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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.

Federal Court Orders Recognition of Michigan Same-Sex Marriages

Posted on: January 16th, 2015 by Art Leonard No Comments

U.S. District Court Judge Mark Goldsmith has ruled in Caspar v. Snyder that even though the U.S. Court of Appeals for the 6th Circuit reversed a trial court marriage equality ruling last year, more than 300 couples who married in the brief period time between that overruled decision and the 6th Circuit’s grant of a stay pending appeal are entitled to have their marriages recognized by the state.  Rejecting the state’s argument that the 6th Circuit ruling effectively invalidated the marriages, Judge Goldsmith commented in his January 15 opinion, “what the state has joined together, it may not put asunder.”  Just one day later, the Supreme Court announced that it will be reviewing the 6th Circuit’s decision this term.

A different district judge, Bernard Friedman, ruled late on Friday, March 21, 2014, that Michigan’s ban on same-sex marriages violated the 14th Amendment.  Several county clerks then announced that they would open their offices on Saturday, March 22, to issue marriage licenses to same-sex couples and perform wedding ceremonies, and several hundred couples rushed to take advantage of the opportunity.  Later on that day, the 6th Circuit Court of Appeals granted the state’s motion to stay Judge Friedman’s ruling pending an appeal.  Subsequently, on November 6, the 6th Circuit reversed Judge Friedman’s decision, holding that same-sex couples do not have a constitutional right to marry.  The plaintiffs in that case petitioned the Supreme Court for review, and the Court granted review on January 16, as the 6th Circuit’s decision conflicts with rulings by the 4th, 7th, 9th and 10th Circuits, requiring a national resolution of the question presented in that case.

After the 6th Circuit issued its stay, Michigan Governor Rick Snyder issued a statement acknowledging that the roughly 300 marriages that were performed that Saturday morning were legal marriages, but in his view the stay meant that Michigan’s marriage amendment and statutory ban were back in effect and so the state could not and would not recognize those marriages unless the litigation was finally concluded in favor of the plaintiffs. This state of affairs was obviously unsatisfactory to the people who had gotten married.  Several of those couples represented by the ACLU of Michigan filed a lawsuit seeking to compel the state to recognize their marriages.  A second lawsuit was filed on behalf of people who were married in other states but live in Michigan, claiming that their marriages were also entitled to recognition.  As part of his January 15 ruling, Judge Goldsmith rejected a motion to consolidate the two cases, asserting that they presented distinctly different issues.

Judge Goldsmith concluded that “the continued legal validity of an individual’s marital status is a fundamental right comprehended within the liberty protected under the Due Process Clause of the Fourteenth Amendment.  Even though the court decision that required Michigan to allow same-sex couples to marry has now been reversed on appeal, the same-sex couples who married in Michigan during the brief period when such marriages were authorized acquired a status that state officials may not ignore absent some compelling interest — a constitutional hurdle that the defense does not even attempt to surmount.”

In other words, the state’s main argument in opposing this lawsuit was not that there was some compelling reason not to recognize these marriages.  Rather, the state was arguing, among other things, that it was premature to recognize them until there is a final conclusion to the original marriage case, DeBoer v. Snyder, by the Supreme Court either denying review or deciding the case on the merits.  But to Judge Goldsmith, once a clerk had issued a license and the marriage had been solemnized, it was a legal marriage, and the married couple had a right to be treated the same as all other married couples in the state unless the state had a compelling justification for treating them differently.

The state also mounted a barrage of procedural objections, including claiming that withholding recognition did not impose any harm that could not be remedied later on by monetary damages if the Supreme Court eventually reverses the 6th Circuit decision, obviating the need for the court to issue in injunction requiring recognition now.  But Judge Goldsmith did not agree that the plaintiffs’ claim to recognition for their marriages turned on that eventual outcome.  To be sure, if the Supreme Court reverses the 6th Circuit and holds that same-sex couples have a constitutional right to marry, the state’s continuing refusal to recognize these marriages would be unconstitutional.  On the other hand, Goldsmith asserted, even if the Supreme Court upholds the 6th Circuit, those marriages would still be valid, because at the time the clerks were issuing those licenses and performing those ceremonies pursuant to a duly issued federal district court decision that had not yet been stayed or reversed on appeal.

Furthermore, held Goldsmith, the plaintiffs had adequately shown that the harms they suffered were not just monetary.  There is a dignitary harm in being denied recognition of a lawfully-contracted marriage that cannot be compensated entirely by money, thus the plaintiffs are suffering an irreparable injury every day that the state denies recognition to their marriages, apart from the concrete refusal to allow certain of the couples to adopt a partner’s child or enroll in an employee benefits plan.  In this connection, it is worth remembering that the DeBoer case originated in a refusal to allow a same-sex co-parent to adopt, and that monetary damages cannot possibly fully compensate somebody for being prevented from obtaining a legal status for their family.

Judge Goldsmith also rejected the state’s suggestion that requiring recognition of the marriages now, while the ultimate outcome of the DeBoer case remains in doubt, might lead to the awkward and difficult process of having to unravel these marriages if the 6th Circuit’s decision is upheld.  The judge rejected the notion that the state would be entitled to try to recoup benefits or rescind insurance coverage retroactively in such a case, or that an affirmance of the 6th Circuit’s decision would necessarily mean that the marriages in question are invalid.  A reversal of the original trial court ruling in DeBoer by the 6th Circuit did not mean that district court’s ruling was of no effect, he wrote, characterizing the state’s argument to that effect as “an oversimplified misstatement.”  He pointed to other cases whether overturned trial court orders were nonetheless viewed retroactively as having legal effect until they were overruled.

As to Governor Snyder’s original statement that the 6th Circuit’s stay had “resurrected” the state’s marriage ban, Judge Goldsmith said, “Nothing in the DeBoer opinion addresses the right to retain one’s marital status in the face of the solemnizing state’s effort to invalidate it.  That question was never argued in DeBoer or decided.”  He wrote, “Plaintiffs acquired a marital status that Michigan bestowed upon them, and which Defendants – Michigan officials – themselves acknowledge was lawfully acquired at the time, pursuant to validly issued Michigan marriage licenses.”

However, realizing that the state might want to exercise its right to appeal his order, Judge Goldsmith granted a 21-day stay to give the state an opportunity to request a further stay pending appeal from the 6th Circuit and, if need be, the Supreme Court.  So although he has ordered the state to recognize these marriages, the order may not actually go into effect until the Supreme Court decides the marriage question, rendering the order a bit academic at this point.  Furthermore, the Supreme Court’s decision to review the 6th Circuit’s ruling gives that court more information upon which to decide whether a further stay should be granted.

ACLU attorneys representing the plaintiffs in this case include Jay D. Kaplan, Daniel S. Korobkin, Brook A. Merriweather-Tucker, and John A. Knight.  Also participating for plaintiffs is Andrew W. Nickelhoff, a Detroit attorney at Sachs Waldman P.C.  A team of attorneys led by Michael F. Murphy, an Assistant Attorney General, represents the state of Michigan.  News reports about this decision suggests some uncertain about whether the state would seek an appeal, but ultimately that seems likely, if only to preserve its right to appeal while regardless of what the Supreme Court does in the DeBoer case.

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.

 

Bush Appointees Split Over Stay of Michigan Marriage Ruling

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

A panel of three federal judges, all appointed by George W. Bush, were split 2-1 about issuing a stay of the U.S. District Court’s ruling that Michigan must allow same-sex couples to marry. Circuit Judge John M. Rogers and Kentucky Chief District Judge Karen Caldwell voted to grant the state’s motion for a stay, while Circuit Judge Helene White dissented.

The approach of the majority seemed to be “Ours is not to reason why,” as they punted on applying the four-factor test that courts in the 6th Circuit normally apply in determining whether to stay a district court ruling pending appeal.

The four factors are: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. Rather than evaluating these factors, the court said “these factors balance no differently than they did in Kitchen v. Herbert,” the Utah marriage case. In that case, the Supreme Colurt ordered a stay. Thus, the majority of this panel punted to the Supreme Court, saying, “There is no apparent basis to distinguish this case or to balance the equities any differently than the Supreme Court did in Kitchen.” They also noted that several district courts in other cases had stayed their rulings, including a Kentucky case headed to the 6th Circuit on appeal.

The problem is that the Supreme Court provided no explanation of how it had weighed the factors, or even whether it had done so. And so Judge White, finding no guidance in the Kitchen ruling, went ahead to weigh the factors herself. “Michigan has not made the requisite showing,” she wrote. In light of the lack of specific guidance from the high court, “I would therefore apply the traditional four-factor test, which leads me to conclude that a stay is not warranted.”

What nobody can bring themselves to say explicitly is that when issues like this get to the Supreme Court, the decision to issue a stay is as much a political decision as a legal decision and, indeed, in this case the Supreme Court provided no legal reasoning because it seems that its decision to stay the Utah ruling was political. Any honest evaluation of the traditional four factors would produce little support for the stay, in light of the Supreme Court’s ruling in U.S. v. Windsor.

But there we have it. No more same-sex marriages in Michigan until there is a final appellate resolution. Although this 6th Circuit panel granted the motion to stay the district court’s order “pending final disposition of Michigan’s appeal by this court,” nobody can believe that the stay would immediately end if a 6th Circuit panel affirms Judge Bernard Friedman’s decision, for such a 6th Circuit ruling would be stayed to allow the state time to petition the Supreme Court for certiorari, and then stayed pending disposition by the Supreme Court. However, it seems likely that the 10th or 9th Circuits will render decisions that work their way to the Supreme Court before the 6th Circuit does, since the 10th Circuit will hear arguments in April in the Utah and Oklahoma cases and the 9th, which is on an expedited schedule with the Nevada case, should be hearing arguments soon after. The 4th Circuit may also decide the Virginia case before the 6th gets to Michigan (and Kentucky and Tennessee). Nobody knows which case will ultimately get to the Supreme Court. But as a practical matter, it seems likely that same-sex marriages will not resume in Michigan until the Supreme Court issues a ruling on marriage equality, most likely in the spring of 2015.

Michigan Marriage Equality Ruling Repudiates Regnerus “Study” as “Unbelievable”

Posted on: March 21st, 2014 by Art Leonard No Comments

Senior U.S. District Judge Bernard A. Friedman ruled on March 21 that the Michigan Marriage Amendment and the statutes that implement it, which prohibit same-sex marriages in Michigan, violate the Equal Protection Clause of the 14th Amendment. Judge Friedman ordered the state to stop enforcing the ban. Friedman released his opinion shortly after business hours, so county clerk offices around the state were already closed for the weekend and marriage licenses could not be immediately issued. Attorney General Bill Schuette quickly filed an “emergency” petition for a stay of the ruling while the state prepared to appeal to the U.S. Court of Appeals for the 6th Circuit, which is already facing appeals of marriage recognition rulings from three other states: Ohio, Kentucky and Tennessee. The case is DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274, 2014 WL 1100794 (March 21, 2014). Four county clerk offices especially opened on Saturday morning, March 22, to issue marriage licenses to same-sex couples, and 315 couples obtained licenses before the 6th Circuit issued an order temporarily staying the district court’s opinion until Wednesday, March 26. The 6th Circuit also requested the plaintiffs to respond to Schuette’s emergency petition by noon on Tuesday, March 25, thus giving itself a day to decide whether to stay the decision further until the appeal can be decided, a result that seemed likely given the Supreme Court’s stay of the Utah marriage decision under similar circumstances.

Judge Friedman’s ruling in DeBoer v. Snyder is the first federal marriage equality ruling since last spring’s Supreme Court decision in United States v. Windsor to be based on a trial record. Friedman had previously denied a motion for summary judgment filed by the plaintiffs, finding that because the rational basis standard for evaluating claims of sexual orientation discrimination is mandated by 6th Circuit precedent he should allow the parties to put on evidence on the question whether the marriage ban is rationally related to a legitimate governmental purpose. Friedman found that this standard was not met. In so doing, he emphatically rejected the expert testimony presented by the state, most particularly the testimony of University of Texas Professor Mark Regnerus, which Friedman characterized as “unbelievable.”

In support of a prior motion for summary judgment filed by the state and rejected by Friedman, the state had advanced four alleged “legitimate state interests” in support of its marriage ban: providing an optimal environment for child rearing; proceeding with caution before altering the traditional definition of marriage; upholding tradition and morality, and relying upon the argument that defining marriage is “within the exclusive purview of the state’s police power.” The trial was devoted almost entirely to the first of these, both sides presenting expert witnesses whose testimony was summarized and evaluated in Judge Friedman’s opinion.

Judge Friedman found believable and credible the testimony presented by the plaintiffs’ experts, psychologist David Brodzinsky, sociologist Michael Rosenfeld, law professor Vivek Sankaran, historian Nancy Cott, and demographer Gary Gates. These experts showed that same-sex couples are competent parents whose children experience outcomes essentially the same as those achieved by the children of married different-sex couples, that historically marriage licenses have not been withheld from couples who are unable or unwilling to procreate, marriage has not been denied to particular classes of prospective parents based on any evidence that they produce inferior outcomes for their children, and that thousands of same-sex couples in Michigan were raising thousands of children who were being disadvantaged by the denial of marriage to their parents. Friedman also heard evidence from one of the defendants, Oakland County Clerk Lisa Brown, who he noted in a footnote “has adopted plaintiffs’ legal position challenging the MMA.” Brown testified to the minimal requirements for obtaining a marriage license in Michigan, which do not include any proof of ability or intention to procreate and do not generally disqualify people because of characteristics — such as a criminal record — which might suggest problems about their ability to provide an appropriate home environment for children.

Next Judge Friedman turned to the state’s “experts.” One can put that word in quotation marks because Friedman rejected their testimony, finding it unbelievable and not credible.

Professor Regnerus was the lead expert witness for the state, basing his testimony on his 2012 paper, “New Family Structures Study” published in Social Science Research. Friedman summarized Regnerus’s testimony and the testimony criticizing his study by the plaintiffs’ experts, and concluded that Regnerus’s opinions should be totally rejected. “The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration,” wrote Judge Friedman. “The evidence adduced at trial demonstrated that his 2012 ‘study’ was hastily concocted at the behest of a third-party funder, which found it ‘essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society’ and which ‘was confident that the traditional understanding of marriage will be vindicated by this study.’ In the funder’s view, ‘the future of the institution of marriage at this moment is very uncertain’ and ‘proper research’ was needed to counter the many studies showing no differences in child outcomes. The funder also stated that ‘this is a project where time is of the essence.’ Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger and Windsor v. United States were threatening the funder’s concept of ‘the institution of marriage.’

“While Regnerus maintained that the funding source did not affect his impartiality as a researcher,” continued Friedman, “the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study ‘a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements,’ but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a ‘romantic relationship with someone of the same sex’ for any length of time. Whatever Regnerus may have found in this ‘study,’ he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement.” The reference is to a statement by the American Psychological Association asserting that there is essentially no difference in outcome between children raised by comparable same-sex and different-sex couples.

Judge Friedman was similarly dismissive of the other “experts” offered as witnesses by the state, family studies Professor Loren Marks, economist Joseph Price and economist Douglas Allen. “The Court was unable to accord the testimony of Marks, Price and Allen any significant weight,” he wrote, finding their criticisms of the plaintiffs’ experts to be invalid. “They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields. The most that can be said of these witness’s testimony is that the ‘no differences’ consensus has not been proven with scientific certainty, not that there is any credible evidence showing that children raised by same-sex couples fare worse than those raised by heterosexual couples.”

Turning to his legal analysis, he found that the trial testimony had disproved the “premise” that “heterosexual married couples provide the optimal environment for raising children.” He pointed out that “the optimal child-rearing justification for the MMA is belied by the state’s own marriage requirements” and that, “contrary to the state defendants’ contentions, the MMA actually fosters the potential for childhood destabilization” by placing parent-child relationships at risk if one parent in a couple dies or becomes incapacitated and the child is not legally related to the other parent. He pointed out, in a bit of amusing hyperbole, that were the state really interested in allowing marriages only for couples who would provide the “optimal” environnment as measured by such outcomes as academic and social achievements of children, “the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples,” and found “the absurdity of such a requirement” to be “self-evident.” “Optimal academic outcomes for children cannot logically dictate which groups may marry.”

Finally, on this point, he noted the basic irrelevance of this justification because the “optimal environment” for raising children “is simply not advanced by prohibiting same-sex couples from marrying.” In light of the demographic evidence, it was clear that “prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents. There is, in short,” he concluded on this point, “no logical connection between banning same-sex marriage and providing children with an ‘optimal environment’ or ‘achieving ‘optimal outcomes.'”

Friedman quickly disposed of the other purported justifications for the ban, noting that “proceeding with caution” must give way when constitutional rights are at stake, that “tradition and morality” have been repeatedly rejected by federal courts as justifications for restricting constitutional rights, and that the state’s “federalism” argument had been effectively rejected by the Supreme Court in Loving v. Virginia (the opinion striking down Virginia’s criminal ban on interracial marriages) and U.S. v. Windsor. “Taken together,” he wrote, “both the Windsor and Loving decisions stand for the proposition that, without some overriding legislative interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA must not stand.” He also rejected the state’s argument that the MMA had some kind of special legal status because it was enacted by the voters. “The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question.”

Federal judges have over the past few months proved to be unusually eloquent as they conclude their same-sex marriage opinions, and Judge Friedman is no exception. “In attempting to define this case as a challenge to ‘the will of the people,’ state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court’s fervent hope that these children will grow up ‘to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives,'” he continued, quoting from the Supreme Court’s opinion in U.S. v. Windsor. “Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”

Judge Friedman will undoubtedly be criticized by some as a “judicial activist” and a radical liberal. Suffice to point out that he was appointed to the court by President Ronald Reagan in 1988, during an administration that reportedly had a strict conservative litmus test for judicial appointees. He is a veteran of more than a quarter century on the court, and served as its chief judge for several years, having taken senior status a few years ago. Some of the judges who have rendered marriage equality rulings in recent months have been recent appointees of President Obama, but Judge Friedman, like Judge Shelby from Utah, is an appointee of a Republican president with lengthy judicial experience.

Federal Judge Schedules February 25 Trial on Constitutionality of Michigan Marriage Amendment

Posted on: October 16th, 2013 by Art Leonard No Comments

U.S. District Judge Bernard Friedman heard arguments on October 16 from the state of Michigan and lawyers for a lesbian couple who want to jointly adopt each other’s children, before announcing that he was denying each side’s motion for summary judgment and scheduling a February 25 trial on the constitutionality of the Michigan Marriage Amendment.  The Amendment’s constitutionality is an issue in the case because Michigan’s adoption statute only allows couples who are married to adopt jointly, and the Amendment prohibits same-sex marriages in the state.  The case is Deboer v. Snyder, Civil Action No. 12-cv-10285.

In a brief opinion released after the hearing, Judge Friedman explained that there was a factual dispute that would have to be resolved based on trial evidence before he could determine whether the Amendment is constitutional.  The dispute concerns the state’s argument that “providing children with ‘biologically connected’ role models of both genders that are necessary to foster healthy psychological development” justifies denying same-sex couples the right to marry.   Friedman quoted extensively from an affidavit by Dr. Jeanne Howard, Co-Director of the Center for Adoption at Illinois State University, which had been submitted by the plaintiffs in support for their motion for summary judgment.  Dr. Howard’s affidavit reviews studies showing that children raised by same-sex couples “show patterns of adjustment similar to those of heterosexual adoptive parents and their children,” and that other studies have shown “no differences for children in psychological adjustment, gender identification” as between those raised by same-sex couples and by different-sex couples.  “After reviewing the record, including Dr. Howard’s affidavit, the Court concludes that a genuine issue of material fact exists with respect to defendants’ gender role-modeling justification for the MMA,” wrote Friedman.

The state had offered three other justifications, but Friedman noted that all of them “have been rejected by other courts in recent years,” most significantly in the Supreme Court’s decision in Edie Windsor’s case on June 26, so this case will be a battle of expert witnesses about the psychological development of children raised by same-sex couples.  There are no reputable studies showing that children are disadvantaged psychologically from being raised by same-sex couples, apart from the notorious Regnerus study, whose methodology and interpretation have been severely challenged.  If the state calls Prof. Mark Regnerus as an expert witness, his cross-examination by plaintiffs’ counsel will provide a first opportunity to question him under oath about the sharply disputed circumstances under which the study was produced and the disputed conclusions about what it purports to show.

If this scheduled trial sounds like a replay of an old show, that’s because the Proposition 8 trial in California in 2010 was devoted almost exclusively to this issue, and so was the first-ever marriage equality trial, held in Hawaii in October 1996.  In both of those cases, testimony by the state’s witnesses ended up making the case for the plaintiffs, as they conceded under cross-examination that children have not been shown to be disadvantaged from being raised by same-sex parents, and that denying their parents the right to marry was actually disadvantaging the children materially and psychologically.  In both of those cases, the trial judges produced lengthy opinions with detailed findings of fact, rejecting the state’s argument that concern for the psychological welfare of children justified denying the right to marry to same-sex couples.

Judge Friedman announced that he would apply the “rational basis” approach to evaluating the constitutionality of the Amendment.  Because the 6th Circuit Court of Appeals, whose precedents bind the district court in Michigan, “does not consider gays or lesbians a suspect or quasi-suspect class” for purposes of constitutional analysis, Judge Friedman concluded that heightened or strict scrutiny does not apply to this case.  But he took note of the recent DOMA ruling from the 1st Circuit and the Supreme Court Windsor case, suggesting that something more than the highly deferential traditional rational basis test would apply, in light of the history of discrimination at the hands of the state government suffered by gay people.