equality: The Day After and the Sequels

Posted on: October 8th, 2014 by Art Leonard No Comments

The day after the U.S. Supreme Court refused to review pro-marriage equality rulings by three federal courts of appeals in four cases directly affecting the marriage bans in five states, another circuit was heard from.  A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled on October 7 in favor of marriage equality in cases from Nevada and Idaho.  Writing for the panel, Circuit Judge Stephen Reinhardt, who was appointed to the court by Jimmy Carter, found that the marriage bans failed to meet the 9th Circuit’s heightened scrutiny standard. Later on  October 7th the court exercised its discretion to issue its mandate to the two district courts, declaring its decision immediately effective.  Latta v. Otter, 2014 Westlaw 4977682.

Nevada officials quickly fell into line.  Governor Brian Sandoval had concluded earlier in the year that the Nevada marriage ban was no longer defensible, so the state did not defend its law before the Court of Appeals, leaving it to an intervening anti-marriage-equality group called “Coalition for the Protection of Marriage” to mount the defense.  That group signed up Idaho’s attorney to represent them.  In light of this, Sandoval was ready to have the state comply with the order, with marriages starting right away.  The Coalition for the Protection of Marriage undoubtedly lacks standing to file its own appeal, in light of the state government’s decision not to do so and the lack of any Nevada law authorizing private groups to represent the state in federal litigation.  Any argument to the contrary by the Coalition would undoubtedly meet defeat because of the way the Supreme Court handled the Proposition 8 case in 2013, finding that proponents of the California anti-marriage initiative lacked standing to appeal a lower court ruling to the 9th Circuit or the Supreme Court.

Idaho was a different story, however, as Governor Butch Otter authorized attorney Gene Schaerr, a Washington-based Supreme Court litigator, to file an emergency application for a stay pending appeal with the 9th Circuit and with the Supreme Court.  Otter’s Supreme Court application, filed on Wednesday morning, October 8, was addressed to Justice Anthony Kennedy, who receives such petitions from the 9th Circuit.  Kennedy quickly granted a temporary stay, giving the plaintiffs until 5 pm on October 9 to respond, and he was expected to refer the application to the full court.   Schaerr’s application said that Idaho would be filing a petition for certiorari, asking the Court to address two questions: whether sexual orientation discrimination is subject to heightened scrutiny, and whether bans on same-sex marriage are actually a form of sexual orientation discrimination.  Schaerr suggested in his application that the Court could address both of these questions without rendering a final decision on whether same-sex couples have a right to marry, and if the Court found that the 9th Circuit panel erred as to either one, it could send the case back to the 9th Circuit for reconsideration.  This would kick the can down the road substantially, putting off a final decision in Idaho for a year or more.

Because the 9th Circuit had consolidated the two cases for decision, there was a single mandate, and Justice Kennedy’s Order referenced the docket numbers of both cases, so technically the mandate was stayed for both Nevada and Idaho, but as a practical matter Nevada was not planning to appeal, so the stay did not interfere with marriages in Nevada.  [Later in the day, responding to a request for clarification by Lambda Legal, which represents the Nevada plaintiffs, Kennedy issued a revised order, staying the 9th Circuit mandate ONLY as it applies to Idaho.  No stay for Nevada, so no interference with implementation of the decision in Nevada.]

The Supreme Court may respond quickly to this application, since it dismissed seven certiorari petitions just days ago, lifting stays in four very similar cases.  The most widespread interpretation of the Supreme Court’s unexplained dismissals was that the four members of the Court most opposed to same-sex marriage would not hear the cases for fear that Justice Kennedy would join with other marriage-equality supporters to establish a nationwide precedent, and that the members who favored marriage equality saw no urgency to address the issue as long as the courts of appeals were ruling in favor of marriage equality.  On that reading, it seems likely that the Court would deny the stay unless a majority of the Justices are taken with Schaerr’s argument that the Court should address the doctrinal circuit court splits before allowing marriage equality to spread further.  It takes a majority vote to grant a stay.

“We hold,” wrote Reinhardt for the 9th Circuit panel, “that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.”

SmithKline v. Abbott Laboratories is a case decided by the 9th Circuit on January 21 of this year, holding that a person could not be struck from a jury list just because they are lesbian or gay.  In that opinion, the court of appeals concluded that the Supreme Court’s 2013 decision striking down Section 3 of the Defense of Marriage Act had effectively applied heightened scrutiny by placing the burden on the government to justify unequal treatment of same-sex marriages under DOMA.  Supreme Court precedents provide that if a particular basis for discrimination requires heightened scrutiny, then it can’t be used to strike somebody from a jury list without an individualized showing that the person can render impartial jury service in the particular case.

Reinhardt found that Nevada and Idaho had failed to meet this test.  Although his analysis followed along what are now very familiar lines from the prior court of appeals opinions, one footnote jumped out as particularly quotable, referring to Governor Otter’s argument that same-sex marriage would contribute to a “shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.”  Commented Reinhardt: “He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies.  We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”  Some wit!

Because he was applying the heightened scrutiny test, Judge Reinhardt did not opine directly as to whether the marriage bans lacked a rational basis.  About the closest he came was to say that “defendants have failed to demonstrate that these laws further any legitimate purpose,” so “they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

Thus, the panel affirmed the decision from Idaho and reversed the decision from Nevada, sending the Nevada case back to the district court “for the prompt issuance of an injunction.”  There was no need for a similar order concerning Idaho, since the trial court had already issued an injunction whose effect was stayed until the 9th Circuit could rule.  The 9th Circuit’s ruling effectively lifted that stay.

Although the other judges on the marriage panel joined Judge Reinhardt’s opinion, one of them, Clinton-appointee Marsha Berzon, wrote a concurring opinion, arguing that the case could alternatively be decided as a sex discrimination case.  Under Supreme Court precedents, sex discrimination cases merit heightened scrutiny.  Of course, applying heightened scrutiny led Berzon to the same conclusion reached by the entire panel on the merits.  But she focused her analysis on a point that was only briefly mentioned by the full panel decision: that Monte Neil Stewart, the attorney who argued in defense of the Idaho and Nevada laws, had advanced as his central argument one that relied heavily on stereotypes about the roles of men and women when it comes to raising children.  The Supreme Court’s sex discrimination jurisprudence sharply rejects any policy that relies on stereotypes about men and women.  Judge Berzon’s opinion runs through a litany of major Supreme Court cases that rejected sex stereotypes in a wide variety of factual contexts, and she found that they were no more a legitimate basis for policymaking in this case.

Finally, and perhaps surprisingly, Judge Reinhardt released his own separate concurring opinion, of course agreeing with the opinion he wrote for the panel but adding his view that this case also involved the fundamental constitutional right to marry, and thus could have been decided as a Due Process case using the strict scrutiny standard that the Supreme Court applies when it is faced with a law that abridges a fundamental right.  Fundamental rights are those that are deeply embedded in our history and tradition.  Opponents of marriage equality have argued that since same-sex marriage is a very new phenomenon, it cannot be considered a fundamental right.  Judge Reinhardt agreed with the plaintiffs in these cases that the opponents have framed the fundamental rights question too narrowly, and he referred to the Supreme Court’s 2003 decision striking down the Texas sodomy law, in which Justice Anthony Kennedy made a similar point in criticizing the Supreme Court’s notorious 1986 Georgia sodomy law decision, Bowers v. Hardwick, for defining too narrowly the right at issue.  Reinhardt concluded that the right to marry recognized by the Supreme Court broadly encompasses the issue of choice of marital partner and is not narrowly focused on different-sex couples.  He invoked a series of Supreme Court marriage decisions that found a right to marry in situations where couples could not engage in procreative activity, thus undermining the defendants’ argument that procreative potential is the defining characteristic of marriage.

However, neither Judge Berzon’s sex discrimination argument nor Judge Reinhardt’s fundamental rights argument won agreement from the other judges on the panel.  (The third judge, Clinton-appointee Ronald Gould, did not write a separate opinion.)  Therefore, the decision of the panel as such is based solely on sexual orientation discrimination.

The 9th Circuit’s SmithKline decision was not tested by en banc review or Supreme Court review, as the losing party in that appeal, Abbott Laboratories, decided not to take the case further on that question.  Thus, although it is a binding 9th Circuit precedent, it appears to be an outlier as a matter of federal constitutional law.  The 2nd Circuit adopted a heightened scrutiny standard when it was reviewing the DOMA case, but the Supreme Court did not specifically endorse that aspect of the ruling when it affirmed the 2nd Circuit’s decision to strike down Section 3 of DOMA.  The 1st Circuit had used the rational basis test to strike down the same provision of DOMA in a separate case from Massachusetts.  And, as Gene Schaerr, the attorney hired by Idaho to represent it in the Supreme Court, observed in the application for a stay, the 4th, 5th, 6th, 8th, 10th, 11th, D.C. and Federal circuits have all adopted the rational basis standard for evaluating sexual orientation discrimination claims.

Thus, although it might seem far-fetched that Idaho could get a stay pending appeal and perhaps a grant of Supreme Court review when that Court had turned down seven petitions just days before, there was an outside chance that Schaerr’s strategy would pay-off, intriguing enough justices to induce them to delay the implementation of this ruling while they decide whether to grant a petition for certiorari from Idaho.

Meanwhile, the Supreme Court “decision not to decide” on October 6 and the 9th Circuit’s decision on October 7 were having immediate effects.  In Colorado, a state in the 10th Circuit where the attorney general, John Suthers, had filed an appeal of a district court pro-marriage-equality decision, the writing on the wall was apparent to Suthers, who joined with marriage equality plaintiffs to get existing stays lifted and advised clerks throughout the state on October 7 to start issuing marriage licenses to same-sex couples.  When Colorado is added to the five states directly affected by the denials of certiorari, six states were added to the 19 (plus District of Columbia) where same-sex marriage is allowed and recognized.  Elsewhere in the 10th Circuit, state authorities in Wyoming and Kansas did not seem inclined to throw in the towel, and existing lawsuits will continue to be defended.

In the 4th Circuit, Virginia Governor Terry McAuliffe issued an executive order on October 7 directing that “all entities in the executive branch, including agencies, authorities, commissions, departments, and all institutions of higher education further evaluate all policies and take all necessary and appropriate legal measures to comply” with the 4th Circuit’s decision, which held that the state’s ban on same-sex marriages unconstitutionally violates a fundamental right to marry.  This would mean, for example, that state employees with same-sex spouses should be able to enroll them immediately for employee benefits coverage.  Elsewhere in the 4th Circuit, federal trial judges asked the parties in pending lawsuits in West Virginia, North Carolina and South Carolina to file papers giving their positions on how the cases should proceed.  In North Carolina, the attorney general had already indicated that he would no longer defend the state’s ban.  In South Carolina, although the attorney general was talking tough about soldiering on with the defense, at least one county probate judge began issuing marriage licenses on October 7.

In the 9th Circuit, there are federal marriage equality cases pending in Arizona, Alaska and Montana, and it seemed likely that those will proceed to summary judgments for the plaintiffs quickly unless the Supreme Court grants a stay pending appeal of the 9th Circuit’s decision, in which cases the judges might decide to delay their rulings and see what happens with Idaho’s anticipated petition for certiorari.

And, of course, still to be heard from were the 6th Circuit, where arguments on appeals from four states were heard early in August, and the 5th and 11th Circuits, where appeals from Louisiana, Texas and Florida are pending but arguments haven’t been scheduled yet.  In the Louisiana appeal in the 5th Circuit, Lambda Legal has accepted an invitation to join as co-counsel with the local attorneys representing the plaintiffs.

The 9th Circuit’s October 7 opinion listed an army of attorneys participating as co-counsel or amicus on all sides of the cases, which had been argued on September 8.  As noted above, Monte Neil Stewart argued on behalf of the Idaho defendants and the Coalition defending the Nevada ban.  Tara Borelli of Lambda Legal’s Atlanta office argued on behalf of the Nevada plaintiffs.  Deborah Ferguson, a Boise attorney, argued on behalf of the Idaho plaintiffs.

9th Circuit Panels Rule on Idaho Stay & California Campaign Disclosure Rules

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

Three-judge panels of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued two rulings of some consequence from the perspective of LGBT rights on May 20. In one, the court delayed implementation of U.S. Magistrate Candy Dale’s ruling striking Idaho’s ban on same-sex marriages while expediting the court’s consideration of the merit’s of Idaho’s appeal of that ruling. In the other, the court rejected a challenge by Prop 8 Committees (organizations formed to support the enactment of California Proposition 8 in the 2008 elections) to California’s law requiring such committees to disclose the identity of their donors.

In Latta v. Otter, Magistrate Dale ruled on May 13 that Idaho’s refusal to allow same-sex couples to marry, or to recognize the out-of-state marriages of same-sex couples, violates the 14th Amendment. Magistrate Dale ordered that the state cease enforcing the same-sex marriage ban as of 9 a.m. on May 16, and she subsequently denied a petition by Governor Butch Otter to stay her ruling while the state appealed to the 9th Circuit. Governor Otter then applied directly to the 9th Circuit, which issued a temporary stay while it considered whether to stay the order until a merits panel could hear and decide the state’s appeal of Dale’s Order. On May 20, the 9th Circuit granted Otter’s petition, citing the Supreme Court’s action of January 6, 2014, when it granted Utah Governor Gary Herbert’s petition to stay a marriage equality ruling by U.S. District Judge Robert Shelby, which the state was appealing to the 10th Circuit.

However, implicitly acknowledging the urgency of plaintiffs’ quest for the right to marry or have their marriages recognized, the court scuttled its original usual briefing schedule for the appeal, and set tight deadlines, specifying that neither party could ask for time extensions on the deadlines. The court set a schedule under which briefing will be completed by the end of July, and specified that the case should be argued during the week of September 8. Although that sounds rather far off, it is actually a relatively speedy schedule for a federal appeals court.

Although the panel did not offer an explanation for its actions, one of its members, Judge Andrew D. Hurwitz, an Obama appointee and the junior member of the three-judge panel, issued a concurring opinion explaining why he agreed with the panel’s action. Referring to the Utah stay, he said that the Supreme Court “has virtually instructed courts of appeals to grant stays in the circumstances before us today,” but said that “if we were writing on a cleaner slate,” he would conclude that the usual factors applied by courts to deciding applications to stay trial court decisions “counsels against the stay requested by the Idaho appellants.” (The appellants in this case are Governor Otter and other state officials sued in the trial court.)

Hurwitz explained further, “It is almost certain that the Supreme Court will eventually resolve the merits of this appeal, and I do not venture to predict the Court’s ultimate conclusion. But, in light of this court’s recent decision in SmithKline Beecham v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), I find it difficult to conclude that the Idaho ban on same-sex marriage would survive interim Ninth Circuit review.” Since the first factor courts consider in deciding whether to grant a petition for a stay is whether the party requesting the stay has made a “strong showing” that it will prevail on appeal, and the SmithKline court ruled that “heightened scrutiny” applies in judicial review of laws that discriminate based on sexual orientation, “it is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail in their defense of a measure that denies the individual appellees the right to marry because of their sexual orientation.”

Hurwitz also noted that the balance of harms as between appellant and appellees definitely favors the appellees, who oppose the stay, and that he would not find that the public interest supported issuing a stay. “I cannot identify any relevant differences between the situation before us today” and the Utah case, he wrote. Even though the Supreme Court’s stay in the Utah case is not “precedential” in “the strictest sense,” he concluded, “it provides a clear message — the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.”

Hurwitz’s explanation suggests that if Pennsylvania Governor Tom Corbett were to seek a stay of U.S. District Judge John E. Jones III’s order ending the ban on same-sex marriages in Pennsylvania, he would undoubtedly get a stay from the 3rd Circuit.

But it suggests something else as to which observers are eager for some sort of intelligence: whether the 9th Circuit is going to hold an en banc reconsideration of the SmithKline decision. Anybody inclined to try to read tea leaves might note that Hurwitz refers to SmithKline as if it is settled law in the 9th Circuit, unlike Oregon U.S. District Judge Michael McShane, who decided not to rely upon it in his ruling on May 19 in Geiger v. Kitzhaber, because the SmithKline panel had not issued its mandate to the parties and the 9th Circuit had not yet announced the result of its internal poll of judges to determine whether to hold an en banc reconsideration. An announcement of en banc review would effectively cancel the panel decision as a precedent; if such review were likely to be granted, Judge Hurwitz surely would not rely on the panel decision in his prognostication about how Idaho’s appeal is likely to fare in the 9th Circuit.

The 9th Circuit’s ruling in ProtectMarriage.com-Yes on 8 v. Bowen, also announced May 20, was not unexpected. The court affirmed a ruling by Chief Judge Morrison C. England, Jr., of the Eastern District of California, which had rejected a 1st Amendment challenge to the state’s disclosure statute as it applied to a controversial ballot initiative. ProtectMarriage’s challenge specifically focused on the post-election reporting of donors during the short period immediately before the vote, arguing that post-election reports are unnecessary to serve the purpose of letting voters know who is behind a ballot question before they vote. The court pointed out that this is not the only purpose of the reporting requirements. They are also intended to “preserve the integrity of the electoral process by deterring corruption and the appearance of corruption,” and to “permit accurate record-keeping” in order to “enhance the public’s future associational rights by offering voters information about which policies those seeking their vote have previously endorsed.” The court pointed out that the Supreme Court has rejected facial challenges to contribution disclosure requirements in several cases, “holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights.”

ProtectMarriage also sought to have the court order California officials to end continuing public access to this information. The trial court had rejected that demand, citing the same considerations that support the disclosure requirement in the first place, but the 9th Circuit panel decided that the trial judge should not have ruled on this question because the passage of time had rendered it “moot.” That is, the information has been publicly available both on-line and in hard copy for more than five years, so the court could not see how it could now be treated other than as publicly-known information. The court directed the trial court to vacate the part of its opinion dealing with this issue, with one judge dissenting on the point.

Federal Magistrate Judge Declares Idaho’s Ban on Same-Sex Marriage Unconstitutional

Posted on: May 14th, 2014 by Art Leonard No Comments

They just keep on coming… Hard on the heels of last week’s ruling by a state court judge in Arkansas that the state’s ban on same-sex marriages violates both the state and federal constitutions, a U.S. Magistrate Judge in Boise has ruled in Latta v. Otter that Idaho’s ban violates the 14th Amendment Due Process and Equal Protection Clauses. Chief U.S. Magistrate Judge Candy Wagahoff Dale released her decision late on May 13, issuing an injunction against enforcement of the ban to become effective at 9 a.m. on May 16, unless it is stayed by judicial action. Anticipating this result, Governor C. L. (Butch) Otter had already filed a Contingent Motion to Stay Pending Appeal on Monday, with the expectation that Judge Dale will grant a stay pending Otter’s appeal to the 9th Circuit. News reports out of Idaho suggested that Idaho Attorney General Lawrence Wasden, as representative of the state government, would be filing his own motion. [Update: On Wednesday, May 14, Judge Dale denied the motion for a stay. The Governor and Attorney General sought an emergency stay from the 9th Circuit. A three-judge panel of the 9th Circuit granted a “temporary” stay while it considered the parties’ arguments concerning a stay pending appeal. As a result, the Magistrate’s order did not go into effect at 9 am on May 16.]

The parties had agreed to expedite the case by referring it for decision to Magistrate Judge Dale. Normally Magistrate judges deal with pretrial discovery matters and settlement conferences and issue recommendations to federal district judges, but in this case Judge Dale was authorized to issue a final decision on the merits.

Judge Dale’s decision closely resembles the long string of federal trial court decisions dating back to December in Utah, but it had one important distinguishing factor. This was the first decision by a federal trial court within the jurisdiction of the 9th Circuit Court of Appeals to rule on a marriage equality claim in light of the circuit court’s January 21 decision in SmithKline Beecham v. Abbot Laboratories. In that case, a three-judge panel decided that the Supreme Court’s U.S. v. Windsor decision, striking down Section 3 of the Defense of Marriage Act, had effectively invalidated prior 9th Circuit rulings on the question whether sexual orientation discrimination claims are subject to “heightened scrutiny.” When heightened scrutiny applies, the challenged law is presumed to be unconstitutional and the government bears the burden of proving that the law significantly advances an important government policy. Most legal commentators agree that a ban on same-sex marriage cannot survive heightened scrutiny review. The SmithKline panel found that, in light of how the Supreme Court dealt with the challenge to DOMA in Windsor, such claims should be subject to “heightened scrutiny.”

The defendants in the Idaho case — Governor Otter, Ada County Recorder Christopher Rich, who had denied marriage licenses to some of the plaintiffs, and the State itself as represented by Attorney General Wasden — argued that SmithKline was distinguishable from this case and should not apply. They argued that the SmithKline ruling limits application of heightened scrutiny to “instances of proven animus or irrational stereotyping,” but Judge Dale rejected this contention. “SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes,” she wrote, “but it does so in the context of Batson analysis [the Supreme Court’s precedent on discrimination against potential jurors] — not in the discussion about Windsor. With respect to Windsor, the court’s holding is undeniably broad: ‘Windsor’s heightened scrutiny applies to classifications based on sexual orientation.’ Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead it found Windsor to be ‘dispositive of the question of the appropriate level of scrutiny in this case,’ a case that fits into the broader category of ‘classifications based on sexual orientation.’ Just as the Ninth Circuit was ‘bound by Windsor’s controlling, higher authority’ when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws.”

Ironically, Judge Dale didn’t even have to engage with this argument to reach her result, as she had already concluded earlier in her opinion that the Idaho marriage law would be subjected either to strict scrutiny — the stiffest level of judicial review — or heightened scrutiny, because the law abridges a fundamental right: the right to marry. She firmly rejected the defendants’ argument that she was still bound to dismiss the case based on the U.S. Supreme Court’s 1972 rejection of a same-sex marriage challenge from Minnesota. Baker v. Nelson, on the ground that same-sex marriage did not present a “substantial federal question,” pointing out that all the federal courts ruling in marriage equality cases since the Windsor decision have rejected that argument as no longer tenable. Then she demolished the defendants’ argument that the plaintiffs are seeking “recognition of a new fundamental right, the right to same-sex marriage.” “This ‘new right’ argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms,” wrote Judge Dale. “Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat dad’s right to marry,'” she continued, invoking the Supreme Court’s leading marriage cases. “Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.”

As such, of course, the Supreme Court has frequently referred to the “right to marry” as a right of fundamental importance, and spoke of it in similar terms in the Windsor decision last June. Furthermore, Judge Dale noted, “and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay and lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.”

Having settled on heightened scrutiny, Dale carefully reviewed each of the “justifications” proposed by the defendants for maintaining the ban, and found them all wanting. The notion that the ban advanced the state’s interest in the welfare of children struck her as “so attenuated that it is not rational, let alone exceedingly persuasive.” Rejecting the defendants’ attempt to rely on outlier “scientific” publications arguing that children need to have parents of both sexes in order to thrive, she wrote, “The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. But the Court need not — even if it could at the summary judgment stage — resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage.” Indeed, she pointed out, denying same-sex couples the right to marry disregards “the welfare of children with same-sex parents,” she observed. “Although the State and Recorder Rich dismiss same-sex households as ‘statistically insignificant,’ no Defendant suggests that the State’s child welfare interest does not extend to the children in these households.”

Judge Dale was similarly dismissive of the ridiculous “channeling procreation” argument or “federalism” arguments, and was particularly critical of the argument that the ban was necessary to “accommodate religious freedom,” characterizing this argument as “myopic.” “No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture,” she acknowledged, “But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. To the extent that Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho.” She went on to quote the Utah marriage decision on this point: “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.”

Of course, no marriage equality decision would be complete without a quote from one of Supreme Court Justice Antonin Scalia’s dissenting opinions, in which he argued that the Supreme Court’s gay rights rulings were opening up the possibility of constitutional claims to the right to marry. Judge Dale quoted Scalia in the context of refuting the defendants’ argument that there is no evidence of animus against gay people in the Idaho ban. “Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. ‘But “preserving the traditional institution” is just a kinder way of describing the State’s moral disapproval of same-sex couples,'” she quoted Justice Scalia’s dissent in Lawrence v. Texas, the 2003 case invalidating sodomy laws.

Concluding, Judge Dale wrote that the plaintiffs “are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiff suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

Grounding her decision firmly in the 14th Amendment, Judge Dale wrote, “While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision,” and concluded: “Slow as the march toward equality may seem, it is never in vain.”

Governor Otter’s “contingent” motion pointed to the Supreme Court’s January 6 stay of the Utah marriage decision, arguing that the “Supreme Court made clear that it will decide the constitutionality of man-woman marriage and until that time no lower court decision holding against man-woman marriage should operate to allow same-sex couples to marry or have their marriages recognized contrary to the law of their particular states.” If a stay is not granted, he argued, “there is likely to be a repetition in Idaho of the chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan.” Presumably, Judge Dale will issue a ruling on this motion before her order can go into effect on Friday morning, but if she hasn’t issued a stay by Thursday afternoon, the Governor and Attorney General will undoubtedly petition the 9th Circuit for quick action.

Already pending at the 9th Circuit is an appeal by gay rights advocates of a pre-Windsor adverse ruling in the Nevada marriage equality case. That had been scheduled for argument in April, but the argument was postponed after a member of the circuit court asked to poll the entire Circuit on whether to reconsider the “heightened scrutiny” ruling in SmithKline Beecham v. Abbott Laboratories, which would obviously affect that case and subsequent marriage equality appeals. The time for briefing and polling having passed with no announcement by the court, it seems likely according to some observers that a majority of the court did not agree to reconsider that case, and the release of an order to that effect is likely awaiting the completion of a dissenting opinion by the judge who requested the poll and those who agreed with that judge. It is likely that the Nevada appeal will finally be heard over the summer, and perhaps in light of the timing will be heard by the same panel that will hear Governor Otto’s appeal of the Idaho ruling, following the pattern embraced by the 10th Circuit when it assigned the Utah and Oklahoma cases to the same three-judge panel.

Meanwhile, marriage equality suits are pending in trial courts within the 9th Circuit in Arizona, Oregon, and Alaska. In Oregon, a summary judgment argument has been held, while the court considers a motion to intervene by the National Organization for Marriage, which despite its name is an organization specifically formed to oppose marriage equality. If the court grants that motion, it would have to hold another summary judgment hearing before a decision could be rendered on the merits. NOM claims to represent several Oregon residents who could assert standing to intervene, including at least one county clerk who is not ready to have their name made public. Since the named defendants in the Oregon case agree with the plaintiffs, in the absence of an intervenor with legal standing a decision by Judge Michael McShane in favor of the plaintiffs could not be appealed to the 9th Circuit. Anticipating that possibility, Judge McShane raised the question at oral argument whether he should stay his own decision until the 9th Circuit has ruled on a marriage equality case from another state. [Update: On Wednesday, May 14, Judge McShane denied NOM’s intervention motion. That means he will move directly to deciding the motion for summary judgment.]

Four same-sex couples are plaintiffs in the case: Susan Latta and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. Some of them seek to marry, while others, already married out-of-state, seek recognition of their marriages. They are represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights, which had represented plaintiffs in the California marriage litigation that concluded with a historic marriage equality ruling by the California Supreme Court in 2008.

Circuit Judge Dings DOMA and Oregon Marriage Amendment in Grievance Ruling on Benefits

Posted on: April 26th, 2013 by Art Leonard No Comments
Judge Harry Pregerson of the U.S. Court of Appeals for the 9th Circuit, sitting as Chair of the 9th Circuit’s Standing Committee on Federal Public Defenders, ruled that Alison Clark, an assistant federal public defender in the Office of the Federal Public Defender for the District of Oregon, is entitled to received coverage for her same-sex spouse under the Federal Employees Health Care Benefits Program.  In the Matter of Alison Clark, Case No. 13-80100 (9th Circuit, April 24, 2013) (unpublished).   In the course of reaching this decision, Judge Pregerson found that Oregon’s Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in Oregon, violates the 14th Amendment, and he made a similar finding as to Section 3 of the federal Defense of Marriage Act.  Furthermore, he found that the federal government must recognize Clark’s same-sex marriage, contracted in Canada, even though she and her spouse live in a state where that marriage might not be recognized.
 

Clark married her same-sex partner, Anna Campbell, on June 23, 2012, in British Columbia, Canada.  A few weeks later, she applied for benefits under the Federal Employee Health Benefits Act, which applies to lawyers employed as federal public defenders.  The Act allows federal employees to elect family coverage, which can include their “spouse.”  The Administrative Office of the Federal Courts rejected the application, asserting that it was bound under Section 3 of DOMA to find that Campbell is not Clark’s spouse.  Furthermore, under Measure 36, Campbell and Clark are not recognized as spouses by their state of residence, either.  Clark filed a complaint under the Plan’s grievance system, arguing that the Benefit Plan’s own non-discrimination provision, which lists sexual orientation as a prohibited ground of discrimination, was violated, as well as the 5th Amendment equal protection and due process requirements.  Clark’s complaint ended up before the Committee, chaired by Judge Pregerson, and his opinion is consistent with rulings in two prior 9th Circuit cases presenting similar facts from federal court employees in California who had married in 2008 prior to the passage of Proposition 8, the main difference being that this marriage was contracted in Canada.

First Judge Pregerson found that this was an instance of sexual orientation discrimination, stating, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse.”  Thus, the Plan’s non-discrimination provision was violated.

Next, he addressed the issue of whether Oregon could refuse to recognize the marriage.  Before Measure 36 was passed, he observed, “Oregon law did not expressly limit marriage as between a man and a woman,” although the courts had construed the marriage law to be so limited.  Measure 36 amended the state constitution to provide: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”  Pregerson opined that heightened scrutiny was the appropriate standard to evaluate Clark’s claim, but that it was unnecessary to reach that issue because “Measure 26 fails under rational basis review.”  He pointed out that under the Supreme Court’s 1996 decision, Romer v. Evans, 517 U.S. 620 (1996), “a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government’s animus towards homosexuality. . .  Here, Oregon does not state any reason for preventing same-sex couples from marrying.” 

Based on the arguments that had been made by proponents of California’s similarly-worded Prop 8 in Perry v. Schwarzenegger, Pregerson found that none of the purported state interests were “rationally related to prohibiting same-sex marriages.”  He made short work of the “responsible procreation,” “stable and enduring families for raising children,” and “proceed with caution in changing a basic social institution” arguments.   “While other possible objectives for Measure 36 exist,” he wrote, “I can see no objective that is rationallyr elated to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” and such an objective would be impermissible under Romer.  Although he didn’t then go on to expressly  connect the dots, the implication was that Clark and Campbell’s marriage would be entitled to recognition in their state of residence, Oregon, as a matter of equal protection.

Having thus concluded, Pregerson did not need to address the alternative due process argument, but did so anyway.  He found that strict scrutiny should apply, because Supreme Court precedents supported the conclusion that the right to marry is a fundamental right.  However, again, he found that it wasn’t necessary to go this far, since Measure 36 flunked rational basis review, and thus, that Measure 36 “violates the due process rights of same-sex couples.”  “I next consider whether, given Clark and Campbell’s valid marriage, it is constitutionally permissible for the federal government to deny Clark’s request for spousal FEHB benefits.  I hold that it is not.”

Here, the barrier is Section 3 of DOMA.  Judge Pregerson found that “three rationales” for Section 3 listed in the House of Representatives report on DOMA to be insufficient under rational basis review.  He noted the Congressional Budget Office report, cited by the 1st Circuit in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012), to the effect that DOMA did not save the federal government money, because the net effect of repealing Section 3 would be to save money for the government, cost savings from recognizing same-sex families outweighing possible tax revenue losses.  Furthermore, he wrote, “there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government’s objective is to cut costs.”  He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the 5th Amendment.

The Obama Administration’s stance since February 2011 has been that Section 3 is unconstitutional but will be enforced until it is repealed or definitely invalidated by the courts.  The Supreme Court heard oral argument in March in United States v. Windsor, whose resolution may determine whether Section 3 is constitutional.  But Judge Pregerson is apparently not inclined to wait for that ruling.  Having held that denial of Clark’s application violates the Plan and the Constitution, provided a remedy.  “I therefore order the Director of the Administrative Office of the United States Court to submit Clark’s FEHB Health Benefit Election form, which she signed and submitted on July 12, 2012, to the appropriate health insurance carrier.”  He also affirmatively orders that the Office process future “beneficiary addition requests without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state.”   In case the federal Office of Personnel Management “blocks this relief,” he would alternatively order monetary relief, along the lines that the 9th Circuit has approved in the Levenson case from California, providing the funds necessary to compensate Clark for the cost of obtaining insurance coverage for her spouse.  This, of course, would cost the government more than including Clark’s spouse under the employee group insurance policy. 

Judge Pregerson’s ruling, which is non-precedential and only binds the parties, nonetheless takes on a question left hanging during the Windsor oral argument, of whether the constitution would require the federal government to recognize legally-contracted marriages, regardless where the married couple resides.  This is a significant question because state marriage laws generally do not have residency requirements, so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states (or countries, usually Canada) to get married, but are living in jurisdictions that don’t recognize their marriages.  When questioned about such situations during the Windsor argument, her counsel, Roberta Kaplan, stated that the plaintiff was only asking for federal recognition in states that recognized the marriages, but it is difficult to see how a federal constitutional right could be so cabined, and it would be unfortunate if the Supreme Court were to hold Section 3 invalid without addressing this question of broader application.