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

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

The U.S. Supreme Court announced on January 16, 2015, that it was granting four petitions to review the 6th Circuit Court of Appeals ruling in DeBoer v. Snyder, 772 F.3d 388 (Nov. 6, 2014), which had rejected the claim that same-sex couples have a constitutional right to marry and to have such marriages recognized by other states.  The 6th Circuit’s ruling, issued on November 6 on appeals by four states from district court pro-marriage equality decisions, had opened up a split among the circuit courts, as the 4th, 7th, 9th and 10th Circuits had all ruled in favor of marriage equality claims during 2014, and the Supreme Court had refused on October 6 to review the rulings by the 4th, 7th and 10th Circuits.  (The 9th Circuit ruled was issued the day after the Supreme Court announced the three cert. denials, and only one of the two states involved in that case, Idaho, has filed cert. petitions, on which the Court has not taken action.) DeBoer v. Snyder, No. 14-571, cert. granted, 2015 WL 213650 (Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, cert. granted, 2015 WL 213646 (Jan. 16, 2015); Tanco v. Haslam, No. 14-562, cert. granted, 2015 WL 213648 (Jan. 16, 2015); Bourke v. Beshear, No. 14-574, cert. granted, 2015 WL 213651 (Jan. 16, 2015).  Attorney General Eric Holder, Jr., quickly announced that the Justice Department would file a brief with the Court urging reversal of the 6th Circuit.

The Court’s announcement of the cert. grant was accompanied by an announcement that the cases have been consolidated for the Court’s consideration, and that the grant was limited to the following two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?  The Court allotted 90 minutes for oral argument on Question 1 and 60 minutes for oral argument on Question 2.  Presumably these time allocations were made to assure that attorneys representing each of the four states involved – Ohio, Michigan, Kentucky and Tennessee – would have time to argue, and that representatives of each of the Petitioners would also have sufficient time.   Also, presumably, the questions were phrased this way and the argument divided into two parts because some of the cert. petitions address only marriage recognition, while others asked whether states are required to let same sex couples marry.

Three of the cases were decided on pretrial motions while the Michigan decision (DeBoer) followed a full trial on the merits, providing the Court with a trial record and detailed factual findings by the district court.  The Court limited the parties to briefing on the merits and presenting oral arguments on the questions presented in “their respective petitions.”  Thus the parties in the Ohio (Obergefell) and Tennessee (Tanco) cases will be arguing on Question 2, while the parties in the Michigan (DeBoer) case will address Question 1, and the parties in the Kentucky case (Bourke) case will be arguing on both questions.  Presumably the Court also scheduled a separate argument on the recognition question because it implicates some different doctrinal issues from the marriage argument.  Indeed, the recognition question could be decided by a straightforward extension of U.S. v. Windsor without ever addressing whether states are required to issue marriage licenses to same sex couples, since the states are not really presenting significantly different arguments from those raised by the defenders of DOMA as reasons for the federal government to refuse to recognize same sex marriages.   The Court’s announcement did not specify how the time would be divided between the parties, but presumably Petitioners will get half the time and Respondents will get half the time and perhaps be left to work out among themselves how to allocate the time within their share.  Several LGBT litigation groups are among the attorneys representing Respondents.

The Court’s announcement included a tight briefing schedule calculated to get the case argued and decided before the end of the Supreme Court’s term in June.  Petitioners’ merits briefs are due by 2 pm on Friday, February 27, Respondents’ briefs by 2 p.m. on Friday, March 27, and all reply briefs by 2 p.m. on Friday, April 17.  Potential amici would be subject to the same tight briefing schedule.  The last scheduled argument date on the Court’s calendar for the October 2014 Term is April 29, 2015, so it seems likely the arguments will be held on April 27, 28 or 29, which would give the Court two months to settle on opinions if it wants to release them before the term ends.  According to the Court’s posted calendar, the last date for announcing decisions is June 29, but the Court has been known to extend the end of the term by a few days to dole out end-of-term opinions as they are ready.

The Court’s actions since October 6 may provide some insight in trying to forecast how the Court will ultimately rule.  After it denied certiorari in the cases from the 4th, 7th, and 10th Circuits on October 6, the Court denied all subsequent motions from other states in those circuits to stay subsequent marriage equality rulings issued by district courts there.  The Court similarly denied all motions to stay district court rulings from states in the 9th Circuit after that circuit’s October 7 ruling.  Most significantly, the Court issued an order on December 19, denying a motion by Florida Attorney General Pam Bondi to stay a U.S. District Court marriage equality ruling in that state, pending the state’s appeal to the 11th Circuit Court of Appeals.  That a majority of the Supreme Court was not willing to stay the Florida ruling, even though the case was yet to be decided by the 11th Circuit, spoke volumes about the likely outcome of its decision on the merits.  If a majority of the Court was not willing to stay the Florida ruling pending appeal, it seems likely that a majority of the Court is ready to rule on the merits in favor of marriage equality.  Only Justices Antonin Scalia and Clarence Thomas were announced as disagreeing with the Court’s denial of a stay.  Although it is always hazardous to predict what the Supreme Court will ultimately do on an issue as to which it is likely to be sharply divided, it is also likely that there will be some consistency between the Court’s actions on stay motions after October 6 and its final ruling.  It is worth noting that prior to October 6, the Court granted every stay motion presented by a state seeking to delay lower court marriage equality decisions pending appellate review.

Over two years ago, the Court announced in December 2012 that it would review a decision by the 9th Circuit Court of Appeals that struck down California’s Proposition 8, a state constitutional amendment enacted by voter initiative in 2008 that banned the performance or recognition of same sex marriages in California.  At that time, the Court added a question to those posed by the defenders of Prop 8 in their petition for review of the lower court decision striking it down: whether the Petitioners had “standing” to appeal the original ruling by the district court in San Francisco?  As none of the California officials named as defendants in Perry v. Schwarzenegger was willing to defend Proposition 8 on the merits, the district court had allowed the proponents of the initiative to intervene, and it was they who were appealing the ruling.  During the oral argument in that case, titled Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), some of the time was taken up by arguments about the Petitioner’s standing, but the remaining time was devoted to arguing the merits.  Those curious about the types of questions the Supreme Court justices might pose to attorneys on Question 1 in the DeBoer case can access the audio recording of the oral argument on the Supreme Court’s website.  (The oral argument in Hollingsworth did not focus on the recognition question.)

Based on the Hollingsworth oral argument, there were predictions that the Court might vote 5-4 to strike down Proposition 8, but ultimately the Court concluded, in an opinion by Chief Justice John G. Roberts, Jr., that the Petitioners did not have standing, thus leaving the district court’s ruling in place and effectively striking down Proposition 8 without a Supreme Court ruling on the merits, on June 26, 2013.  Same sex marriages resumed in the nation’s most populous state a few days later.  The dissenting opinion in Hollingsworth was written by Justice Anthony M. Kennedy, Jr., who argued that the Court had erred in finding lack of standing but who carefully limited his opinion from expressing any view as to the constitutionality of Proposition 8.

Justice Kennedy was the author of the other momentous marriage equality decision issued on the same day, United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court voted 5-4 to declare unconstitutional the federal definition of marriage in the Defense of Marriage Act.  In common with Kennedy’s earlier gay rights opinions in Romer v. Evans and Lawrence v. Texas, his Windsor opinion was not ideally clear about its doctrinal grounding, never expressly stating that the case involved a fundamental right or a suspect classification, or merited heightened scrutiny, thus spawning a variety of views from legal commentators and lower court judges and the precedential meaning of the opinion.  The 9th Circuit construed Windsor to be a suspect classification case, and decreed “heightened scrutiny” as the standard to apply in subsequent equal protection cases brought by gay plaintiffs.  See Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, motion for rehearing en banc denied, 759 F.3d 990 (9th Cir. 2014). On this basis the 9th Circuit subsequently struck down the Nevada and Idaho same sex marriage bans in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), petitions for cert. pending.  Some other courts ducked these issues, instead striking down bans on same sex marriage by finding that none of the alleged justifications for the bans survived some form of rational basis review, or that the bans were products of unconstitutional animus.  Some commentators have suggested that Kennedy’s decision is most explicable as being based on his view that DOMA was an expression of animus against gay people by Congress.  Justice Antonin Scalia, dissenting from the Court’s decision, argued, as he had in his Lawrence dissent ten years earlier, that the majority opinion would support claims for the right of same sex couples to marry, and many of the lower court decisions cited and quoted from one or both of his dissents in support of their conclusions.

The Windsor ruling led to an avalanche of marriage equality lawsuits in every state that did not allow same sex couples to marry. The avalanche of lawsuits soon turned into an avalanche of court opinions.  Within weeks of Windsor, the federal district court in Ohio had ordered preliminary relief in Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, July 22, 2013), a marriage recognition case, and in December the district court in Utah issued a ruling on the merits striking down that state’s same sex marriage ban in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah, Dec. 20, 2013).  Dozens of district court rulings and rulings by four circuit courts of appeals followed during 2014, so that by the time the Court granted cert. to review the 6th Circuit decision on January 16, 2015, same sex couples could marry in 37 states and the District of Columbia.  (In two of those states, Kansas and Missouri, disputes about the scope of lower court rulings made marriage available only in certain counties while the litigation continued.) There were also marriage equality district court decisions pending on appeal before the 1st, 5th, 8th and 11th Circuits.  The only federal courts to have rejected marriage equality claims after Windsor were district courts in Louisiana and Puerto Rico and the 6th Circuit Court of Appeals, in the consolidated case from four states that the Supreme Court will review.  A week before granting cert. in the 6th Circuit case, the Court rejected an attempt by Lambda Legal to get direct review of the Louisiana decision, Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014), cert. denied, 2015 WL 133500 (Jan. 12, 2015).  The Court denied that petition just days after the 5th Circuit heard oral arguments in that appeal as well as state appeals from marriage equality rulings in Texas and Mississippi.

The most pressing question presented by the cert. grant, of course, is whether the Court will use this case to declare a constitutional right to marry throughout the United States, and to have those marriages recognized wherever a married couple might travel or reside.  But to those following the course of gay rights in the courts, the question of what rationale the Court uses to decide the case will also be pressing, especially as the various circuit court decisions have adopted different theories that might have a different impact for litigation about other issues.  This case may also give the Court an opportunity to clarify the circumstances under which lower federal courts are bound to follow an old Supreme Court decision whose rationale appears to have been eroded by subsequent legal developments.

The 6th Circuit opinion by Circuit Judge Jeffrey Sutton held that the Supreme Court’s dismissal of a constitutional challenge to Minnesota’s same-sex marriage ban in Baker v. Nelson, 409 U.S. 810 (1972), precluded a ruling for the plaintiffs, as the Supreme Court had never overruled or disavowed that decision, in which the Court had stated that the issue of same-sex marriage did not present a “substantial federal question” with no further discussion or explanation.  That ruling was also cited by the Louisiana and Puerto Rico district courts in their rejection of marriage equality claims, and it played a prominent role in a lengthy dissenting opinion issued just a week earlier by 9th Circuit Judge Diarmuid O’Scannlain, protesting his court’s refusal to reconsider its marriage equality ruling as requested by Idaho Governor Butch Otter.  See Latta v. Otter, 2015 WL 128117 (Jan. 9, 2015).

The question of the continuing precedential authority of Baker v. Nelson came up during the oral argument at the Supreme Court in Hollingsworth, the Proposition 8 case, when counsel for the Prop 8 proponents argued that the district court should not have ruled on the merits in that case because of Baker.  At that time, Justice Ruth Bader Ginsburg dismissed Baker’s significance, point out that when Baker was decided the Court had not yet issued its rulings holding that heightened scrutiny applied to sex discrimination claims.  Because the 6th Circuit put such weight on Baker v. Nelson, it is likely to be discussed again during the DeBoer argument, and might also be addressed in the Court’s subsequent opinion.

The 4th, 7th, 9th and 10th Circuits all held that Baker was no longer a binding precedent, noting that since 1972 the Court had expanded its view of the fundamental right to marry in a series of cases building on its historic 1967 decision striking down Virginia’s criminal law banning interracial marriages, Loving v Virginia; that it had struck down an anti-gay state constitutional amendment on an equal protection challenge in Romer v. Evans in 1996; that it had struck down anti-gay sodomy laws in Lawrence v. Texas in 2003; and, of course, that it had struck down as violating both due process and equal protection the federal ban on recognizing same sex marriages in Windsor in 2013. In light of all these developments, even though the Court had never expressly overruled Baker, it would be ludicrous to suggest that same sex marriage does not present a “substantial federal question” after June 26, 2013. Even the Court’s most outspoken opponent of gay rights, Justice Antonin Scalia, might conceded to that point, since his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor both proclaimed that the rationale of the majority opinions in those cases would open up claims for same-sex marriage, rendering the Court’s ipse dixit in Baker irrelevant.  The Windsor majority opinion did not even mention Baker v. Nelson, which the court below, the 2nd Circuit, dismissed as not relevant to the questions presented in that case.

The courts that have rejected marriage equality claims relying on Baker have stressed that the Court’s summary dismissal in Baker followed by several years its ruling in Loving v. Virginia.  They argue that this makes clear that the fundamental right to marry, as identified in Loving, could not extend to same sex couples; if it did, they argued, the Court would not have dismissed the Baker appeal.  This argument treats Loving as entirely a race discrimination case, but it conveniently ignores the way Loving was expanded by the Supreme Court in subsequent cases, including Turner and Zablocki, which spoke broadly of the fundamental right to marry as transcending the narrow issue of procreation and didn’t turn on racial issues.

In the marriage equality decisions during 2014 from the 4th and 10th Circuits, Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, sub nom Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6, 2014), the courts held that same-sex couples were being deprived of a fundamental right to marry, and that the states had failed to show that they had compelling justifications for abridging that right.  Hedging their bets, these courts also found that the state’s justifications failed to meet rationality review.  A Supreme Court ruling on this ground would not disturb the Court’s continuing reluctance to find explicitly that sexual orientation is a suspect classification, which would raise a presumption of unconstitutionality every time the government adopts a policy that discriminates on that basis and would put the burden on the government to prove an important, even compelling, policy justification to defend its position.  On the other hand, the 7th and 9th Circuits, in Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied sub nom. Bogan v. Baskin and Walker v. Wolf, 135 S.Ct. 316 (Oct. 06, 2014), and Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied,  2015 WL 128117 (Jan. 9, 2015), premised their decisions on equal protection, with the 9th Circuit, in line with its earlier ruling in a jury selection case, holding that sexual orientation discrimination calls for heightened scrutiny and the 7th Circuit following a similar path without articulating the “suspect classification” terminology.  A Supreme Court ruling based on equal protection that overtly applies heightened scrutiny would have a more far-reaching effect in other gay rights cases outside the marriage issue, which is why it seems more likely that the Court would take the due process route, or, as some argue that Justice Kennedy did in Windsor, attribute the same-sex marriage bans to unconstitutional animus and avoid any overt expression as to the other doctrinal issues.  The Court might be leery about reaffirming too broad a fundamental marriage right, for fear that it would put in play constitutional challenges to laws penalizing polygamy, adultery, and incest (as Scalia argued in his Lawrence dissent).  A ruling premised on finding animus as the prima motivator of same sex marriage bans would end the bans without necessarily altering Supreme Court doctrine applicable to any other gay-related or marriage-related issues that might come before the Court.

Most predictions about how the Court may rule presume that the Windsor majority will hold together and that the Windsor dissenters would dissent.  That would make Justice Kennedy the senior member of the majority who would likely assign the opinion to himself, as he did in Windsor.  (Now-retired Justice John Paul Stevens was the senior justice in the majority in Romer and Lawrence and assigned those opinions to Justice Kennedy, who returned the favor in Lawrence by prominently citing and quoting from Stevens’ dissenting opinion in Bowers v. Hardwick.)  Nobody is predicting that Justices Scalia, Thomas or Samuel Alito would abandon their dissenting votes in Windsor to join a marriage-equality majority, so they are unlikely to have any role in determining the Court’s doctrinal path in the case.  Indeed, Judge Sutton’s opinion for the 6th Circuit defiantly embraced the “originalism” approach advocated by Justices Scalia and Thomas for construing the 14th Amendment (an approach never endorsed by a majority of the Court), under which a claim for marriage equality would founder on the argument that the mid-19th century framers of that amendment could not possibly have intended or understood that its provisions would require states to license marriages by same sex couples.  Justice Kennedy, whose opinions in Lawrence and Windsor clearly disavowed an originalist approach to interpreting the scope of liberty protected by the due process clause, would never agree to these arguments.   However, there has been speculation that Chief Justice Roberts might join the majority, which would give him control of the opinion assignment.  In that case, one might expect a narrowly-focused opinion intended to keep together a doctrinally diverse majority of the Court, and intended to have as little effect on other cases as possible.

In the wake of the cert. grant, several media commentators tried to find particular significance in the Court’s wording of the questions and division of the argument, suggesting that the majority of the Court might have a plan to rule for the Petitioners on marriage recognition while ruling for the Respondents on the question whether states must license same sex marriages.  Such an approach was floated by 5th Circuit Judge James Graves in his questioning on January 9 during oral arguments of the appeals from Texas, Mississippi and Louisiana, but strongly refuted by counsel for the plaintiffs in those cases.  One suspects that the 5th Circuit may hold off on issuing a ruling now that the Supreme Court has granted cert. to decide these questions, in which case we may never find out whether Judge Graves is committed to that course.  However, in light of the procedural and substantive posture of the cert. petitions coming up from four different states, the Court’s organization of the questions and division of the argument appears more a logical response to a complicated appellate situation than a strategic move to produce a “split the baby” decision.

6th Circuit Opens Up Circuit Split on Marriage Equality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Federal Court in Puerto Rico Dismisses Marriage Equality Case

Posted on: October 22nd, 2014 by Art Leonard No Comments

U.S. District Judge Juan M. Perez-Gimenez ruled on October 21, 2014, that he was bound by a precedential decision of the U.S. Court of Appeals for the 1st Circuit to dismiss a lawsuit brought by Lambda Legal on behalf of Puerto Rican same-sex couples seeking either to marry or to have their out-of-state marriages recognized by the Commonwealth of Puerto Rico.  The judge based his ruling in Conde-Vidal v. Garcia-Padilla on the 1st Circuit’s 2012 decision striking down Section 3 of the federal Defense of Marriage Act, in which that court said that a 1971 decision by the Supreme Court to reject a constitutional challenge to Minnesota’s same-sex marriage ban was still binding law.  Judge Perez-Gimenez also asserted that the Supreme Court’s 2013 decision, U.S. v. Windsor, striking down that provision of DOMA in an appeal from the 2nd Circuit, did not affect this conclusion.

Lambda Legal promptly announced that it would appeal this “aberrant” ruling to the 1st Circuit Court of Appeals.

In light of the basis for his ruling, it was not necessary for the judge independently to evaluate the plaintiffs’ constitutional claims, but his opinion made clear that he believed that Puerto Rico has a right to determine who can marry and whose marriages are to be recognized as a matter of its own self-government.

When the Minnesota Supreme Court rejected a federal constitutional challenge to that state’s marriage ban in 1971, the law governing Supreme Court jurisdiction required the U.S. Supreme Court to consider and decide on the merits any appeal from such a ruling. The Supreme Court’s practice at that time was to dispose of those cases that the Justices considered to be sure losers by issuing a one-line decision, dismissing the appeal as not presenting a “substantial federal question.”  Such a ruling is considered to be a decision on the merits of the questions presented by the appeal, and is binding on lower federal courts unless it is either overruled by the Supreme Court or later Supreme Court decisions clearly render it no longer viable as a precedent.  The Court issued such a one-sentence ruling in Baker v. Nelson in 1972.  During the recent flurry of marriage equality cases, defenders of the existing marriage bans have usually cited Baker v. Nelson as blocking lower federal courts from deciding marriage equality cases.

Prior to U.S. v. Windsor, lower courts had frequently agreed with this defense, but after Windsor federal courts have almost uniformly rejected it, frequently by citing and quoting from Justice Antonin Scalia’s dissenting opinions in Windsor and the earlier case of Lawrence v. Texas (2003), in which the Court struck down the Texas homosexual sodomy law.  Scalia’s dissents asserted that the reasoning of the Court’s decisions in these cases would support claims for a right to same-sex marriage under the 14th Amendment.  In his Windsor dissent, he paraphrased a portion of the majority opinion to show how a lower court could write such a decision channeling the reasoning of the majority decision.

The four circuit court of appeals marriage equality decisions that were denied review by the Supreme Court on October 6 had all ruled that Baker v. Nelson was no longer a controlling precedent.  Although a Supreme Court denial of review is not a ruling on the merits of the lower court decision, these denials have been widely interpreted as tacit agreement with the lower courts’ dismissal of the Baker v. Nelson precedent.  If a majority of the Justices thought that Baker v. Nelson was still a binding precedent on lower courts, they could instead have summarily reversed the lower court rulings, citing Baker, or at least so one would have thought.  But clearly there was not a majority on the Supreme Court to take such an action, which would require votes from 5 of the Justices.  Most observers assume that the Court’s four conservatives did not vote to grant review for fear that a majority of the Court would affirm the marriage equality decisions, thus creating a national precedent, while the remaining members of the Court, including Justice Kennedy, saw no reason to take up the issue when there was not a current split between circuit courts on the issue.  This view was reaffirmed when the Court subsequently refused to stay new marriage equality rulings from the 9th Circuit and the state of Alaska.

But Judge Perez-Gimenez, as a district court judge in the 1st Circuit, is bound by 1st Circuit precedent.  Had he agreed with the plaintiffs’ arguments on the merits, he could easily have ruled that the 1st Circuit’s 2012 statement about Baker v. Nelson was no longer binding on him because of the subsequent decision in Windsor.  However, he lined up with two dissenting circuit court judges (from the 4th and 10th circuits) who have argued that Windsor did not necessarily overrule Baker.  For one thing, the majority opinion in Windsor did not discuss or explicitly overrule Baker.  For another, as the 1st Circuit observed in its DOMA case, the question whether DOMA’s federal definition of marriage violated the 5th Amendment Due Process Clause was different from the question whether state bans on same-sex marriage violate the 14th Amendment Due Process and Equal Protection Clauses, implicating questions of federalism that are not present in the challenges to state laws.

The Puerto Rico plaintiffs had argued that the 1st Circuit’s comments about Baker v. Nelson were merely “dicta,” that is commentary unnecessary to the decision of the case, and thus not binding on lower courts in the circuit.  Judge Perez-Gimenez rejected this contention, arguing that discussing was necessary to the 1st Circuit’s choice of a doctrinal basis to strike down the DOMA provision.  Even if the 1st Circuit’s comments were not binding as precedent, he contended that they would be a persuasive precedent that a district court would be wise to follow.

Dramatically illustrating the strong tide against which he was swimming in this regard, Judge Perez-Gimenez devoted almost an entire page of his opinion to citing all of the circuit and district court rulings going the other way, stating that “notwithstanding” this long list of cases, “this Court will apply Baker v. Nelson, as the Supreme Court has instructed it to do” in cases where the Supreme Court has stated that lower courts should follow Supreme Court precedents, no matter how old, which have not been overruled or disavowed by the Supreme Court.  He argued that none of the Supreme Court decisions usually cited by litigants and courts to the contrary actually overruled Baker.

Despite this basis for his ruling, Judge Perez-Gimenez decided to add some “dicta” of his own making clear that he would reject the plaintiffs’ claims on the merits were it open to him to do so.  “Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law,” he wrote.  Traditional marriage is ‘exclusively an opposite-sex institution . . . inextricably linked to procreation and biological kinship,'” he quoted from Justice Samuel Alito’s dissenting opinion in U.S. v. Windsor.  “Traditional marriage is the fundamental unit of the political order.  And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage,” wrote Judge Perez-Gimenez.  Thus, the judge overlooked the thousands of children being raised by same-sex couples, whose fate had proven central to the 7th and 9th Circuit’s recent pro-marriage equality decisions.

Commenting on the recent spate of pro-marriage equality decisions, he wrote, “In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage.  And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity?  Is ‘minimal marriage’, where ‘individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties’ the blueprint for their design?  It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on ‘the constitutional liberty to select the partner of one’s choice.'”

The judge’s response to these concerns is to assert that they present policy questions to be decided in the political process, not by courts.  “For now,” he wrote, “one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.”  He rooted this principle in a recent Supreme Court decision that rejected a constitutional challenge to a popularly enacted state constitutional amendment banning affirmative action in Michigan, in which Justice Anthony Kennedy, a champion in the leading Supreme Court gay rights cases, wrote: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Lambda Legal’s appeal will present the 1st Circuit with an unanticipated opportunity to weigh in on the same-sex marriage debate.  All of the states in that circuit – Maine, New Hampshire, Massachusetts and Rhode Island – are marriage equality jurisdictions, beginning with a Massachusetts Supreme Judicial Court decision in 2003 and continuing with legislative enactment of marriage equality laws by the other three states.  Although a 1st Circuit panel saidthat it viewed Baker v. Nelson as a binding precedent in 2012, it is possible that the court would reconsider that view in light of Windsor and the stream of rulings by other courts of appeals that have relied on Windsor in their determination that Baker is no longer binding.  If the 1st Circuit decides to stick with its previously-expressed view, this case could provide the vehicle to get the marriage equality issue up to the Supreme Court.  Of course, it is possible that a ruling from the 5th, 6th, 8th or 11th Circuit will get the question there sooner, if any of those circuits rule adversely on a marriage equality claim.  Appeals are now pending in all of those circuits except the 8th, where two states already have marriage equality and litigation is pending in the other five states.

Judge Perez-Jimenez was appointed to the district court by President Jimmy Carter in 1979.  Although Puerto Rico is not a state, its federal district court has the same status as district courts in the fifty states and the District of Columbia, and it is formally part of the 1st Circuit for purposes of appellate review.