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Posts Tagged ‘Bishop v. United States’

Marriage Equality Case Developments Come Hot and Heavy

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

As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.

On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.

First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.

News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.

Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.

Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.

There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.

The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.

At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!

There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.

The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.

Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.

So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.

Oklahoma Federal District Court Declares Anti-Gay Marriage Amendment Unconstitutional

Posted on: January 15th, 2014 by Art Leonard No Comments

Yet another federal district judge has declared a state constitutional amendment that bans same-sex marriages an unconstitutional infringement of rights under the 14th Amendment of the U.S. Constitution. On January 14, Senior U.S. District Judge Terence C. Kern, who has been dealing with the case of Bishop v. United States since 2004, held that the constitutional amendment adopted by an overwhelming vote of Oklahoma citizens that year, fails to meeting the deferential “rationality review” test under the Equal Protection Clause.

Although Judge Kern declared the part of the Oklahoma Marriage Amendment that bans same-sex marriages unconstitutional, he stayed his ruling pending an expected appeal by the state. Oklahoma is within the 10th federal appellate circuit, the same one that includes Utah, and thus this appeal will go to the same court that is now considering Utah’s appeal of a similar marriage quality ruling. The Utah case is on an expedited schedule, with initial briefing due in a few weeks and reply briefs due by the end of February. It seems unlikely that Oklahoma would fall in with such a fast-track schedule unless ordered to do so by the 10th Circuit, but handling both cases in one appellate proceeding would make eminent sense, so perhaps if Oklahoma officials decide to move quickly, this case could be consolidated with the pending appeal in Kitchen v. Herbert, making a subsequent trip to the U.S. Supreme Court that much more likely.

The strange name for this case, Bishop v. United States, relates to the unusual way it got started. After the Oklahoma Marriage Amendment was passed, two lesbian couples — Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips — filed a Complaint against both the federal and state governments, seeking a declaration that Sections 2 and 3 of the federal Defense of Marriage Act (DOMA) and Parts A and B of the Oklahoma Marriage Amendment, were unconstitutional. Section 2 of DOMA purports to allow states to refuse to give “full faith and credit” to same-sex marriages contracted in other states, while Section 3 provided that the federal government would recognize only different-sex marriages. Part A of the Oklahoma amendment bans same-sex marriage in that state, and Part B refuses recognition to same-sex marriages contracted in other states.

The case took a few procedural twists and turns, including a trip up to the 10th Circuit Court of Appeals, leading to some changes in the identity of defendants. Ultimately, the summary judgment motion upon which Judge Kern ruled involves a suit between the two couples and Sally Howe Smith, the Tulsa County Clerk, who denied the Bishop couple a marriage license. The Barton couple, being dissatisfied with the pace of events in Oklahoma, have married in Canada and in California (in 2008). A major part of Judge Kern’s opinion considers the Barton couple’s challenge to DOMA, holding that they lack standing to challenge Section 2, because that provision did not compel Oklahoma to refuse to recognize their marriage, and that their challenge to Section 3 is moot because the U.S. Supreme Court declared it unconstitutional last year in U.S. v. Windsor. Thus, the Barton couple is effectively out of the case.

The Bishop couple, not being married, were only challenging Part A of the Oklahoma marriage amendment, under which Ms. Smith rejected their request for a marriage license. For reasons not explained in Judge Kern’s opinion, they did not challenge the Oklahoma statutes that also ban same-sex marriage, just the constitutional amendment, so that is all Judge Kern rules on, although he notes that much the same constitutional analysis would apply to the question whether the statutes are also unconstitutional.

Judge Kern’s opinion on the Oklahoma amendment goes through three stages.

First, he rejects the argument that the U.S. Supreme Court’s 1972 Baker v. Nelson decision is binding on the court. In that case, the Supreme Court dismissed a challenge to the Minnesota ban on same-sex marriage, which had been upheld by the Minnesota Supreme Court. The U.S. Supreme Court dismissed that appeal as not raising a “substantial federal question” and didn’t even bother to hear oral arguments or issue a written opinion explaining its conclusion. Such “summary affirmances” by the Supreme Court are technically binding on lower courts, unless subsequent developments in the law render them obsolete. In this case, Judge Kern, agreeing with Judge Robert Shelby of the U.S. District Court in Utah, held that subsequent developments had rendered Baker of little precedential value. Most significantly, of course, the Supreme Court’s rulings in Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor have changed the landscape for constitutional analysis of gay rights claims. “It seems clear that what was once deemed an ‘unsubstantial’ question in 1972 would now be deemed ‘substantial’ based on intervening developments in Supreme Court law,” wrote Judge Kern.

Second, the court had to decide what impact the Windsor decision would have. Judge Kern found that Windsor did not decisively tip the balance toward either party. “This Court interprets Windsor as an equal protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples,” he wrote. He found that the Windsor court “did not apply the familiar equal protection framework,” but instead “based its conclusion on the law’s blatant improper purpose and animus.” He continued, “Both parties argue that Windsor supports their position, and both are right.” That is, Windsor supports the state’s argument that as a matter of history and practice, the regulation of marriage is a state function, not a federal function. But it supports the Bishop couple’s position because “much of the majority’s reasoning regarding the ‘purpose and effect’ of DOMA can be readily applied to the purpose and effect of similar or identical state-law marriage definitions.” As had Judge Shelby in Utah, Judge Kern noted Justice Scalia’s dissenting opinion in Windsor, explaining how the majority’s reasoning in that case would support a same-sex marriage claim.

Kern drew two lessons from the Windsor case. Because it is usual for states to define marriage, state marriage definitions “must be approached differently, and with more caution, than the Supreme Court approached DOMA.” But, when courts are reviewing marriage regulations, they “must be wary of whether ‘defending’ traditional marriage is a guise for impermissible discrimination against same-sex couples.”

Finally, in the third part of the analysis, Kern turned to the 14th Amendment claim in this case. He embraced a much narrower doctrinal analysis than did Judge Shelby in the Utah case, Kitchen v. Herbert. Kern decided that this was a case of sexual orientation discrimination, not sex discrimination, and thus was not subject to heightened scrutiny, and he did not accept the alternative argument that this was a fundamental right to marry case under the due process clause. This means there is no presumption against the constitutionality of the Oklahoma amendment, and it will be upheld if the court can think of any rational justification for it. After reviewing the history of the amendment’s adoption, Judge Kern concluded that it was adopted specifically to exclude same-sex couples from marriage because of moral disapproval of homosexuality by the legislators who proposed it (and presumably the voters who approved it), making it an instance of intentional discrimination with an impermissible motivation. The question was whether there was any other justification, once the court had ruled out “promoting morality,” which has not been a legitimate justification for anti-gay policies at least since the Supreme Court’s 1996 decision striking down Colorado Amendment 2, Romer v. Evans.

Not surprisingly, the court confronted the same arguments that have been raised in other states about promoting responsible procreation and providing an ideal setting for child rearing, but Judge Kern found no merit to these arguments in the context of excluding same-sex couples from marriage. He found that “there is no rational link between excluding same-sex couples from marriage and the goals of encouraging ‘responsible procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally procreative’ toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites,” he pointed out. As to the argument that allowing same-sex marriages would somehow undermine the stability of different-sex marriages in Oklahoma, he evidently found the assertion laughable, pointing out that despite its same-sex marriage ban, Oklahoma has one of the highest divorce rates in the country. (Unlike, he might have added, Massachusetts, which has one of the lowest divorce rates and has been allowing same-sex marriages for almost a decade.)

While acknowledging that the state has an interest in incentivizing different-sex couples to get married before having kids, he said that this “asserted justification” for excluding same-sex couples from marriage “makes no sense because a same-sex couple’s inability to ‘naturally procreate’ is not a biological distinction of critical importance, in relation to the articulated goal of avoiding children being born out of wedlock. The reality is that same-sex couples, while not able to ‘naturally procreate,’ can and do have children by other means.” Citing 2010 census data showing that “there were 1,280 same-sex ‘households’ in Oklahoma who reported as having ‘their own children under 18 years of ago residing in their household,'” he pointed out that the articulated goal of reducing the number of children born outside of a marital relationship is hindered rather than promoted by a gay marriage ban.

As to the “ideal environment” for raising children argument, Judge Kern said that the state “has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will ‘promote’ this ‘ideal’ child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the ‘ideal’ child-rearing environment). It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to ‘understand the integrity and closeness of their own family and its concord with other families in their community,'” quoting U.S. v. Windsor.

Having rejected all the arguments in support of the ban, Judge Kern turned back to the Supreme Court precedents. Although that court has not yet ruled on the precise question, he found its rulings on related issues compelling. “Supreme Court law now prohibits states from passing laws that are born of animosity toward homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex and same-sex marriages differently,” he wrote. “There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.”

“Applying deferential rationality review,” he continued, “the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A [of the Oklahoma Marriage Amendment] as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.” He found that the exclusion was “without a legally sufficient justification.”

Thus, he declared Part A unconstitutional. He did not rule on the constitutionality of Part B, which denies recognition to same-sex out of state marriages, because the Bishop couple was not challenging it. Because the Oklahoma marriage statutes bans on same-sex marriages were not challenged, he did not rule on them in this opinion, although as noted above, he observed that the legal analysis of a challenge to those statutes would be essentially the same. However, observing that the Supreme Court recently stayed the Utah marriage ruling pending appeal, he adopted a similar stay, anticipating what would happen if he denied a stay and the state appealed for one.

Thus, same-sex marriage may not actually happen in Oklahoma for some time as this case makes its way through the appellate process, but Judge Kern has provided another nail in the coffin of state bans on same-sex marriages, in an opinion that is relatively modest compared to the more far-ranging opinions written by Judge Shelby and now-retired Judge Vaughn Walker in the California Proposition 8 case. This more modestly reasoned opinion may well be more sustainable on appeal for that very reason, as the Supreme Court tends to prefer moving in smaller rather than large doctrinal steps when addressing politically controversial issues.