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8th Circuit Rules on Pending State Marriage Equality Appeals

Posted on: August 14th, 2015 by Art Leonard No Comments

When the U.S. Supreme Court ruled on June 26 in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment, it technically reversed a ruling by the 6th Circuit Court of Appeals, which had in November 2014 itself reversed rulings issued by federal district judges earlier in that year striking down state bans on same-sex marriage in each of the states in the circuit.  Thus, as a technical matter the Supreme Court was just directly holding that the same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee violate the 14th Amendment. 


As of June 26, appeals were pending before the 8th Circuit Court of Appeals from three states – South Dakota, Nebraska, and Arkansas – where the states were contesting district court rulings striking down their same-sex marriage bans.  The 8th Circuit had scheduled oral arguments to take place in the spring, but the court cancelled the arguments, putting all the state appeals on hold while the Supreme Court case was pending.


After the Supreme Court ruled, plaintiffs in the 8th Circuit cases asked the court of appeals to affirm the district court rulings and enjoin the three states from enforcing their same-sex marriage bans.  The three states, on the other hand, claimed that they had begun to issue marriage licenses to same-sex couples and to recognize same-sex marriages in response to the Obergefell decision.  As a result, they argued, the lawsuits against them were moot, since there was no longer a live legal controversy to be decided by the court of appeals.  They urged the 8th Circuit to vacate the district court opinions and instruct the district courts to dismiss these lawsuits as moot, opposing the plaintiffs’ requests that the 8th Circuit uphold the district court injunctions. 


On August 11, an 8th Circuit three judge panel issued three per curiam rulings, rejecting the state arguments using almost identical language holding the state bans unconstitutional pursuant to the Obergefell decision and tailoring remedies for the situations presented by each of the states.  The panel consisted of Circuit Judges Roger L. Wollman, Lavenski R. Smith, and William D. Benton.


In Rosenbrahn v. Daugaard, the South Dakota case, District Judge Karen E. Schreier had issued a declaratory judgement and a permanent injunction, but stayed the injunction pending appeal.  In Jernigan v. Crane, the Arkansas case, District Judge Kristine G. Baker had similarly issued a declaratory judgment and a permanent injunction, staying the injunction pending appeal.  In Waters v. Ricketts, the Nebraska case, District Judge Joseph F. Bataillon had not issued a declaratory injunction yet, but had granted the plaintiffs’ motion for a preliminary injunction and the state had filed an appeal from that ruling, with the 8th Circuit staying the preliminary injunction pending ruling on the appeal.


The court of appeals first addressed the issue of mootness.  It found that the states’ “assurances of compliance with Obergefell do not moot the case” although the assurances “may, however, impact the necessity of continued injunctive relief.”  The court premised its mootness ruling on the precise language that Justice Anthony M. Kennedy had used in his opinion for the Supreme Court, where he said that “the State laws challenged by Petitioners in these cases are now held invalid.”  Wrote the 8th Circuit, “The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee” but not explicitly in the three states whose appeals were before the 8th Circuit!  Furthermore, the Supreme Court had not directly addressed “all issues raised by Plaintiffs here” and none of the three states had repealed their constitutional amendments or statutory bans on same-sex marriage. 


Of course, as none of the states in the 6th Circuit had filed petitions for rehearing with the Supreme Court, the Obergefell case is at an end, and the Supreme Court’s decision creates a binding precedent that the 8th Circuit Court of Appeals must follow.  Thus, the court found, it was appropriate to affirm the district court declaratory judgments in South Dakota and Arkansas, and to affirm the preliminary injunction in Nebraska and send that case back to the district court for an entry of final judgment in favor of plaintiffs on the merits.


Turning to the question of injunctive relief, the court of appeals panel felt that it should be up to the district judges in each case to decide whether injunctive relief is warranted in light of post-Obergefell developments.  Although the states claimed that they have been complying with the Obergefell ruling, the challenged constitutional amendments and statutes are still on the books, so the court decided it was within the discretion of the district judges to determine whether injunctions are necessary at this point. 


Local attorneys were heavily involved in the three lawsuits that were being appealed, all of which had multiple plaintiffs and many organizations filing amicus briefs.  In terms of national movement legal involvement, the Nebraska case was brought with the assistance of the ACLU’s LGBT Rights Project and the ACLU of Nebraska and the South Dakota case was brought with the assistance of the National Center for Lesbian Rights.  The lists of organizations and attorneys filing amicus briefs actually take up more pages than the brief opinions issued by the court of appeals in these cases. 


The next step, of course, will involve filing of motions for the award of attorney fees to the plaintiffs under federal statutes authorizing such awards to prevailing parties in civil rights litigation.  It was widely speculated that the states were seeking to have the district court opinions vacated and the cases dismissed at least in part to give them an argument for avoiding having to pay attorney fees to the plaintiffs.  The 8th Circuit’s orders affirming the district court decisions should forestall that, since there can be no argument that the plaintiffs are not “prevailing parties,” having obtained the ruling on the merits that they sought.  In other parts of the country, several courts have made substantial fee awards to the attorneys who have represented plaintiffs in the marriage equality cases over the past several years, and new awards have begun to be issued in response to post-Obergefell motions.


Arkansas Trial Court Orders State Recognition of “Window Period” Marriages

Posted on: June 10th, 2015 by Art Leonard No Comments

An Arkansas trial judge ordered the state on June 9 to recognize and extend all rights and privileges of marriage to more than 500 same-sex couples who married during May 2014 while the state sought a stay of a trial judge’s order striking down Arkansas’s same-sex marriage ban.

On May 9, 2014, Arkansas Circuit Judge Chris Piazza ruled in Wright v. State of Arkansas, 60CV-13-2662, that the state’s ban on same-sex marriage was unconstitutional, granting summary judgment to the plaintiffs, and specifically holding unconstitutional Amendment 83 (the Arkansas marriage amendment) and Act 144 of 1997 (the statute defining marriage in Arkansas as between a man and a woman).  While the state sought a stay from the Arkansas Supreme Court, same-sex couples began to obtain marriage licenses and get married pursuant to Judge Piazza’s decision.

Counsel for plaintiffs then brought to the judge’s attention that his order did not specifically mention all of the relevant statutes, and on May 15 he sent a letter to all counsel advising them that he was filing a new order clarifying the May 9 opinion and making clear that Act 146 of 1997, which specifically forbids issuing marriage licenses to or recognizing the marriages of same-sex couples, is also unconstitutional.  This new order was issued nunc pro tunc, meaning that it was intended to relate back to the May 9 decision, in order to protect the reliance interests of those who had married after the May 9 decision was announced.  On May 16, 2014, the Arkansas Supreme Court stayed Judge Piazza’s decision pending appeal.  The appeal was argued later in 2014, but changes in membership of the Arkansas Supreme Court  after the argument led to a period of delay and confusion in figuring out which judges should participate in deciding the appeal.  Ultimately this confusion – apparently to a large extent manufactured by some members of the court to avoid ruling on the merits – may delay things until after the U.S. Supreme Court issues its decision in Obergefell v. Hodges, obviating the need for the timorous Arkansas supreme court justices to have to rule in this case.  Also, during 2014 a federal district court in Arkansas issued a similar decision striking down the state’s marriage ban that was immediately stayed pending appeal, and the U.S. Court of Appeals for the 8th Circuit put the appeal “on hold” pending the Supreme Court’s ruling in Obergefell.

During the May 9-May 16 “window period” before Judge Piazza’s order was stayed, hundreds of same-sex couples married in Arkansas.  However, the state refused to recognize those marriages as valid.  This prompted a new lawsuit on behalf of two same-sex couples who married on May 12, but who were being denied the right to file joint tax returns and, in one case, to enroll a spouse in a state employee health insurance benefit program.  The state’s argument was that these marriages were invalid ab initio because Judge Piazza lacked the power to make his clarifying opinion retroactive.  According to the state, since Judge Piazza’s order was stayed, Act 146 remained in effect, precluding the state from recognizing these marriages.

On June 9, 2015, Circuit Judge Wendell Lee Griffen decisively rejected the state’s argument in Frazier-Henson v. Walther, No. CV-15-569 (Arkansas, Pulaski Co. Cir. Ct.).  Judge Griffen found that Rule 60 of the Arkansas Rules of Civil Procedure specifically authorizes judges to “correct errors or mistakes” or “to prevent the miscarriage of justice” by modifying judgments that they have issued, including “errors therein arising from oversight or omission.”  It was clear in this case that Judge Piazza’s omission of Act 146 from his original opinion was an oversight, as reflected in the overall opinion granting summary judgment to the plaintiffs and holding unconstitutional the state’s ban on same-sex marriage.  Further, Judge Griffen opined that it would constitute a miscarriage of justice not to accord recognition to the marriages contracted during the window period.

Judge Griffen used harsh language to characterize the position of defendant Larry Walther, Director of the Arkansas Department of Finance and Administration.  “With shameless disrespect for fundamental fairness and equality, Director Walther insists on treating the marriages of same-sex couples who received marriage licenses between May 9 and May 15 as ‘void from inception as a matter of law’.  Meanwhile, Director Walther asserts that ‘heterosexual marriages performed in the State of Arkansas between May 10, 2014 and May 16, 2014 are valid’.  This Court categorically rejects Director Walther’s manifestly inaccurate and tortured misinterpretation of Rule 60 of the Arkansas Rules of Civil Procedure.  If the position Director Walther asserts would not produce a ‘miscarriage of justice’ as that term is understood within the meaning of Rule 60(a), the words ‘miscarriage’ and ‘Justice’ have no meaning.”  The court ordered Walther to recognize all of the marriages contracted during the window period, to allow joint tax filings by those couples, and to allow same-sex spouses married during the window period to enroll in the state’s employee benefits program.

Associated Press reported that Arkansas Attorney General Leslie Rutledge did not immediately state whether she would seek a stay of Griffen’s ruling.   She asserted, “These marriages do not fall within the state’s definition of marriage as between one man and one woman.  I am evaluating the ruling and will determine the best path forward to protect the state’s interest.”

Judge Griffen was among the trial judges who officiated same-sex marriages during the window period, according to the AP report.

Arkansas attorney Cheryl K. Maples represents the plaintiffs.

The Dominoes Continue to Fall as Federal Courts Strike Arkansas and Mississippi Marriage Bans

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

On November 25, 2014, U.S. district court judges in Arkansas and Mississippi issued rulings declaring unconstitutional the constitutional and statutory bans on same-sex marriage in those states.  In Arkansas, District Judge Kristine G. Baker stayed her ruling pending an appeal to the 8th Circuit Court of Appeals by the state, but the situation was complicated by another marriage equality case pending before the state’s Supreme Court, which may render this ruling superfluous depending on timing.  In addition, Attorney General Dustin McDaniel, a Democrat who personally supports same-sex marriage but who had claimed to be defending the ban as his duty, indicated that he would confer over the Thanksgiving holiday with the incoming Republican Attorney General, Leslie Rutlage, an opponent of same-sex marriage, before deciding whether to appeal.  In Mississippi, District Judge Carlton W. Reeves granted the state a two-week stay during which it may seek a further stay pending appeal from the 5th Circuit Court of Appeals, where marriage equality cases from Texas and Louisiana are scheduled for argument on January 9.  There was little doubt that the state would immediately seek a stay from the 5th Circuit.

Both of the judges who ruled on November 25 were appointed by President Barack Obama and seated during his first term of office, Judge Reeves in 2010 and Judge Baker in 2012.

Although dozens of federal district judges have issued rulings in similar cases over the past year, neither of these judges skimped on their opinions, exploring both procedural and substantive issues in depth, as their opinions will likely be appealed to circuit courts that have yet to weigh in on the questions presented.  Both judges were undeterred by the recent ruling by the U.S. Court of Appeals for the 6th Circuit, rejecting challenges to the marriage bans in Ohio, Michigan, Tennessee and Kentucky.  Both judges were not persuaded by 6th Circuit Judge Jeffrey Sutton’s reliance on the Supreme Court’s 1972 summary affirmance of negative ruling by the Minnesota Supreme Court as a currently binding precedent, finding that it had been superseded by more recent developments in the Supreme Court, and emphasizing that the overwhelming majority of federal courts considering this issue over the past year have found Baker to be no impediment to striking down the bans.

Both judges were writing their opinions against the obstacles of circuit court rulings that preluded certain doctrinal moves.  In the 8th Circuit, a 2006 decision rejecting a challenge to Nebraska’s constitutional amendment included language indicating that the court believed the amendment would survive rational basis review, which that court deemed the appropriate standard for evaluating claims of sexual orientation discrimination.  Undeterred, Judge Baker followed the lead of 9th Circuit Judge Marsha Berzon, whose concurring opinion in the Nevada/Idaho marriage ruling of October 7 argued that bans on same-sex marriage are a form of sex discrimination, and thus merit heightened scrutiny.  In the 5th Circuit, prior precedents also reject heightened scrutiny for sexual orientation discrimination claims.  This did not deter Judge Reeves, who found that the Mississippi marriage ban fails even the usually deferential rational basis test.

Both judges also ruled against the same-sex marriage bans under an alternative Due Process theory, finding that Supreme Court precedents recognize a fundamental constitutional right to marry as an individual right of every citizen, subjecting to strict scrutiny any attempt by the state to interfere with the choice of marital partner.  A law that does not survive rational basis review or heightened scrutiny cannot, by definition, survive strict scrutiny, the most demanding level of judicial review.

Both judges were also careful to address various procedural and jurisdictional arguments raised by the state defendants, systematically and respectfully analyzing and then rejecting them.  Judge Baker confronted a particularly complicated argument, as the Arkansas Supreme Court held oral arguments less than a week earlier in the state’s appeal of a trial judge’s marriage equality ruling from earlier in 2014, and there is some argument that federal courts should abstain from deciding issues that are pending in the state courts.  Judge Baker demonstrated that there were distinctions between the cases that counseled against federal court abstention, not least that the plaintiffs in the federal case were not participating in the state case.  Both judges emphasized the duty of federal courts to deal with federal constitutional claims when they are appropriately presented by plaintiffs have meet the standing requirements.

The plaintiffs in the Arkansas case had presented Judge Baker with a panoply of constitutional arguments, and she carefully picked among them, rejecting — as have some other judges in recent decisions — the argument that the state’s failure to recognize marriages contracted out of state violates the constitutional right to travel between the states, as well as rejecting the plaintiff’s sexual orientation discrimination claim.  However, she found that while the plaintiffs had met all the tests required to obtain an injunction against the state, the Supreme Court’s issuance of a stay in January in the Utah case set the path for her response to the state’s request in this case to keep the ruling from going into effect while the state appeals.  However, she wrote, “If no timely notice of appeal is filed, this injunction shall take immediate effect upon the expiration of the time for filing a notice of appeal.”

Judge Reeves’ decision was substantially longer than Judge Baker’s, because he decided, despite 5th Circuit precedent, to take on the question whether sexual orientation discrimination claims should be subjected to heightened or strict scrutiny.  One suspects this was a reaction to extraordinary briefing on the question provided by the plaintiffs and their amici.  As a result, Reeves’ opinion includes within it a virtual monograph on the history of anti-gay discrimination in Mississippi, leading him to explicitly counter the suggestion by some judges that gay marriage litigants don’t need the assistance of the federal courts since they can obtain the right to marry through the ordinary political process.  While that might be possible someday in Michigan, for example, wrote Reeves, it seemed unlikely in Mississippi.

“A common argument against homosexual equality is that the gay and lesbian community is so popular that it needs no judicial protection from the will of the majority,” wrote Reeves.  “In this vein, the U.S. District Court for Nevada, which upheld that state’s same-sex marriage ban until the Ninth Circuit reversed, found that ‘the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals.’  He noted that the President now supports same-sex marriage.  But pointing to statements of popular support, those of individual politicians, or even the national ‘climate’ is not the standard.  The standard is whether homosexuals in Mississippi have ‘the strength to politically protect themselves from wrongful discrimination.’  Much of that discrimination, of course, happens at the state and local levels, far from celebrities and national politicians.  On this question, it can only be concluded the Mississippi’s gay and lesbian community does not have the requisite political strength to protect itself from wrongful discrimination.”  He noted particularly that the Mississippi anti-gay marriage amendment passed by the largest margin of any of the numerous such measures that appeared on state ballots in 2004, as well as the recent enactment of a measure that “was perceived to condone sexual orientation discrimination” by allowing businesses to deny their services based on the owners’ religious objections.

Thus, argued Reeves, if he were free from binding 5th Circuit precedent, he would apply heightened scrutiny to the plaintiffs’ sexual orientation claim, and he suggested that the 5th Circuit should reconsider its precedent.  He would not take the alternative approach of treating this as a sex discrimination case in order to apply heightened scrutiny because, as he pointed out, it was unnecessary to do so.  He was invalidating the ban using strict scrutiny under the Due Process Clause, and he also found that none of the state’s articulated justifications for the ban even met the less demanding rational basis test for an Equal Protection analysis.

Both Reeves and Baker, countering contentions by the state that U.S. v. Windsor was a federalism ruling that support the state’s right to ban same-sex marriages, invoked Justice Scalia’s dissents in Windsor and Lawrence v. Texas, in which one of the most conservative justices on the Supreme Court asserted that the reasoning of the Court in those cases would create an argument in support of a constitutional right for same-sex couples to marry.

“Today’s decision may cause uneasiness and concern about the change it will bring,” he concluded.  “But ‘things change, people change, times change, and Mississippi changes, too,” he wrote, quoting the former segregationist governor, Ross R. Barnett, Jr., who he commented “knew firsthand” the truth of these words.  “Mississippi continues to change in ways its people could not anticipate even 10 years ago,” when the marriage amendment was passed.  “Allowing same-sex couples to marry, however, presents no harm to anyone.  At the very least, it has the potential to support families and provide stability for children.  This court joints the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law.  The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children.  Mississippi’s statute and constitutional amendment violate the Fourteenth Amendment to the United States Constitution.”

Lead counsel for plaintiffs in the Mississippi case is Roberta Kaplan of New York’s Paul Weiss Rifkind Wharton & Garrison, who represented Edith Windsor in her successful challenge to Section 3 of the federal Defense of Marriage Act.  Jack Wagoner, a Little Rock attorney, is lead counsel in the Arkansas case.

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.


Arkansas Judge Strikes Down State Ban on Same-Sex Marriage in a Case of “Epic Constitutional Dimensions”

Posted on: May 10th, 2014 by Art Leonard 1 Comment

Pulaski County Circuit Judge Christopher Charles Piazza ruled on May 9 that Arkansas’s same-sex marriage ban violates the 14th Amendment of the federal constitution as well as Article 2, Section 3 of the Arkansas Constitution’s Declaration of Rights. Judge Piazza, who made no mention of a stay in his ruling, waited until after county clerk offices had closed on Friday afternoon to release his decision in the case of M. Kendall Wright v. Nathaniel Smith. Some clerks issued licenses on Saturday May 10, and more on Monday, May 12, as Judge Piazza denied the state’s motion for a stay. The state Supreme Court then ruled that no motion for a stay was necessary, since Piazza had not specifically invalidated a state law that prohibits clerks from issuing marriage licenses to same-sex couples. Judge Piazza then clarified his ruling (on May 15) to extend to the statute in question, and clerks resumed issuing marriage licenses in some counties as the state again sought a stay from the Supreme Court.

Trial judges seem to be striving to out-do each other in eloquence as they write their marriage equality rulings, and Piazza was no exception. He ended his opinion by referring to the U.S. Supreme Court’s famous ruling on interracial marriage, Loving v. Virginia, “It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.”

Although two state court systems — New Jersey and New Mexico — have produced marriage equality decisions since the Supreme Court struck down Section 3 of the Defense of Marriage Act last year in U.S. v. Windsor, Judge Piazza’s decision was the first to do so on both federal and state grounds in a state that has an anti-gay marriage amendment. The amendment was enacted as part of Karl Rove’s 2004 campaign strategy to re-elect George W. Bush by drawing conservative voters to the polls with anti-gay marriage initiatives in key states. That strategy had high salience because the Massachusetts Supreme Judicial Court’s order to allow same-sex couples to marry — the first such in the nation — went into effect on May 17, 2004, amidst a frenzy of media attention prompted by San Francisco Mayor Gavin Newsom’s attempt to let same-sex couples marry in that city, followed by copy-cat actions by some local authorities in Oregon, New Mexico and New York. The Arkansas amendment, constitutionalizing a statute that had been enacted almost a decade earlier in response to same-sex marriage litigation in Hawaii, won support from three-fourths of Arkansas’s voters.

The overwhelming popular approval for the amendment was a centerpiece of the state’s defense of its ban before Judge Piazza. He characterized the amendment vote as “an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent,” he continued. “Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights. The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights ‘may not be submitted to vote; they depend on the outcome of no elections,'” quoting from the U.S. Supreme Court’s historic 1943 flag salute decision, which held that Congress could not legislate to compel religious objectors to salute the flag.

Judge Piazza found that the U.S. Supreme Court has repeatedly characterized the right to marry as a fundamental right, and that considering the factors that the Supreme Court has used to determine the level of scrutiny to apply to discriminatory laws, it was clear that laws that discriminate against same-sex couples invoke at least heightened scrutiny. However, in common with many of the trial judges who have ruled in marriage equality cases over the past year, Judge Piazza found that it was not necessary to apply heightened scrutiny to find the Arkansas marriage ban unconstitutional. “Regardless of the level of review required,” he wrote, “Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review.

Piazza’s decision relied heavily on several key Supreme Court rulings. He quoted extensively from the Court’s decision last year in U.S. v. Windsor, referred to several of the more recent marriage equality decisions, duplicated the Virginia district court’s quotation by Mildred Loving about the significance of her 1967 case, and pointed out that adverse rulings cited by the state all pre-dated the Windsor decision.

“The issues presented in the case at bar are of epic constitutional dimensions,” he wrote, continuing that “the charge is to reconcile the ancient view of marriage as between one man and one woman, held by most citizens of this and many other states, against a small, politically unpopular group of same-sex couples who seek to be afforded that same right to marry. Attempting to find a legal label for what transpired in Windsor is difficult but as United States District Judge Terence C. Kern wrote in Bishop v. United States [the Oklahoma marriage equality decision], ‘this court knows a rhetorical shift when it sees one.’ Judge Kern applied deferential rational review and found no “rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective.”‘”

Judges deciding marriage equality cases have frequently felt the need to provide a brief civics lecture in support of their rulings. Along these lines, Judge Piazza wrote, “The strength of our nation is in our freedom which includes, among others, freedom of expression, freedom of religion, the right to marry, the right to bear arms, the right to be free of unreasonable searches and seizures, the right of privacy, the right of due process and equal protection, and the right to vote regardless of race or sex. The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past.”

However, Judge Piazza was careful to note that the Arkansas Supreme Court has several times in more recent history ruled in favor of gay rights, bolstering Piazza’s conclusion that the Arkansas equal protection clause would also justify his conclusion in this case. In 2002, that court declared the state’s sodomy law unconstitutional. In 2011, that court struck down a state policy prohibiting unmarried opposite-sex and same-sex couples from adopting children, finding that there was no rational basis for it. “The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection describe in” these prior Arkansas Supreme Court rulings, he wrote, asserting: “The difference between opposite-sex and same-sex families is within the privacy of their homes.”

The plaintiffs in this case include twelve same-sex couples seeking to marry in Arkansas and eight same-sex couples seeking to have their out-of-state marriages recognized, so the ruling covers both the right to marry and the right to recognition, although Judge Piazza’s opinion focused almost exclusively on the right to marry and provided no separate analysis on the recognition issue. His focus was broadly on the state’s discrimination against same-sex couples, which logically includes both of these issues.

The state’s stay motion relied heavily on the U.S. Supreme Court’s action in January staying the Utah marriage equality decision. Assistant Attorney General Colin R. Jorgensen wrote, “The Supreme Court grants a stay if there is ‘a fair prospect that a majority of the Court will vote to reverse the judgment below,'” quoting from the Supreme Court’s 2010 decision staying the broadcast of the Proposition 8 marriage equality trial. “Thus, as a matter of law, the Supreme Court has already indicated the likelihood that the Supreme Court will ultimately affirm state marriage laws such as Amendment 83 and Arkansas Act 144 of 1997 (the Arkansas ban on same-sex marriages). More importantly, the Supreme Court has indicated that a stay is appropriate under the circumstances of this case.” Although it seems likely that the Arkansas ruling will be stayed pending appeal, either by Judge Piazza or by the Arkansas Supreme Court, Jorgensen’s suggestion that the U.S. Supreme Court has already signaled that it will reject marriage equality claims by staying the Utah ruling is unduly pessimistic in light of that Court’s subsequent ruling in the Windsor case and the unbroken string of affirmative marriage equality rulings since then by federal and state courts.