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Supreme Court Denies Review of Marriage Equality Rulings from Three Circuits

Posted on: October 6th, 2014 by Art Leonard 1 Comment

Today (October 6) the Supreme Court announced that it had denied petitions for certiorari in Bogan v. Baskin (Indiana), Walker v. Wolf (Wisconsin), Herbert v. Kitchen (Utah), McQuigg v. Bostic (Virginia), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), and Smith v. Bishop (Oklahoma).  In these cases the U.S. Courts of Appeals for the 4th, 7th and 10th Circuits had ruled in recent months that same-sex couples have a right to marry and to have their out-of-state marriages recognized under the 14th Amendment.  In each case, either the Supreme Court or the court of appeals had granted a stay of the ruling pending the states’ appeal to the Supreme Court.  Now that the Supreme Court has refused to review these cases, the stays will be lifted, and five more states will quickly be added to the existing marriage equality list, which already includes 19 states and the District of Columbia.

The Supreme Court’s action will also have a quick echo effect, as lawsuits are pending before federal trial judges in another six states that are within the jurisdiction of the 4th and 10th circuits: West Virginia, North Carolina, South Carolina, Wyoming, Colorado, and Kansas.  Judges in those cases are likely to grant summary judgment motions by the plaintiffs quickly, since their rulings are controlled by the court of appeals decisions.  Thus, in the coming weeks marriage equality will spread to these states as well, reaching a national total of 30 states with more than 60% of the nation’s population.  This would  bring the issue close to the tipping point of 34 states that had allowed interracial marriages when the Supreme Court struck down Virginia’s ban on such marriages in 1967.  With today’s announcement, marriage equality has swept the 7th Circuit, as Illinois adopted marriage equality legislatively last year and Wisconsin and Indiana are the only other states in the circuit.

Still to be heard from are the 6th Circuit, where the court of appeals heard oral arguments on cases from all four states in the circuit (Michigan, Ohio, Kentucky and Tennessee) early in August, and the 9th Circuit, where the court of appeals heard arguments from Idaho, Nevada and Hawaii early in September.  The other states in the 9th Circuit, where marriage equality cases are pending in federal trial courts, include Alaska, Montana, and Arizona.  Observers of the 6th Circuit oral argument had predicted that this might be the first circuit to rule against marriage equality, but the Supreme Court’s action today might influence how those judges are thinking about the issue.  There was no dissent from the denial of certiorari, which means none of the justices was willing to go on record as opposing lifting the stays and allowing marriage equality to go into effect in five more states.  This may send some sort of signal to the lower courts.  In the 9th Circuit, it is widely expected that the court — which previously struck down California Proposition 8 — would rule for marriage equality.

Least far along are the 5th, 8th and 11th Circuits.  In the 5th, the court has yet to schedule arguments on appeals from district court rulings in Texas and Louisiana, although it recently granted a motion to expedite briefing and hear those cases argued on the same day, probably in November.  The other state in that circuit is Mississippi, where litigation is pending in the trial court.  In the 8th Circuit, Minnesota and Iowa already have marriage equality, and an appeal is pending before the Arkansas Supreme Court of a marriage equality ruling by a state trial judge.  Cases are pending in trial courts in other states in that circuit: North and South Dakota, Nebraska and Missouri, where a state court judge ruled on October 3 that the state must recognize same-sex marriages contracted in other states and state officials have not announced whether they will appeal the ruling.  In the 11th Circuit, the circuit court has yet to schedule an argument on Florida’s appeal from a trial court pro-marriage equality ruling, and cases are pending in federal trial courts in Georgia and Alabama.  Not to be forgotten are cases pending in Puerto Rico and the Virgin Islands, which are in the 1st and 3rd Circuits, respectively.  All of the states in those circuits now have marriage equality, although the circuit courts have not ruled on the question.

A decision by the Supreme Court to deny a petition for certiorari is NOT a decision on the merits of the case.  That the Court decided to allow marriage equality to go into effect in five states (and, by extension, 11 states) without a Supreme Court ruling on the merits seems prudent, if not widely anticipated.   Justice Ruth Bader Ginsburg, a likely marriage equality supporter who has already officiated at several same-sex marriages and was part of the majority in U.S. v. Windsor, observed in a recent talk at the University of Minnesota Law School that she saw no urgency for the Supreme Court to get involved in this issue so long as there was no disagreement among the circuit courts of appeals.  There was, of course, human urgency, if not legal urgency, because the rulings affecting five states had been stayed, but that urgency is immediately dissipated by lifting the stays and allowing those decisions to go into effect.  The prudence of the Court’s decision to abstain inheres in the trend of public opinion.  Support for same-sex marriage increases as the number of states allowing such marriages grows, so the Court’s abstention will allow that trend to continue, making a later decision on the merits even less controversial than might have been the case had the Court been deciding when “only” 19 states allow same-sex marriage.

Indeed, some have speculated that abstention by the Supreme Court may make it possible to achieve marriage equality without a Supreme Court decision.  Some more states may see the handwriting on the wall, as did Hawaii and Illinois last year, and decide to amend their marriage laws to allow same-sex marriages.  Even though the denial of review is not a merits decision, lower federal courts may be influenced by it in deciding the remaining cases.  After all, it just takes four votes to grant certiorari.  If the four most conservative Republicans — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito – presumably opposed to marriage equality based on their dissenting opinions in U.S. v. Windsor (last year’s DOMA case), thought they had a chance of picking up the vote of Justice Anthony Kennedy, author of the Court’s Windsor decision, they would likely have voted to grant review in one or more of these cases.  The four Democratic appointees — Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — presumably marriage equality supporters based on their Windsor votes (and Justice Kagan has also officiated at a same-sex marriage) — may agree, as indicated by Justice Ginsburg, that there is no need to vote for review unless and until a circuit split develops.  No need tempting fate, given Justice Kennedy’s public silence on the matter.

The justices maintain absolute secrecy about what is said in their private conferences, so we may never learn what Justice Kennedy may or may not have said in last week’s conference to persuade his four Republican colleagues and his four Democratic colleagues to refrain from voting to grant review, but it seems a good bet that he gave no hope to the Republicans that they were likely to get his vote for a decision reversing these court of appeals rulings.  This gives grounds for optimism that if the issue does get to the Supreme Court in its current configuration, it will likely be decided in favor of marriage equality.  Time might change that calculus if a vacancy develops on the Court, but that’s another story. . .



7th Circuit Panel Roughs Up State Attorneys in Marriage Equality Arguments

Posted on: August 26th, 2014 by Art Leonard 1 Comment

A panel of three judges of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, gave a very rough time to attorneys from the states of Indiana and Wisconsin on August 26 during oral arguments about marriage equality appeals from those states.  Three district court rulings from Indiana and one from Wisconsin issued earlier in 2014 had found unconstitutional those states’ refusal to allow same-sex couples to marry or to recognize their marriages contracted in other jurisdictions, and the states had appealed.  Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson probably anticipated tough questioning from Democratic appointees Ann Claire Williams and David Hamilton, but one suspects they were not anticipating the kind of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by President Ronald Reagan back in the 1980s.

Judge Posner, a father of the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, but anyone who has been following the trend of marriage equality decisions over the past year might have predicted this result in light of Posner’s record of relentlessly pursuing facts and logic in his decisions.  Posner pressed both attorneys for some reason why neither state would allow or recognize same-sex marriages.  Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents, about 3,000 of whom are in Indiana, he pressed Fisher for a reason why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples, and Fisher could give him no real answer.

Wouldn’t it help those children if their parents could marry, asked Posner?   What’s better for the welfare of these children — that their parents be allowed to marry or prevented from marrying?  Posner’s insistent questions followed up on Supreme Court Justice Anthony Kennedy’s comment in his opinion for the Court in U.S. v. Windsor about the way denial of marriage to same-sex couples humiliates their children, who are being told by the state that their families are second class and not worthy of marriage.

Fisher insisted, as virtually the sole justification for Indiana’s marriage ban, on a state interest in making marriage available to different-sex couples so that their children would be tied to their biological parents in stable families.  But, having conceded that the state’s interest extended to the families in which children are raised, he could not satisfactorily answer questions from all three judges about how excluding same-sex couples from marriage advanced that interest.  If you let gay people adopt, asked Posner, why not let their children have the same benefits?

Fisher’s response – that same-sex couples can only get children intentionally and don’t need to be “nudged” into marrying – seem puny.  Posner also pointed out the large number of children in foster care who needed adoptive parents and asked whether letting same-sex couples marry would lead to more adoptions.  Fisher disclaimed knowledge about such a result, but Posner, the law-and-economics expert, suggested that it is less expensive for married couples to adopt than for unmarried couples to adopt precisely because of all the benefits that accompany marriage.

Judge Hamilton, seizing upon an argument in Indiana’s brief claiming that the state’s marriage statute did not discriminate based on sexual orientation, seemed to throw Fisher into a panic by suggesting that the state was conceding that its law classified based on sex and was thus subject to heightened scrutiny under the Equal Protection Clause.  Virtually all judges seem to agree that if heightened scrutiny is used, bans on same-sex marriage are doomed to fail.

Samuelson did not fare much better arguing for Wisconsin.  He contended that the due process clause was a source of negative rights but not positive rights, and asked the court to consider whether Wisconsin is required to have a marriage law at all.  He suggested that if Wisconsin repealed its marriage law and substituted domestic partnerships, nobody would have cause for complaint because, in his view, the Due Process Clause does not contain an affirmative right to marry.  He argued that all the prior Supreme Court marriage cases were concerned with negative rights, not affirmative rights, in that the Court was striking down instances in which the state had interfered with existing marriage rights.  The judges did not seem impressed by this argument and gave it short shrift.

During Samuelson’s argument on behalf of Wisconsin, Judge Posner really cut to the chase.  As Samuelson blundered on about tradition and “Burkean values” Posner finally asked, “Isn’t this based on hate?” and referred to the history of “savage discrimination” against gay people, including discrimination by government.  Samuelson countered by pointing out that Wisconsin was the first state to pass a statute banning discrimination because of sexual orientation in housing, employment and public accommodations.  Posner responded, “Why draw the line there?”  Why not cease discriminating in marriage?  To Samuelson’s response that this was a matter of “legislative policy,” Posner said, “Give me a rational basis for that legislative policy,” but Samuelson could not.

What did distinguish the 7th Circuit argument from the approaches of the 10th and 4th Circuit courts of appeals, which ruled in marriage equality cases over the summer, was that the judges seemed more inclined from their questioning and comments to treat this as an Equal Protection case rather than a case about a fundamental right to marry.  They pressed the attorneys from plaintiffs — Lambda Legal’s Camilla Taylor, the Indiana ACLU’s Kenneth Falk, and the National ACLU LGBT Rights Project’s James Esseks – for some limiting principle by which to described a constitutional right to marry.  Would that endanger laws forbidding incest, first-cousin marriages, polygamy?  Esseks came back with the strongest answer, pointing to Justice Kennedy’s description of the liberty encompassed by the Due Process Clause in his opinion for the Court in Lawrence v. Texas, the 2003 decision striking down that state’s homosexual sodomy ban.  Kennedy listed the right to select a marital partner as one of the fundamental rights within the scope of constitutionally-protected liberty, and commented, to the outspoken chagrin of Justice Scalia, that homosexuals had the same liberty interest.  Scalia’s dissent asserted that once the Court had eliminated tradition and moral disapproval as grounds for adverse treatment of gay people, there seemed no basis to deny gay people the right to marry.  His comment has been noted by many of the federal trial judges who have struck down marriage bans in recent months.

Most of the questioning for the plaintiffs’ attorneys focused on how to describe the liberty interest and where to find limiting principles for it.  Hamilton particularly suggested that equal protection provided the stronger argument for plaintiffs, since the discriminatory purpose and effect of the marriage bans was clear.  Esseks made a strong pitch for the court to use heightened scrutiny if it decided the case using an equal protection theory, but the judges seemed unreceptive.  Judge Williams suggested that the concept of “heightened scrutiny” was not helpful.  To her, the issue was whether the challenged laws caused harm, and whether there was some balancing benefit to the state that justified the harm.  Her questioning suggested that she understood the harms very well, but that attorneys for the states were unable to name any concrete benefits associated with these bans.

During Fisher’s brief rebuttal argument, Judge Posner came back to his issue of children of adoptive parents, pushing Fisher again to give a reason for denying them benefits, and asking how the marriage ban could possibly advance the state’s interests.  Do you really believe that you get less extramarital sex by pushing heterosexuals to marry, he asked.  You let all these sterile people marry, he commented.  Are they supposed to be role models for channeling procreation?  He characterized this argument as ridiculous.

Posner asked Fisher whether he read the amicus brief filed by the Family Equality Council, which was devoted to relating the stories of harms incurred by children whose parents were not allowed to marry.  Fisher claimed to have read it but not remembered it.  Posner referred to the “harrowing information” about problems created for children raised by couples forbidden to marry, the misfortunes they suffered, and asked incredulously whether Fisher was not moved by that.  He also asked whether Fisher had any empirical basis for anything he had said, in a void dripping with sarcasm.

It was hard to imagine that either of the appellant states are going to win even one vote from this panel, if the judges vote along the lines suggested by their questions and comments during the oral argument.


Indiana Federal Court Grants Preliminary Injunction for One Plaintiff Couple in Marriage Recognition Case

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

U.S. District Judge Richard L. Young (S.D. Indiana) issued a preliminary injunction on May 8 in Baskin v. Bogan, requiring Indiana officials to recognize the same-sex marriage of Nikole Quasney and Amy Sandler. Unlike the temporary restraining order that Judge Young had previously issued in this case that was to expire on May 8, the preliminary injunction will remain in effect until the court decides the complete case on the merits, unless it is stayed or reversed on appeal. The Indiana Attorney General’s office responded to the court’s order by announcing that it would appeal to the 7th Circuit.

Quasney and Sandler have been partners for more than thirteen years and are raising two very young children together. They entered into an Illinois civil union in 2011 and a legal marriage in Massachusetts in 2013. Quasney has been battling ovarian cancer since her May 2009 diagnosis, with a projected five year survival rate. Although she has been in remission off and on as a result of chemotherapy, her cancer is no longer treatable since the most recent recurrence in April.

Quasney and Sandler joined with several other same-sex couples in suing the state of Indiana, whose laws prohibit same-sex marriages. Some of the plaintiff couples are seeking the right to marry in Indiana, while Quasney and Sandler are seeking recognition of their marriage by the state. Although a motion for preliminary injunction was filed on behalf of all the plaintiffs, at this point the only motion before the court for immediate decision was that of Quasney and Sandler, who want their marriage to be recognized before Quasney’s likely death in the near future.

Judge Young found that the criteria for such preliminary relief were satisfied in this case. In states within the 7th federal circuit, the analysis begins with a determination whether the plaintiff has shown some likelihood of success on the merits, would suffer irreparable harm without the injunction, and that traditional legal remedies (damages, for example) would be inadequate to repair the harm. If these requirements are met, the court has to balance the interests of the plaintiff and the state to determine whether the plaintiff’s need for the relief outweighs the state’s interest in preserving the status quo until the court can decide the case on the merits in a dispositive ruling.

Noting the long string of favorable federal district court decisions around the country since last June’s Supreme Court ruling striking down Section 3 of the Defense of Marriage Act in U.S. v. Windsor, Judge Young found it likely that plaintiffs will prevail on the merits of their claim that Indiana’s ban on recognizing same-sex marriages contracted in other states is unconstitutional. He also found that the Supreme Court’s decision to stay the Utah marriage decision and the subsequent action by federal district courts to stay their marriage equality rulings while the cases are on appeal did not necessarily mean that he could not issue a preliminary injunction to take effect immediately. This ruling would provide relief to just one couple, he pointed out, in a state population of 6.5 million, so did not present the same issues as a broad order requiring the state to issue marriage licenses to any same-sex couples who applied or to recognize large numbers of same-sex marriages contracted elsewhere. The judge concluded that the state’s argument that issuing this injunction would cause confusion about the continued application of its marriage laws lacked merit in this situation.

As to the issue of irreparable harm, Judge Young found that Quasney has been traveling across state lines regularly to get treatment in a hospital where her marriage is recognized in a neighboring state, presenting a concrete harm. He also found that the dignitary harm Quasney and Sandler suffer from the non-recognition of their marriage would suffice, for constitutional purposes, to be counted as an irreparable injury.

In balancing the harms to the plaintiffs and the state, Young wrote, “The State does not have a valid interest in upholding and applying a law that violates these constitutional guarantees [of equal protection and due process]. Although the court recognizes the State’s concern that injunctions of this sort will cause confusion with the administration of Indiana’s marriage laws and to the public in general, that concern does not apply here. The court is faced with one injunction affecting one couple in a State with a population of over 6.5 million people. This will not disrupt the public understanding of Indiana’s marriage laws.”

The court ordered that if Quasney passes away in Indiana while this injunction is in effect, Dr. William C. VanNess II, the state’s Commissioner of the Indiana State Department of Health, “and all those acting in concert,” shall “issue a death certificate that records her marital status as ‘married’ and lists Plaintiff Amy Sandler as the ‘surviving spouse.'”

Another State Heard From on Marriage Equality – Indiana

Posted on: April 20th, 2014 by Art Leonard 1 Comment

Marriage Equality advocates in Indiana were very strategic in their litigation, holding off filing cases until after the legislature had adjourned, after kicking the question of a constitutional amendment against same-sex marriage down the road another two years by passing a version of the proposed amendment that differed from that approved in the last session. A bunch of new cases were filed earlier this year, and they have been consolidated before U.S. District Judge Richard L. Young in Indianapolis (S.D. Ind.), under the collective title of Baskin v. Bogan.

Things were proceeding as they do in these cases when suddenly an urgent need for a quick ruling arose. Niki Quasney and Amy Sandler, one of the plaintiff couples, formed an Illinois civil union in 2011 and married in Massachusetts in 2013. They have been together many years and are raising two young children together. Niki has been battling ovarian cancer since May 2009, going back and forth between active cancer and remission after treatments. On April 9, the cancer recurred from the most recent remission, and the prognosis was questionable. Plaintiffs’ counsel filed an emergency motion for a temporary restraining order, seeking to get recognition for the Quasney-Sandler marriage specifically to ensure that if Niki dies before the court can rule on the merits in this case, the state will be required to recognize Niki and Amy as married on Niki’s death certificate.

Judge Young proved receptive to this request, ruling from the bench at the end of a hearing on April 10 to issue the TRO, to last until May 8, by which time the court will hold a hearing on a motion for preliminary injunction. On April 18, Judge Young issued a written opinion explaining his ruling, 2014 U.S. Dist. LEXIS 54036.

Young quickly rejected the state’s argument that plaintiffs could not seek a TRO because they had not yet suffered any Article III harm that could be remedied by a restraining order, pointing out thatdig nitary harm could be sufficient where a constitutional right was at stake. Furthermore, there were already tangible harms experienced by the plaintiffs. “The Plaintiffs here have shown cognizable injuries that a TRO can remedy,” wrote Judge Young, “because Niki drives across state lines to receive treatment from a hospital that will recognize her marriage, Niki and Amy have been denied a family fitness membership, and they suffer anxiety, sadness, and stress about the non-recognition of their marriage and what that means if and when Niki succumbs to her disease.”

Referring to the “dignity” of marriage that was at the heart of the Supreme Court’s decision last year in U.S. v. Windsor, Young wrote that “the deprivation of the dignity of a state-sanctioned marriage is a cognizable injury under Article III.”

As to the criteria for a temporary restraining order, Young was governed by 7th Circuit precedents, requiring him to find that the plaintiffs’ chance of success on the merits is “more than negligible.” He found this easily satisfied by reference to “the wave of recent cases finding that similar state statutes and state constitutional amendments violate the Equal Protection Clause and the Due Process Clause.” He found “particularly persuasive” two recent rulings from Ohio and Illinois involving couples where one member was suffering a fatal illness.

Turning to the state’s arguments, he rejected Indiana’s contention that all of these courts have misconstrued Windsor by imposing a federal constitutional analysis on the policy question of who can marry. Noting the Supreme Court’s citation of Loving v. Virginia, the 1967 Supreme Court decision striking down Virginia’s ban on interracial marriages, he wrote, “The Equal Protection Clause requires states to treat people equally under the law; if the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose.”

As to purpose, he rejected out of hand Indiana’s argument that the state’s concern in “ameliorating the consequences of unintended children” would serve to justify excluding same-sex couples from marrying. “This philosophy of marriage,” he wrote, “does not distinguish Indiana from the wave of recent cases finding similar statutes to be unconstitutional. Furthermore, he wrote, “The court finds that this cannot be the entire rationale underlying the traditional marriage. Additionally, this philosophy is problematic in that the state of Indiana generally recognizes marriages of individuals who cannot procreate. For example, Indiana recognizes the marriages of opposite-sex couples that occurred in Florida that are well past their procreative years. This philosophy does not apply to them, so under the state’s philosophy, their marriage should not be recognized here. Further, before recognizing an out-of-state marriage on a death certificate, the state of Indiana does not inquire whether the couple had the ability to procreate unintentionally.”

Foreshadowing his likely ruling on the merits when the court decides on summary judgment down the line, Young wrote, “the court finds there will likely be insufficient evidence of a legitimate state interest to justify the singling out of same-sex marriage couples for non-recognition. The court thus finds that Plaintiffs have at least some likelihood of sucess on the merits because the ‘principal effect’ of Indiana’s statute ‘is to identify a subset of state-sanctioned marriages and make them unequal.'” The quoted words are from the Supreme Court’s opinion in Windsor.

Young also found that the restraining order was necessary because after-the-fact damages or alternative contractual arrangements would be insufficient to provide an adequate remedy for the harms the plaintiffs would suffer if their marriage is not recognized in the current circumstances. Indeed, they would suffer irreparable harm if the TRO is denied and Niki dies before the court can rule on the merits, and, wrote Young, “as this court and others have previously held, the state experiences no harm when it is prevented from enforcing an unconstitutional statue.” Thus, the court was willing to grant a temporary restraining order that would extend until the next hearing in this case.

Of course, this is narrow relief, focused only on the Quasney-Sandler marriage. “Should Ms. Quasney pass away in Indiana,” wrote Young, “the court orders Willian C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acting in concert, to issue a death certificate that records her marital status as ‘married’ and lists Plaintiff Amy Sandler as the ‘surviving spouse’.”

Despite the narrowness of this relief, limited to one couple, Young’s opinion communicates the likelihood that he will be ruling for the plaintiffs on the merits before very long, making Indiana the first state within the 7th Circuit to generate a ruling on marriage equality likely to go to the circuit court of appeals.

Plaintiffs in this case are represented by Barbara J. Baird, an Indianapolis attorney, pro bono attorneys from the Chicago office of Kirkland & Ellis, and attorneys from the Chicago and Dallas offices of Lambda Legal. The defendants include several county clerks, the state Health Commissioner, and the state Attorney General, all sued in their official capacities.

Judge Young was appointed to the court by President Bill Clinton, and is the Chief Judge of the Southern District of Indiana.