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Third Week of November 2014 Was a Busy Week on the Marriage Equality Front

Posted on: November 21st, 2014 by Art Leonard 1 Comment

Things have begun to happen so quickly that I have fallen behind in my blogging on marriage equality developments, so here is a quick summary about events during the third week of November.

Monday, November 17 –  Plaintiffs in the 6th Circuit marriage equality cases from Ohio, Kentucky, Tennessee and Michigan finished filing their petitions for certiorari with the Supreme Court.  These are the first petitions for certiorari in marriage equality cases to be filed with the Court since it denied petitions presenting essentially the same constitutional questions on October 6 in cases from Utah, Oklahoma, Virginia, Indiana and Wisconsin.  Since October 6, the Supreme Court had consistently denied applications to stay district court marriage equality rulings from other states in the 10th and 4th Circuits, as well as applications from states in the 9th Circuit, where the Court of Appeals struck down the Nevada and Idaho bans on same-sex marriage on October 7.  Cert petitions from the Ohio and Tennessee cases had been filed on Friday, November 14, and the petitions from the Michigan and Kentucky cases were filed on November 17.  The state respondents have up to thirty days to file responses, although they are not required to file anything.  There was wide speculation that the Supreme Court will grant one or more of these petitions once the filings are complete and the cases are scheduled for consideration at a conference of the Court.  If one or more petitions are granted by mid-January, it is likely that the cases can be scheduled for argument in the spring with decisions forthcoming by the end of the Court’s term in June.  If the Court takes longer to decide whether to grant a petition, it is possible that these cases would not be argued until the Fall 2015 term, with decisions coming by June 2016.  Thus, as Justice Antonin Scalia predicted in his dissent in the 2013 DOMA ruling, U.S. v. Windsor, the question of same-sex marriage would be back before the Court within a year or two of that ruling.

The speculation about what the Court will do was fueled in part by Justice Ruth Bader Ginsburg’s comments during an appearance at the University of Minnesota Law School in September, when she remarked that the Justices saw no urgency in taking up this issue as long as all the courts of appeals were deciding cases the same way, but that a circuit split would generate such urgency.  She specifically referenced the then-pending 6th Circuit case as possibly meeting that contingency.  Now the 6th Circuit has dropped that bomb, opening up a split with the 4th, 7th, 9th and 10th Circuits.

Also on Monday, November 17, Arizona Attorney General Thomas C. Horne filed a notice of appeal in Connolly v. Roche, seeking review of the U.S. District Court’s decision striking down Arizona’s state constitutional and statutory bans on same-sex marriage.  A.G. Horne had not sought a stay in that case, stating at the time that it would be “futile” to seek a stay from the 9th Circuit in light of its October 7 ruling in Latta v. Otter.  However, one suspects that Horne was under terrific political pressure to appeal the ruling regardless, and he announced a motivation of trying to avoid paying a large attorney fee award to the plaintiffs.  Of course, his appeal will contend that the district court erred in striking down the marriage ban.  The 9th Circuit set a deadline of February 25 for the state’s brief in support of its appeal, and set March 27 as the due date for the Appellee’s answering brief, so this case would not be argued until April or later.

Tuesday – November 18.  This was an incredibly busy day for marriage equality developments.  The 4th Circuit Court of Appeals turned down a motion by South Carolina Attorney General Alan Wilson for a stay of the U.S. District Court’s order requiring the state to allow same-sex couples to marry.   Wilson sought the stay pending his filing an appeal in the 4th Circuit from last week’s ruling by the District Court in Condon v. Haley.  As soon as he received the 4th Circuit’s order turning down his request, Wilson filed an “emergency application” with Chief Justice John Roberts seeking a stay from the Supreme Court.  Meanwhile, U.S. District Judge J. Michelle Childs issued her ruling on a pending summary judgment motion in Bradacs v. Haley, a marriage recognition case, holding the state’s refusal to recognize same-sex marriages performed in other jurisdictions to be unconstitutional.  The South Carolina Supreme Court had previously blocked the issuance of marriage licenses in the state to same-sex couples pending a ruling by Judge Childs, so her decision, in combination with the 4th Circuit denial of a stay in the Condon case and the lack of any immediate Supreme Court response to Wilson’s application, combined to bring marriage equality to South Carolina beginning on November 19.

There was another important development on November 18.  The 9th Circuit Court of Appeals posted a brief statement on the webpage it had opened up for developments in Hamby v. Parnell, Alaska’s appeal of a December 13 marriage equality ruling.  The state had requested that its appeal go directly to an en banc panel, bypassing the usual three-judge panel, as a three-judge panel would have been bound by the Circuit’s ruling in Latta v. Otter (as to which a petition for rehearing en banc filed by Idaho Governor Butch Otter is pending before the court).  The notice stated: “No active judge has requested a vote to hear this case initially en banc within the time allowed by General Order 5.2a.  The request is therefore denied.”  A briefing schedule order previously issued by the court suggests that the case will not be ready for oral argument until sometime in the spring.  This may also foreshadow a denial of Governor Otter’s pending petition for en banc review.

But that’s not all for November 18.  Also heard from that date was the Kansas Supreme Court, with a ruling in State v. Moriarty, a lawsuit instigated by Kansas Attorney General Derek Schmidt against 10th Judicial District Chief Judge Kevin P. Moriarty, who had responded the U.S. Supreme Court’s refusal to review the 10th Circuit marriage equality cases by deciding that because Kansas was in the 10th Circuit its ban on same-sex marriages was unconstitutional; thus, Moriarty ordered that clerks under his jurisdiction should begin issuing marriage licenses to same-sex couples.  Schmidt vociferously disagreed, taking the position that Kansas was entitled to its day in court on the constitutionality of its own marriage ban, even though the Kansas ban does not differ in any constitutionally material respect from the bans struck down in Utah and Oklahoma by the 10th Circuit.  Federalism, federalism! cried Schmidt.  The Kansas Supreme Court had responded to Schmidt’s suit by putting a temporary hold on Moriarty’s order.  On November 18, the court issued a somewhat ambiguous decision.  It seems that a federal district court ruled on November 4 that the Kansas ban was unconstitutional, the 10th Circuit had refused to stay that ruling, and the Supreme Court had denied an emergency application by the state for a stay pending appeal to the 10th Circuit.  But the district court’s preliminary injunction in that case specifically named only the clerks in two counties who were named defendants, and Schmidt took the position that no other clerks in the state were bound to issue licenses.  The Kansas Supreme Court’s November 18 decision lifted its temporary stay against Judge Moriarty’s order, but without taking a position on whether the U.S. District Court’s ruling was binding on all Kansas judicial district clerks, while noting of course that a state official, the Secretary of Health and Environment, was also a defendant in the federal case.  By the end of the week there was considerable confusion in Kansas, as many clerks were issuing licenses, others were not, and various state agencies were taking the position that until there was a final appellate resolution of the federal case, they were taking their marching orders from Attorney General Schmidt to deny recognition to same-sex marriages for purposes of state law.  This prompted an announcement by the ACLU that it was considering amending its lawsuit before U.S. District Judge Daniel Crabtree to seek a broader preliminary injunction ordering the state to recognize the marriages.  The Kansas Supreme Court made clear in its November 18 decision that same-sex couples who obtained a valid marriage license from a clerk in the counties that were issuing them could have their marriages performed anywhere in the state — just to muddy the waters further.

Wednesday – November 19.  On this date it was Montana’s turn. . .  Montana was the last state within the jurisdiction of the 9th Circuit that lacked a district court marriage equality ruling, until District Judge Brian Morris issued his Order in Rolando v. Fox, holding that the state’s same-sex marriage ban was unconstitutional, and issuing an injunction to “take effect immediately” requiring the state to allow same-sex couples to marry.  Realizing that filing a stay application would be futile, Attorney General Tim Fox immediately filed a notice of appeal with the 9th Circuit while same-sex marriages commenced in the state.  The 9th Circuit issued a briefing schedule under which an oral argument will not happen before April or later.

Thursday – November 20.  Lambda Legal, representing plaintiffs in the Louisiana marriage case, in which an appeal was already pending before the 5th Circuit with oral argument scheduled to take place in tandem with the state of Texas’s appeal from a decision rendered last spring, filed a cert petition with the Supreme Court, asking that Court to by-pass the 5th Circuit and take Lambda’s appeal from District Judge Feldman’s decision directly.  Lambda pointed out in its petition that there is already a circuit split, so no need to prolong things with arguments in more circuits.   It’s time for the Supreme Court to step in and make a nationally-binding decision.  (The other circuits in which appeals are pending are the 11th [Florida], the 8th [Missouri] and the 1st [Puerto Rico].)  Lambda also pointed out that granting cert in both the Louisiana case and one of the 6th Circuit cases would bring into play an unbroken string of states from the southern to the northern borders of the United States.  Later in the day, the Supreme Court posted its response to South Carolina Attorney General Wilson’s application for a stay.  The Court denied the application, noting that Justices Scalia and Thomas would have granted it.

Neither Scalia nor Thomas amplified their opposition with any written statement, but Thomas had gone on record as disagreeing with the Court’s decision to deny all the pending marriage equality certiorari petitions on October 6 when he filed a dissent from a denial of cert in an unrelated case, arguing that the Court needn’t wait for a circuit split in order to deal with questions of national importance from the lower courts, and citing the marriage petitions as examples of his point.

Also on November 20, the Arkansas Supreme Court heard arguments in the state’s appeal of Judge Chris Piazza’s ruling invalidating the Arkansas same-sex marriage ban from earlier in the year, and given the speed with which things are moving, a decision would be expected shortly.

Thus, as the busy week ended, the count of marriage equality states was continuing to trend upwards towards and beyond 35, even in the wake of the 6th Circuit’s anti-marriage-equality ruling, which seemed to have had little effect on the district courts that issued decisions this week.


Alaska Joins the Marriage Equality Column

Posted on: October 13th, 2014 by Art Leonard No Comments

Over the protest of Alaska Governor Sean Parnell, who vowed to undertake what appears to be a futile appeal, U.S. District Judge Timothy M. Burgess issued a surprise marriage equality ruling on Sunday, October 12, in Hamby v. Parnell, 2014 WL 5089399, 2014 U.S. Dist. LEXIS 145876.  Burgess held a hearing on the 10th and told the parties that he would issue a ruling “soon,” but nobody was expected a Sunday ruling just two days later.  Burgess made his injunction effective immediately, and the state’s Bureau of Vital Statistics announced marriage license applications could be filed on Monday morning.  Alaska’s marriage laws provide that licenses are not issued until three days after the application is filed, and a marriage cannot be performed until a license is issued.  However, couples already married in other jurisdictions won immediate recognition for their marriages.

The state filed a motion with Judge Burgess on October 13 seeking a stay of the ruling, premised on the argument that the 9th Circuit might grant en banc review in %Latta v. Otter% as requested by Idaho Governor Butch Otter, or that a circuit split might open up soon leading the Supreme Court to take a marriage equality case for review.  The state contended that allowing same-sex marriages to begin in Alaska while these possibilities existed could cause “chaos” in the administration of the state’s marriage laws.  That didn’t seem a very convincing argument, in light of the 9th Circuit’s action announced on Oct. 13 allowing same-sex marriages to start in Idaho effective October 15.

Judge Burgess’s ruling was virtually pre-ordained, as the U.S. 9th Circuit Court of Appeals, which has jurisdiction over appeals from Alaska, had issued a unanimous ruling on October 7 striking down same-sex marriage bans in Nevada and Idaho, and the Supreme Court had denied Idaho’s application for a stay late on Friday, October 10.   Some Idaho clerks had already begun issuing marriage license to same-sex couples upon word that a temporary stay issued on October 8 by Supreme Court Justice Anthony Kennedy had been lifted.

Burgess went beyond the 9th Circuit’s ruling.  The 9th Circuit three-judge panel was unanimous in finding that the Nevada and Idaho bans violate the Equal Protection Clause of the 14th Amendment, applying the circuit’s “heightened scrutiny” standard to laws that discriminate because of sexual orientation.  One member of that panel concurred, arguing that the ban was also a form of sex discrimination.  Another member concurred in an opinion arguing that the bans violate the Due Process Clause by impairing the fundamental right to marry.

Judge Burgess, who was appointed to the court in 2005 by President George W. Bush, ruled on both Due Process and Equal Protection grounds.

Rejecting the state’s argument that the plaintiffs were seeking a “new” constitutional right of “same-sex marriage,” Burgess pointed out that although the Supreme Court’s cases describing marriage as a fundamental right had all involved different-sex couples, “nothing in the decisions indicates that the fundamental right to marry is circumscribed by other defining characteristics (e.g., in this case, a fundamental right to ‘male-female marriage’).  The Supreme Court has never described or defined marriage as a right that is dependent upon the particular facts of the case before it or a right belonging to a particular group; on the contrary, its discussion of marriage has consistently been ‘in broad terms independent of the persons exercising it,” quoting from the 10th Circuit’s decision in Kitchen v. Herbert, the Utah same-sex marriage case.

“The Court has been called upon to use reasoned judgment to interpret the right to choose whom to marry and the breadth of that right under substantive due process,” wrote Burgess.  “It is in consideration of this duty that the Court finds that marriage between individuals of the same sex is encompassed by our nation’s longstanding fundamental right to marry.”  Furthermore, Burgess found it to be “obvious” that the Alaska same-sex marriage ban violated this right.  “While homosexuality and the union of same-sex couples through marriage may be against the beliefs or beyond the moral parameters of some Americans,” he continued, “the core purpose of the Fourteenth Amendment is to protect an individual’s freedom by ensuring that a constitutional right is not ‘infringed simply because a majority of the people choose that it be.’  Alaska’s laws prohibiting same-sex marriage ‘usurp, disregard, and disrespect’ the fundamental right of all homosexuals to choose who to marry; a right of liberty, privacy, and association freely given to heterosexuals.”  Burgess concluded that the state’s ban also violated the right of same-sex couples married elsewhere to have their marriages recognized in Alaska.

Turning to the Equal Protection argument, Burgess held that he was bound to apply “heightened scrutiny” as required by 9th Circuit precedent, placing the burden on Alaska to justify its marriage ban.  He found that the interests argued by the state were insufficient to meet this burden.  While conceding the government’s interest in allowing citizens to “vote and decide critical issues affecting their lives,” Burgess found that this interest could not justify letting the state “exercise its power to define marriage in a way that infringes upon individuals’ constitutional rights.”

“Even if a majority of citizens disapprove of homosexuality, an infringement on same-sex couples’ constitutional rights ‘must be predicated on legitimate state concerns other than disagreement with the choice the individual has made,'” since “fundamental rights may not be submitted to a vote.”  Burgess’s discussion weaved together quotations from the 9th Circuit’s Nevada and Idaho decision, as well as the 7th Circuit’s earlier decision on marriage bans from Wisconsin and Indiana.  But, ultimately, he found that there was no rational or logical relationship between Alaska’s interest in letting its citizens vote on policy issues and its obligation to respect the constitutional rights of gay citizens.  Similarly rejecting an argument from “tradition,” Burgess quoted from 7th Circuit Judge Richard Posner’s musings about the terrible traditions that nobody would want to preserve.

Turning to the state’s argument that its ban was justified by concern for children, Burgess pointed out that children being raised by same-sex couples would benefit from their parents being able to marry.  “It is estimated that 23% of same-sex couples in Alaska are raising children (biological, adopted, or step-children), the third highest percentage in the nation,” he wrote.  “Preventing these individuals from participation in marriage places upon them unwarranted social, economic, and political burdens and prevents them from obtaining the extensive benefits and protection that are provided to families of opposite-sex couples.”

“By singling out homosexual couples and banning their ability to marry an individual of their choosing,” wrote Burgess, “it is impossible to assert that all Alaskans are equal under the state’s laws.”

Concluding in a way that signaled that he would have found the marriage bans unconstitutional even under the more deferential rational basis test, Burgess wrote, “In sum, any relationship between Alaska’s same-sex marriage laws and the government interests asserted by Defendants is either nonexistent or purely speculative.  Alaska’s same-sex marriage laws are a prime example of how ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.’  Refusing the rights and responsibilities afforded by legal marriage sends the public a government-sponsored message that same-sex couples and their familial relationships do not warrant the status, benefits, and dignity given to couples of the opposite sex.”

Burgess concluded by declaring the laws unconstitutional “for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution,” and enjoined the state from enforcing those laws to exclude same-sex couples from marriage.

The plaintiffs in the case, four same-sex couples who married elsewhere and sought recognition of their marriages in Alaska and one couple seeking to marry in the state, were represented by Alaska attorneys Caitlin Shortell, Allison Mendel and Heather Gardner.

The Alaska ruling came just days after the Supreme Court had lifted Justice Kennedy’s temporary stay in the Idaho case, and shortly after the Coalition for the Protection of Marriage had withdrawn its applications to the Supreme Court and the 9th Circuit seeking a stay of the Nevada marriage ruling.  When all of these factors were added up, it appeared that almost a dozen states had been added to the marriage-equality list since Monday morning, October 6, when the Supreme Court announced that it would not review any of the pending appeals from marriage equality rulings by the 4th, 7th and 10th Circuit courts of appeals, bringing the total to 30 marriage equality states, taking in an overwhelming majority of the nation’s population.  Pending trial court action in at least five other states in the 4th, 9th and 10th circuit portended further developments soon, and an opinion could come at any time in the 6th Circuit, where appeals from four states were argued in August.