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Catholic Foster Care Agency Seeks Supreme Court Review of Exclusion from Philadelphia Program

Posted on: July 24th, 2019 by Art Leonard No Comments

Catholic Social Services (CSS), a religious foster care agency operated by the Archdiocese of Philadelphia, has asked the U.S. Supreme Court to overrule a decision by the U.S. Court of Appeals for the 3rd Circuit, which on April 22 rejected CSS’s claim that it enjoys a constitutional religious freedom right to continue functioning as a foster care agency by contract with the City of Philadelphia while maintaining a policy that it will not provide its services to married same-sex couples seeking to be foster parents.  The decision below is Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).

CSS and several of its clients sued the City when the agency was told that if it would not drop its policy, it would be disqualified from certifying potential foster parents whom it deemed qualified to the Family Court for foster care placements and its contract with the City would not be renewed.  CSS insists that the City’s Fair Practices Ordinance, which prohibits discrimination because of sexual orientation by public accommodations, does not apply to it, and that it is entitled under the 1st Amendment’s Free Exercise Clause to maintain its religiously-based policy without forfeiting its longstanding role within the City’s foster care system.

The Petition filed with the Clerk of the Court on July 22 is one of a small stream of petitions the Court has received in the aftermath of its June 26, 2015, marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court held that same-sex couples have a right to marry and have their marriages recognized by the states under the 14th Amendment’s Due Process and Equal Protection Clauses.   Dissenters in that 5-4 case predicted that the ruling would lead to clashes based on religious objections to same-sex marriage.  Most of those cases have involved small businesses that refuse to provide their goods or services for same-sex weddings, such as the Masterpiece Cakeshop decision from last spring, 138 S. Ct. 1719 (2018).

This new petition is one of many that may end up at the Court as a result of clashes between local governments that ban sexual orientation discrimination and government contractors who insist that they must discriminate against same-sex couples for religious reasons.  Catholic foster care and adoption services have actually closed down in several cities rather than agree to drop their policies against providing services to same-sex couples. CSS argues that it will suffer the same fate, since the services it provides – screening applicants through home studies, assisting in matching children with foster parents, and providing support financially and logistically to its foster families through funding provided by the City – can only legally be provided by an agency that has a contract with the City, and that even as its current contract plays out, the refusal of the City to accept any more of its referrals has resulted in its active roster of foster placements dropping by half in a short period of time, requiring laying off part of its staff.

Desperate to keep the program running, CSS went to federal district court seeking preliminary injunctive relief while the case is litigated, but it was turned down at every stage.  Last summer, when the 3rd Circuit denied a motion to overturn the district court’s denial of preliminary relief, CSS applied to the Supreme Court for “injunctive relief pending appeal,” which was denied on August 30, with the Court noting that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the Application.  See 139 S. Ct. 49 (2018). That at least three justices would have provided interim relief suggests that CSS’s Petition for review may be granted, since the Court grants review on the vote of four justices, and Brett Kavanaugh, who was not on the Court last August, might provide the fourth vote.

According to its Petition, CSS dates from 1917, when the City of Philadelphia was not even involved in screening and licensing foster parents.  CSS claims that from 1917 until the start of this lawsuit, it had never been approached by a same-sex couple seeking to be certified as prospective foster parents.  CSS argues that as there are thirty different agencies in Philadelphia with City contract to provide this service, same-sex couples seeking to be foster parents have numerous alternatives and if any were to approach CSS, they would be promptly referred to another agency.  CSS argues that referrals of applicants among agencies are a common and frequent practice, not a sign of discrimination.

CSS has three different arguments seeking to attract the Court’s attention.  One is that it was singled out due to official hostility to its religiously-motivated policy and that the City’s introduction of a requirement that foster agencies affirmatively agree to provide services to same-sex couples was inappropriately adopted specifically to target CSS.  Another is that the 3rd Circuit misapplied Supreme Court precedents to find that the City’s policy was a “neutral law of general application” under the 1990 Supreme Court precedent of Employment Division v. Smith, 494 U.S. 872 (1990), and thus not subject to serious constitutional challenge.  Finally, CSS argues, the Smith precedent has given rise to confusion and disagreement among the lower federal courts and should be reconsidered by the Supreme Court.

Opponents of same-sex marriage have been urging the Court to reconsider Smith, which was a controversial decision from the outset.  In Smith, the Supreme Court rejected a challenge to the Oregon Unemployment System’s refusal to provide benefits to an employee who was discharged for flunking a drug test. The employee, a native American, had used peyote in a religious ceremony, and claimed the denial violated his 1st Amendment rights.  The Court disagreed, in an opinion by Justice Antonin Scalia, holding that state laws that are neutral regarding religion and of general application could be enforced even though they incidentally burdened somebody’s religious practices.  Last year, Justice Neil Gorsuch’s opinion, concurring in part and dissenting in part in Masterpiece Cakeshop, suggested reconsideration of Smith, and since the Masterpiece ruling, other Petitions have asked the Court to reconsider Smith, including the “Sweetcakes by Melissa” wedding cake case from Oregon.  So far, the Court has not committed itself to such reconsideration.  In the Sweetcakes case, it vacated an Oregon appellate ruling against the recalcitrant baker and sent the case back to the state court for “further consideration” in light of the Masterpiece Cakeshop ruling, but said nothing about reconsidering Smith.

The CSS lawsuit arose when a local newspaper, the Philadelphia Inquirer, published an article reporting that CSS would not provide foster care services for same-sex couples.  The article sparked a City Council resolution calling for an investigation into CSS.  Then the Mayor asked the Commission on Human Relations (CHR), which enforces the City’s Fair Practices Ordinance (FPO), and the Department of Human Services (DHS), which contracts with foster care agencies, to investigate.  The head of DHS, reacting to the article’s report about religious objections to serving same-sex couples, did not investigate the policies of the many secular foster care agencies.  She contact religious agencies, and in the end, only CSS insisted that it could not provide services to same-sex couples, but would refer them to other agencies.

After correspondence back and forth and some face to face meetings between Department and CSS officials, DHS “cut off CSS’s foster care referrals,” which meant that “no new foster children could be placed with any foster parents certified by CSS.”  DHS wrote CSS that its practice violated the FPO, and that unless it changed its practice, its annual contract with the City would not be renewed. This meant that not only would it receive no referrals, but payments would be suspended upon expiration of the current contract, and CSS could no longer continue its foster care operation.  CSS and several women who had been certified by CSS as foster parents then filed suit seeking a preliminary injunction to keep the program going, which they were denied.

CSS’s Petition is artfully fashioned to persuade the Court that the 3rd Circuit’s approach in this case, while consistent with cases from the 9th Circuit, is out of sync with the approach of several other circuit courts in deciding whether a government policy is shielded from 1st Amendment attack under Smith.  Furthermore, it emphasizes the differing approaches of lower federal courts in determining how Smith applies to the cases before them.  The Supreme Court’s interest in taking a case crucially depends on persuading the Court that there is an urgent need to resolve lower court conflicts so that there is a unified approach throughout the country to the interpretation and application of constitutional rights.

The Petition names as Respondents the City of Philadelphia, DHS, CHR, and Support Center for Child Advocates and Philadelphia Family Pride, who were defendant-intervenors in the lower courts.  Once the Clerk has placed the Petition on the Court’s docket, the respondents have thirty days to file responding briefs, although respondents frequently request and receive extensions of time, especially over the summer when the Court is not in session.  Once all responses are in, the case will be distributed to the Justices’ chambers and placed on the agenda for a conference.  The Court’s first conference for the new Term will be on October 1.

Last summer, when the Court was considering Petitions on cases involving whether Title VII of the Civil Rights Act forbids sexual orientation or gender identity discrimination, the U.S. Solicitor General received numerous extensions of time to respond to the Petitions, so those cases were not actually conferenced until the middle of the Term and review was not granted until April 22.  Those cases will be argued on October 8, the second hearing date of the Court’s new Term.

The Petitioners are represented by attorneys from The Becket Fund for Religious Liberty, a conservative religiously-oriented litigation group that advocates for broad rights of free exercise of religion, and local Philadelphia attorneys Nicholas M. Centrella and Conrad O’Brien.  Their framing of this case is reflected in the headline of their press release announcing the Petition: “Philly foster mothers ask Supreme Court to protect foster kids.”

Municipal respondents are represented by Philadelphia’s City Law Department.  Attorneys from the ACLU represented the Intervenors, who were backing up the City’s position, in the lower courts.

The 3rd Circuit was flooded with amicus briefs from religious freedom groups (on both sides of the issues), separation of church and state groups, LGBT rights and civil liberties groups, and government officials.  One brief in support of CSS’s position was filed by numerous Republican members of Congress; another by attorney generals of several conservative states.  The wide range and number of amicus briefs filed in the 3rd Circuit suggests that the Supreme Court will be hearing from many of these groups as well, which may influence the Court to conclude that the matter is sufficiently important to justify Supreme Court consideration.

District of Columbia Court of Appeals Rules on Same-Sex Common Law Marriage Claim

Posted on: May 6th, 2019 by Art Leonard No Comments

“Brian Gill and Rodney Van Nostrand were in a romantic relationship and cohabited for several years beginning in 2004,” begins Judge Phyllis Thompson’s opinion for the District of Columbia Court of Appeals in Gill v. Van Nostrand, 2019 WL 1827998, 2019 D.C. App. LEXIS 159 (April 25, 2019).  “After their romantic relationship waned, and a few months after Mr. Van Nostrand had a ceremonial wedding in Brazil to another man he had met while on a lengthy work assignment in that country, Mr. Gill filed a complaint for legal separation from Mr. Van Nostrand, alleging that the two men are parties in a common law marriage that began in 2004.”  Van Nostrand’s denial that the men were common-law married led to a trial in D.C. Superior Court, resulting in a decision by Judge Robert Okun rejecting Gill’s claim.  Gill’s appeal of that ruling is the subject of the Court of Appeals’ April 25 ruling.  The District of Columbia Court of Appeals is the equivalent of a state supreme court for the District of Columbia.  Its rulings can be appealed to the U.S. Court of Appeals for the D.C. Circuit.

Judge Thompson’s opinion goes to considerable length to explain why the court affirmed Judge Okun’s ruling, and to set out in some detail how District of Columbia trial courts should evaluate claims that same-sex couples had formed common law marriages prior to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).  Although the District of Columbia legislated to allow same-sex marriage several years prior to Obergefell, the issue of whether same-sex couples could form such marriages in the District, one of a handful of U.S. jurisdictions that still recognize same-sex marriages, depends on retroactive application of Obergefell’s holding that same-sex couples enjoy a fundamental right to marry as an aspect of liberty guaranteed by the Due Process Clause.  In the case of D.C., of course, the relevant Due Process Clause would be that in the 5th Amendment of the Bill of Rights, whereas the Due Process Clause upon which the Court relied in Obergefell was that in the 14th Amendment, binding on the states.

The D.C. Court of Appeals agreed with Judge Okun that the fundamental right identified by the Supreme Court in Obergefell did apply to the marital aspirations of same-sex couples at the time in question (2004).  The issue is how to decide whether a particular couple was in a common law marriage, when the District’s relevant case law was stated, in large part, in ways pertaining to different-sex couples whose right to marry at the time was legally recognized, as such a right was not then recognized for same-sex couples.  At an early stage in this case, Judge Okun refused Van Nostrand’s motion to dismiss the case, stating “that a party in a same-sex relationship must be given the opportunity to prove a common law marriage, even at a time when same-sex marriage was not legal.”  This led to the trial, in which Van Nostrand testified that he never considered himself to be married to Mr. Gill, and Mr. Gill testified about an exchange of rings, a pledge of monogamy, and his belief that they considered themselves effectively married, if not legally so.

Under District of Columbia precedents, “the elements of common law marriage in this jurisdiction are cohabitation as husband and wife, following an express mutual agreement, which must be in word of the present tense.”  Quoting Coleman v. United States, 948 A.2d 534 (D.C. Ct. App. 2008).  What that means is the people can’t just “drift” into a common law marriage in D.C.  There must be a mutual express agreement, and it can’t just be an agreement that sometime in the future the couple will get married; it must be a present statement of agreeing to live as a married couple, albeit without the formalities of a marriage license and ceremony by a governmentally authorized officiant.  Normally a preponderance of the evidence standard would apply, but depending on the circumstances the court might apply a “clear and convincing evidence” standard, which the court found applicable in this case, where Gill is trying to prove a common law marriage with a man who is legally married to another man.  (The court noted that the clear and convincing evidence standard has been used by D.C. courts in the past when somebody is trying to prove that they have a common law marriage with somebody who is legally married to somebody else.)

“We shall assume arguendo that serious constitutional issues would arise if the trial court’s analysis of common-law marriage operated to the peculiar disadvantage of Mr. Gill and Mr. Van Nostrand as a same-sex-couple, i.e., required them to meet expectations that they as a same-sex couple could meet only with more difficulty than opposite-sex couples would encounter,” wrote Judge Thompson.   “Such an approach is arguably warranted in order to accord same-sex couples who have chosen to share their lives in a union comparable to traditional marriage ‘the same respect and dignity accorded a union traditionally designated as marriage,” quoting Strauss v. Horton, 46 Cal. 4th 364 (Cal. 2009), a decision in which the California Supreme Court ruled that marriages of same-sex couples who were married in California prior to the passage of Proposition 8 would have exactly the same status as all legally-contracted marriages in that state.

The trial court focused on six factors in its analysis in concluding that Gill and Nostrand did not have a common law marriage.

First was the failure of either man, but particularly Mr. Gill, to remember the date on which Gill claimed they exchanged rings that they agreed to wear for the duration of their relationship.  Gill testified that he “decided to surprise Mr. Van Nostrand by purchasing two rings and presenting them to Mr. Van Nostrand along with M& M candies inscribed with “Will you marry me?”  Gill testified that he got down on one knew and proposed to Mr. Van Nostrand, who said yes and allowed Gill to slip one of the rings on his finger.  Van Nostrand denied various particulars of this testimony, and there was no testimonial agreement about the date on which this purportedly occurred. The court found Gill’s testimony, which goes to the crucial question of whether there was an express agreement to be married, as “exceptionally vague,” although, by contrast, Gill remembered precisely both their first date and the first time they had sex with each other.  “The court reasoned that ‘the date on which parties agree to be married surely would be at least as memorable [as], if not more memorable . . . than the date on which’ the parties first had sexual relations ‘or first had a “real date” at a restaurant,’” wrote Thompson.  Gill criticized the judge’s “overreliance” on this factor, but the appeals court did not consider this “unfairly prejudicial” or improperly expecting the parties “to meet expectations of traditional marriage that they, as a same-sex couple, could meet only with difficulty.”  Since the date in question is the date when Gill claims to have proposed marriage, proffered a ring, and received an affirmative response from Von Nostrand, the court found failure to remember the date was not an “unreasonable factor to consider,” taking into account that it was not the only or dispositive factor, merely one of several.

Secondly, the trial court found that neither of the men “told their friends or family about the alleged marriage (or perhaps more correctly, the alleged ‘entry into a commitment comparable to marriage’) and the couple did not commemorate it with a ceremony or celebrate it by going on a honeymoon.”  The court did find that at that time both parties’ families had “harsh anti-gay views” which could explain why there was no contemporaneous communication to them about this topic, and the court acknowledged that “same-sex couples, prior to the legalization of same-sex marriage, might have been less likely to have a public ceremony or honeymoon,” but, pointed out Thompson, the question was “how these parties and their friends in the gay community marked or signified important events in their romantic lives,” and evidence was lacking as to that.  Traditionally, “holding out” as married to one’s relevant community is an important signifier of common law marriage, and there was nothing stopping a same-sex couple from taking a honeymoon trip to celebrate their new relationship.  Gill attempted to show that a European trip the men took in 2005 was their “honeymoon,” but Van Nostrand testified to the contrary.

Furthermore, there was evidence that Van Nostrand was partial to “celebrating events in a flamboyant manner,” as shown by his marriage to Weller da Silva, the Brazilian man whom he legally married in April 2014.  Related Thompson, “Mr. Van Nostrand delivered the proposal while the pair were in a hot-air balloon over the Serengeti, created an album commemorating the proposal, told family members and friends, med Mr. da Silva’s family, and, after the two were married, went on a honeymoon trip to Ecuador and the Galapagos Islands.”  (Sounds fab!!)  The trial court credited Van Nostrand’s testimony that “he would not have entered into a marriage with [Gill] without commemorating such an event with … pomp and circumstance” and the evidence showed that Van Nostrand had the financial ability to sustain such activities, as shown by the “shared history of foreign travel” of the two men during their relationship.

The third factor was that the parties “never inscribed their rings,” a step that Van Nostrand credibly testified they would have done had they considered themselves married.  The court also noted that when marriage became available in Massachusetts, Van Nostrand asked Gill whether he wanted to go there to get married and Gill said no.  He also testified that he asked Gill about having their rings inscribed, but Gill declined, and also declined to enter into a registered domestic partnership, which became available in D.C.  Furthermore, D.C. enacted marriage equality in 2010, but the men did not take the step of formalizing their relationship as a marriage then.  Gill criticized the trial court’s reliance on this factor, but the court found that Van Nostrand credibly testified that these were “the steps he would have taken to symbolize and validate that the parties’ relationship had advanced to a mutual commitment comparable to marriage.”  Here, the court referred to a ruling last year by the Colorado Court of Appeals, Hogsett v. Neale, 2018 WL 6564880, which placed some weight on the failure of a lesbian couple to go out of state to get married as a factor in determining that they did not have a common law marriage under Colorado law.

The fourth factor was that “the parties maintained largely separate finances.”  The house in which they lived together from 2005 was only in Van Nostrand’s name, they had no joint bank accounts or credit card accounts, and even though they discussed creating wills, powers of attorney, and so forth, only Van Nostrand made and executed such documents.  The trial court observed that “although [Gill] was supposed to draft documents giving [Van Nostrand] these same benefits and responsibilities, he failed to do so.”  By contrast, shortly after Van Nostrand married da Silva, they established joint bank accounts and executed wills, powers of attorney and the like.  (A docket search shows that sometime after his marriage to da Silva, Van Nostrand sought to evict Gill from the D.C. home, resulting in litigation in which Gill sought, without success, injunctive relief against the eviction, before a different D.C. trial judge. There is no published opinion, and Judge Okun’s decision in this case is apparently not published, either.)

The fifth factor was Gill’s failure to object or to claim he was in a common law marriage with Van Nostrand when he was informed that Van Nostrand planned to marry da Silva in Brazil.  Gill’s response to this news was not to state that they needed to get divorced first in order for that marriage to take place.  He raised the issue “only after realizing that this would affect” his beneficiary status in terms of Van Nostrand’s employee benefits.  As the court pointedly notes, he seemed to have sprung into action when he was removed from coverage under Van Nostrand’s employment-related health insurance.  He went to an attorney and apparently first learned about the possibility of claiming a common law marriage at that point.  “Mr. Gill asserts that he reacted as he did because he was not aware that the parties’ relationship gave him legally enforceable rights vis-à-vis Mr. Van Nostrand,” observed the court.  The court of appeals found this to be “understandable” as the parties are not lawyers, and the trial court did not deem this as a determinative factor in the analysis.  However, wrote Thompson, “we think the trial court exercised reasonable skepticism in light of Mr. Gill’s financial incentive to claim that the parties had a common-law marriage.  Courts have long ‘regarded common-law marriage as a fruitful source of fraud and perjury,’” quoting In re Estate of Danza, 188 App. Div. 2d 530, 591 N.Y.S. 2d 197 (1992).

Finally, the sixth factor concerns the growing body of court decisions about retroactive common law marriage claims, and particularly a case in which a Pennsylvania trial court did find a common law marriage, In re Estate of Carter, 159 A.3d 970 (Pa. Super. Ct. 2017).  Carter presented ideal facts to find a same-sex common law marriage.  There was a marriage proposal and a diamond ring that Mr. Hunter gave Mr. Carter on Christmas Day 1996, a day easy to remember and prove. Mr. Carter then gave Hunter an engraved diamond ring on February 18, 1997, with the date inscribed, and the men faithfully observed that date as their anniversary for 16 years until Carter’s death.  They had joint banking and investment accounts, owned their home together with a joint mortgage, had mutual wills and powers of attorney, and referred to each other as spouses.  While Judge Okun disclaimed requiring that all these factors be satisfied in order to find a common law marriage for a same-sex couple formed prior to the legalization of same-sex marriages, he reasoned that Gill’s “failure to prove any of these factors substantially undercuts his effort to prove the existence of a common law marriage.”  In this case, Judge Okun found that the men had at best “an agreement to get married at some point in the future.” Wrote Thompson, “We cannot say that the trial court’s reliance on Carter as persuasive authority and its resultant analysis were legally or factually erroneous.”

In conclusion, wrote Thompson, “For all the foregoing reasons, we are satisfied that the evidence did not compel the trial court to conclude that the parties had an express mutual agreement to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.  The evidence permitted the court to conclude, as it did, that the parties never expressly agreed to be married, in the present tense.”  And that decides the case consistent with D.C. case law.

Gill is represented by Aaron Marr Page and Christopher J. Gowen.  Jack Maginnis represents Van Nostrand.  As noted, this ruling could be appealed to the U.S. Court of Appeals for the D.C. Circuit.  Federal question jurisdiction is not required for an appeal from the D.C. local courts on questions of D.C. common law, but if it were, this case arguably presents an underlying constitutional question concerning the jurisdiction’s obligation to recognize the fundamental rights of same-sex couples to enter into common law marriages, and the question whether the trial court’s analysis did not adequately respect that right could still be argued on appeal.  However, Judge Thompson took great lengths to reiterate the D.C. Court of Appeals’ view that the court had to take account of contemporary circumstances pre-Obergefell in avoiding unfairly prejudicing the question by imposing unreasonable expectations on how same-sex couples intended to form a common law marriage would have acted in 2004, and that the trial court had done that adequately in this case.

Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

Iowa Appeals Court Affirms Ruling Against Lesbian’s Brother Attempting to Invalidate Bequest to Her Surviving Partner

Posted on: February 26th, 2018 by Art Leonard No Comments

 

David Lance Wilson struck out in his attempt to get the Iowa courts to hold that a provision in his late sister’s will leaving her entire estate to her long-time partner, Susan Woodall Fisher, was automatically revoked when the women allegedly split up nine years before the sister’s death. Affirming a summary judgment ruling by Crawford County District Judge Patrick H. Tott, the Iowa Court of Appeals ruled on February 7 in Estate of Wilson; Wilson v. Fisher, 2018 WL 739248, 2018 Iowa App. LEXIS 155, that Iowa’s Probate Code, Sec. 633.271(1), would only revoke such a bequest if a marriage was dissolved in a court action, but there is no court record of any such proceeding.

 

Although the court’s ruling was an unexceptionable interpretation of the statute on its face, the factual setting of the case is a bit odd, to say the least. In order to attempt to invoke the revocation statute, David Wilson had to allege in his petition for declaratory judgment that the women had been legally married, a contention that is demonstrably untrue, but which was accepted as an “undisputed fact” for purposes of this case in the responsive pleading filed by the co-executors of the estate, Fisher and John C. Werden, and thus by the court as well, in its opinion by Judge Christopher L. McDonald.

 

According to Judge McDonald’s summary of the factual allegations, Leslie Wilson and Susan Fisher, same-sex partners, were married in Colorado “sometime before November 6, 1991,” on which date Leslie “executed her last will and testament. Under the will, Susan was to receive Leslie’s entire estate.  Leslie’s brother, David, was listed as the successor beneficiary.”  After Leslie passed away in March 2014, Susan filed an application in the Crawford County District Court for probate of a “foreign probated will.”  District Judge Tott admitted the will into probate, and appointed Fisher and John C. Werden as “personal representatives” of the Iowa estate.  “Susan subsequently filed an election to take under the will as Leslie’s surviving spouse.  In June 2015, the personal representatives executed and recorded a court officer deed conveying an undivided one-half interest in real property owned by Leslie at the time of her death to Susan.”

 

David showed up six months later, filing his petition in the District Court alleging that Susan and Leslie had “dissolved” their marriage and that they “never cohabitated again and never remarried.” According to David, this dissolution, which involved terminating their relationship and dividing their assets, occurred in 2005.  He was relying on Code Section 633.271(1), titled “Effect of divorce or dissolution,” which states, “If after making a will the testator is divorced or the testator’s marriage is dissolved, all provisions in the will in favor of the testator’s spouse … are revoked by the divorce or dissolution of marriage, unless the will provides otherwise.”  Of course, this provision only applies if there was a marriage to begin with.

 

In a footnote, the court acknowledged that “same-sex marriages were not recognized in Colorado until October 2014. However, the parties stipulated in their pleadings that ‘Susan … and Leslie … were married in the state of Colorado’ prior to that time.  We need not address the issue of whether the parties were legally married in Colorado because it is immaterial to our resolution of the case.  If they were not legally married under Colorado law, then Iowa Code section 633.271(1)(2016) does not apply, and we would affirm.  Under the analysis used in this opinion, which assumes without deciding they were legally married, we also affirm.”

 

David sought to persuade the court that because the provision in question states “divorce or dissolution of marriage,” the words “divorce” and “dissolution” must refer to two different things. A “divorce” is obviously a legal proceeding terminating a marriage.  David argued that “dissolution” must, therefore, refer to an informal voluntary termination of a marriage by the parties without involving the courts.  But the court of appeals panel unanimously rejected this argument.

 

Judge McDonald referred to Chapter 598 of the Iowa code which “expressly defines a ‘dissolution of marriage’ as ‘a termination of the marriage relationship,’” and more specifically to Section 598.1(2), in which, he asserted, “The legislature has expressly directed that the term ‘dissolution of a marriage’ ‘shall be synonymous with the term ‘divorce.’” Thus, the court concluded, “the terms ‘divorced’ and ‘dissolved’ as used in Section 633.271(1) carry the same meaning – the statute uses the terms in the context of marital relations, and the legislature has expressly defined those terms in the context of marital relations to be synonymous.  In Iowa, a divorce or dissolution of a marriage may only be decreed by a court upon evidence ‘that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.’”

 

As to the contention that parties can voluntarily “dissolve” a marriage without involving the courts, McDonald quoted a 1966 Iowa Supreme Court ruling, stating “We know of no such thing as a common law divorce.” McDonald found similar authority under Colorado law.

 

“It is undisputed that no decree has ever been entered dissolving Susan and Leslie’s marriage. The facts which David argues are in dispute are legally immaterial to the issue of whether Susan and Leslie’s marriage was dissolved.”  Thus, the court affirmed Judge Tott’s ruling granting summary judgment in favor of the Estate and co-executors, denying David’s request for a declaratory judgment that the bequest to Susan was automatically revoked.

 

The court also denied David’s request to delay ruling on the co-executors’ motion for summary judgment until he could obtain discovery. Such discovery would be irrelevant to disposition of this motion, because David’s attempt to use the statute to get the bequest to Susan “revoked” must be rejected regardless of which version of the “facts” one accepts, so long as there is no record of any court decree “dissolving” the Fisher-Wilson “marriage.”  And, of course, even if David is correct in asserting that the women split up and divided their assets in 2005, Leslie’s failure to revoke her will would leave the bequest in place in the absence of a valid marriage and a legal divorce.

 

Aaron W. Ahrendsen of Eich, Werden & Steger, P.C., Carroll, Iowa, represents the co-executors. Bradley J. Nelson of Norelius Nelson Law Firm, Denison, Iowa, represents David.

U.S. Supreme Court Denies Petition to Review Texas Supreme Court Ruling in Houston Benefits Case

Posted on: December 5th, 2017 by Art Leonard No Comments

On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, the 2015 marriage equality ruling, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. In this case, it most likely means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court.  The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling.  It is consistent with the Court’s tight control of its docket, under which sharply limits the number and type of cases that it takes up for review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Retired Texas Supreme Court Justice Wallace B. Jefferson and his law firm, Alexander Dubose Jefferson & Townsend LLP, filed the petition on behalf of Mayor Sylvester Turner and the City of Houston on September 15, several weeks after Lambda Legal had filed a new federal district court lawsuit on behalf of some Houston employees whose same-sex spouses are receiving benefits and who fear losing them in the state court litigation. Lambda’s suit was quickly dismissed by the federal trial judge as not “ripe” for review because the plaintiffs are receiving their benefits and it was likely, in the judge’s view, that the state trial court would rule that the benefits were legal in light of the current state of the law.

The Texas Supreme Court’s June 30 decision, which reversed a ruling by the Texas Court of Appeals, was not a final disposition of that case, instead sending it back to the trial court in Harris County for a hearing on the original claim by plaintiffs Jack Pidgeon and Larry Hicks, Republican anti-gay activists, that the City had unlawfully extended employee benefits eligibility to same-sex spouses of City employees in 2013.

Pidgeon and Hick first started litigating against the City when then-Mayor Annise Parker extended benefits eligibility by executive action after receiving an opinion from the city attorney about the impact of the U.S. Supreme Court’s June 26, 2013, ruling, U.S. v. Windsor, which struck down part of the federal Defense of Marriage Act. Pidgeon and Hicks argued that under Texas statutory and constitutional law at the time, it was illegal for the City to extend the benefits, as the U.S. Supreme Court’s Windsor decision did not address the constitutionality of state laws banning same-sex marriage.

Pidgeon and Hicks had a plausible argument in 2013, enough to persuade the trial judge to issue a preliminary injunction against the City, which promptly appealed. The Court of Appeals sat on the appeal for a few years, waiting for the storm of marriage equality litigation in Texas and throughout the country to play out.  Less than a year after the Windsor decision, a federal trial judge in San Antonio ruled that the state’s ban on same-sex marriage was unconstitutional, but the state’s appeal languished in the 5th Circuit Court of Appeals until after the U.S. Supreme Court decided the Obergefell case on June 26, 2015.  A few days later the 5th Circuit affirmed the trial court’s ruling invalidating the Texas laws banning same-sex marriages.  Then the Texas Court of Appeals reversed the preliminary injunction, instructing the trial court to decide the case in accord with the 5th Circuit’s ruling.  The City then resumed providing the benefits, which it has continued to do.

Undaunted, Pidgeon and Hicks asked the Texas Supreme Court to review the Court of Appeals decision, arguing that the Court of Appeals erred by instructing the trial court to follow the 5th Circuit’s ruling because, as a technical matter, state courts are not bound by federal court of appeals rulings.  They argued, in effect, that the City was still bound to abide by the Texas state law banning recognition of same-sex marriages for purposes of public employee benefits, which had never been invalidated in the state courts and, they argued, was technically not declared unconstitutional by the U.S. Supreme Court, whose opinion in Obergefell only directly struck down state marriage bans in the states of the 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.

After lengthy deliberation, the Texas Supreme Court announced in September 2016 that it would not consider Pidgeon and Hicks’ appeal. This prompted a fervent campaign by Governor Greg Abbott and other elected officials to persuade the court to change its mind, stimulating thousands of Texans to flood the court with demands that it reverse the Court of Appeals decision.  The court ultimately bowed to this pressure, granted review, and issued its June 30 decision.

The Texas Supreme Court agreed that the Texas Court of Appeals should not have treated the 5th Circuit’s decision as binding on the trial court, and opined further that the Obergefell decision was just about whether same-sex couples could marry as a question of federal constitutional law, not what benefits they were entitled to if they married.  This was palpably wrong, as shown by another Supreme Court ruling, just days prior, in Pavan v. Smith, a case from Arkansas involving parental names on birth certificates, in which the Court made clear that married same-sex couples are entitled to the “full constellation of rights” that go with marriage under the Obergefell decision.

At present Pidgeon and Hicks’ lawsuit is still pending in the state trial court and the same-sex spouses of Houston employees are receiving their equal benefits, so it is likely that the Supreme Court justices saw no pressing reason to add this case to their docket. Perhaps they agree with the opinion by U.S. District Judge Vanessa D. Gilmore, who, in dismissing Lambda’s lawsuit, in predicted that the state trial court, being bound to follow U.S. Supreme Court precedent in Obergefell and Pavan, will ultimately reject the challenge to the benefits.

N.Y. Appellate Division Upholds Vacating Adoption by Father’s New Boyfriend on Petition by Father’s Husband

Posted on: October 3rd, 2017 by Art Leonard No Comments

On September 28, 2017, a unanimous five-judge panel of the N.Y. Appellate Division, First Department, held that New York County Family Court Judge Stewart H. Weinstein had properly granted a motion by Han Ming T., the husband of Marco D., to vacate a May 2016 order that had granted an adoption petition by Carlos A., Marco’s boyfriend, to adopt a child conceived through gestational surrogacy using Marco’s sperm at a time when Marco and Han Ming were subsequently deemed to be married.  Ming, who had initiated a divorce proceeding in Florida in which he sought joint custody of the child, then unaware that the adoption petition had been filed in New York, showed that he was entitled to notice of the adoption petition and respect for his parental rights.  Carlos and Marco had failed to inform the Family Court that the status of the child in question was implicated in an ongoing divorce proceeding, so that court had originally granted the adoption unaware that there was a legal impediment as the consent of Ming was lacking. In re Maria-Irene D., 2017 N.Y. App. Div. LEXIS 6713, 2017 WL 4287334, 2017 N.Y. Slip Op 06716.

Marco and Ming, who are both British citizens, entered a formal civil partnership in the U.K. in 2008, which they converted into a legal marriage in 2015. Under British law, their marriage was treated as retroactive to the date of their civil partnership.  Between those two dates they had relocated to the U.S., living in Florida.  In 2013 they undertook to have a child through gestational surrogacy, a process by which an egg is extracted from a donor, fertilized in a petri dish, and then implanted in a surrogate.  Both men contributed sperm for several in vitro fertilization attempts; the one that “took,” using Marco’s sperm, was implanted in the surrogate.  This process was carried out in Missouri, where the child, who was named after the mothers of both men, was born in September 2014.  A Missouri court then terminated any parental rights of the egg donor and the surrogate and designated Marco, the genetic father, as having “sole and exclusive custody” of the child.  “Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment,” wrote the court.

But evidently the relationship of the men was complicated during that time, because, the court reports, “At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the U.K.” Carlos petitioned the New York County Family Court to adopt the child in January 2016.  The adoption papers “disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco have been caring for the child since her birth.  A home study report stated that Marco and Ming legally separated in 2014 and had no children together.”  That Ming had participated in the surrogacy process and that Marco, Ming and the child lived together as a family thereafter were not disclosed to the Family Court in the adoption proceeding.   Neither did Carlos and Marco disclose to that court prior to the adoption order being granted that Ming had filed a divorce action in Florida in March 2016, seeking joint custody of the child.

The Family Court granted the adoption in May 2016. When Ming learned of this, he filed a motion in the Family Court to vacate the adoption “on the ground that relevant facts had not been disclosed to the court and that he was entitled to notice of the adoption and an opportunity to be heard since he had parental rights.”  Judge Weinstein granted Ming’s motion and vacated the adoption, finding that Carlos and Marco made “material misrepresentations” to the court and that Ming was entitled to notice of the proceeding.  Weinstein did leave open the possibility that depending how the divorce proceedings were resolved in Florida, Carlos might later renew his petition to adopt the child.  Carlos moved for re-argument, but the motion was denied, and Carlos and Marco appealed.

The Appellate Division found that the Family Court “providently exercised its discretion in vacating the adoption.” Since the Marco-Ming marriage was retroactive to 2008 under U.K. law, it would be recognized as such under New York law as a matter of comity.  Which meant that the child, born in 2014, was a child of the marriage, “giving rise to the presumption that the child is the legitimate child of both Marco and Ming.”  The court noted Ming’s allegation that they lived together as a family in Florida, and that “the couple took affirmative steps in the U.K. to establish Ming’s parental rights in accordance with U.K. law.”  The court doesn’t explain this further.  Perhaps it refers to their subsequent 2015 marriage, which had retroactive effect under U.K. law to 2008, thus establishing Ming’s parental status, regardless of the Missouri judgement awarding Marco sole and exclusive custody.  (One has to factor into the mix that in 2014 same-sex couples could not marry in Missouri and their U.K. legal status as civil partners when the child was born would have no recognition under Missouri law, so naturally a Missouri court at that time would not recognize Ming as having any legal relationship to the child.)

“The prevailing law at the time the adoption petition was granted does not compel a different result,” said the court. As far as this court was concerned, as a matter of New York law according comity to the retroactive effect of their U.K. marriage, “Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together.  Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding.  Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016]), Ming’s claim to have standing as a parent is even stronger.”

The court also found the failure by Carlos and Marco to disclose the Florida divorce proceeding to the Family Court to be “another ground to vacate the adoption,” since an adoption petition requires the petitioner to disclose to the court whether the child is the subject of any other legal proceeding affecting his or her custody or status, and Ming had petitioned for joint custody of the child in the Florida proceeding. Carlos and Marco learned of that proceeding a few months after Carlos’s adoption petition was filed, while that petition was still pending before the Family Court, so they had a duty to bring it to the attention of that court.  Instead, they filed a supplemental affidavit claimed that there had been no change in the child’s circumstances “whatsoever” since the filing of the adoption petition.

Ming is represented by Nina E. Rumbold of Rumbold & Seidelman, LLP (Bronxville). Carlos and Marco are represented by Frederick J. Magovern of Magovern & Sclafani, Mineola.  There is no attorney appointed to represent the child’s interest, a point that Carlos and Marco raised in their appeal but as to which the Appellate Division declined to rule.  The court’s opinion does not report on the current status of Ming’s Florida divorce proceeding.  It is possible that Ming and Marco are still legally married, which perhaps explains why Carlos and Marco are not?

 

Former Texas Supreme Court Chief Justice Seeks Reversal of His Old Court’s Opinion

Posted on: September 25th, 2017 by Art Leonard No Comments

On June 30, the Texas Supreme Court issued a ruling claiming that the U.S. Supreme Court’s Obergefell marriage equality decision from June 2015 did not necessarily require state and local governments to treat same-sex and different-sex marriages the same for government employee benefits purposes. On September 15, asserting that his old court’s decision was clearly wrong, retired Texas Supreme Court Justice Wallace B. Jefferson and lawyers from his Austin firm, Alexander Dubose Jefferson & Townsend LLP, asked the U.S. Supreme Court to reverse the ruling.

Jefferson, an African-American Republican, was appointed to the court in 2001 by Governor Rick Perry, who then elevated him in 2004 to the Chief Justice position, where he served until retirement in October 2013. Justice Jefferson was the first African-American to serve on Texas’s highest court.  His law firm was retained by Houston Mayor Sylvester Turner to represent the City in petitioning the Supreme Court for review.

The case arose in 2013 when then-Mayor Annise Parker, an out lesbian and longtime LGBT rights activist, reacted to the Supreme Court’s decision to strike down the federal Defense of Marriage Act by asking her City Attorney whether the reasoning of that case would require the City of Houston to recognize same-sex marriages of City employees. Although Texas did not allow same-sex marriages then, some City employees had gone out of state to marry and were seeking health care benefits for their spouses under the City’s employee benefits plan.  Parker got the answer she was seeking and ordered an extension of benefits to City employees’ same-sex spouses.

Two local Republican activists, Jack Pidgeon and Larry Hicks, sued the City and Mayor Parker, seeking an injunction against extension of the benefits. They persuaded a state trial judge to issue a preliminary injunction, barring the benefits from going into effect pending the outcome of the litigation.  The court relied on the Texas constitutional and statutory bans on same-sex marriage, which had not yet been challenged in court as of that time.  The City appealed the preliminary injunction.

While the appeal was pending before the Texas Court of Appeals, the U.S. Supreme Court decided the Obergefell case, and the U.S. Court of Appeals for the 5th Circuit, which is based in Houston, promptly affirmed a 2014 marriage equality ruling by the federal district court in San Antonio, DeLeon v. Abbott, declaring unconstitutional the Texas same-sex marriage bans that had been the basis for the trial court’s injunction. Then the Texas Court of Appeals issued a ruling reversing the trial court’s preliminary injunction and instructing that court to decide the case consistent with the DeLeon decision.  Pidgeon and Hicks appealed that ruling to the Texas Supreme Court.

 

After extensively considering the matter, the Texas Supreme Court announced that it would deny review of the Court of Appeals ruling. This outraged Texas Republican leaders, including Governor Abbott, and the state Republican Party went to work encouraging people to bombard the court with communications urging it to reconsider and grant review, and then to reverse the court of appeals.  Perhaps it is not surprising, considering the very political nature of that court, made up entirely of Republican justices (since Texas has not had a Democratic governor since George W. Bush defeated Ann Richards in 1994), that the court succumbed to these demands, reconsidered, and granted review.

On June 26, 2017, the U.S. Supreme Court issued its decision in Pavan v. Smith, a challenge to the refusal by Arkansas officials to list both members of married lesbian couples on birth certificates when one of them gave birth to a child through donor insemination. In that ruling, the Supreme Court made abundantly clear that the Obergefell decision had effectively decided the Pavan case by holding that same-sex couples had the same constitutional rights regarding marriage as different sex couples, extending to the entire “constellation of rights” that went with marriage.  The Supreme Court did not even bother to hold oral argument in the Pavan case, simultaneously granting the petition to review an adverse decision by the Arkansas Supreme Court and issuing a brief memorandum opinion, from which three members of the Court dissented in an argumentative and disingenuous memorandum attributed to recently-appointed Justice Neil Gorsuch and signed by Clarence Thomas and Samuel Alito.  The Pavan opinion left no doubt that same-sex and different-sex married couples must be treated the same by government entities under the 14th Amendment.

But it was evidently not clear to a majority of the Texas Supreme Court, which just days later issued its ruling, reversing the court of appeals and sending the case back to the trial court in Houston, with instructions to give Pidgeon and Hicks an opportunity to try to convince the court that the City of Houston was still required to refuse recognition to the marriages of same-sex couples under its benefits plan, relying on the Texas constitutional and statutory ban that was declared unconstitutional by the 5th Circuit. A majority of the Texas Supreme Court clings to the idea that constitutional rulings by the lower federal courts are not binding on the Texas state courts.    The Texas court suggested that the U.S. Supreme Court’s opinion in Obergefell could be interpreted narrowly to address solely the question whether states must allow same-sex couples to marry and must recognize same-sex marriages contracted from out of state, but that the Obergefell opinion said nothing directly about what rights must be accorded to same-sex married couples.  This is, as Justice Jefferson’s Petition to the Supreme Court makes clear, blatantly untrue.  It treats the Pavan ruling as if Justice Gorsuch’s dissent was speaking for the Court.

Justice Jefferson’s Petition on behalf of Mayor Turner and the City of Houston makes mincemeat out of the work product of his former colleagues, quoting clear language from Obergefell which, among other things, specifically mentioned health insurance as an example of how the denial of marriage to same-sex couples violated their fundamental right to marry and to be treated equally with different-sex couples.

This case is just as clear as Pavan was, and is likely to receive the same treatment from the U.S. Supreme Court, unless that Court finds some procedural or jurisdictional reason to dismiss the Petition without deciding the question presented by the petitioners: “Did the Supreme Court of Texas correctly decide that Obergefell v. Hodges and Pavan v. Smith ‘did not hold that states must provide the same publicly funded benefits to all married persons,’ regardless of whether their marriages are same-sex or opposite-sex?” Some have suggested that because the Texas Supreme Court was ruling only on the validity of a preliminary injunction, the matter is not procedurally ripe for U.S. Supreme Court review, but any attempt to reinstate the preliminary injunction would directly violate the constitutional rights of Houston City employees in clear violation of the Obergefell ruling.

On a parallel track, Lambda Legal filed a federal district court lawsuit in Houston over the summer on behalf of some married LGBT City employees, seeking a declaratory judgment that they are entitled to the same benefits for their spouses that their straight colleagues get. If the Supreme Court does not grant Justice Jefferson’s Petition, it is likely that the matter can be resolved relatively quickly through Lambda’s case, since the City would eagerly comply with an order by the U.S. District Court to provide equal benefits.  This is, at heart, a dispute between the pro-LGBT Houston Democratic city government and the anti-LGBT Republican state government.

 

 

Texas Supreme Court Refuses to Dismiss Challenge to Spousal Benefits for Houston City Employees

Posted on: June 30th, 2017 by Art Leonard No Comments

In a clear misreading of the U.S. Supreme Court’s marriage equality ruling from 2015, Obergefell v. Hodges, especially as elucidated just days ago by that Court in Pavan v. Smith, the Texas Supreme Court unanimously refused on June 30 to dismiss a lawsuit by two disgruntled Houston taxpayers who argue that the city of Houston may not provide employee benefits for the same-sex spouses of its employees. The case is Pidgeon v. Turner, 2017 Tex. LEXIS 654.

Instead, while affirming a ruling by the Texas Court of Appeals that had reversed the preliminary injunction that a Texas trial court issued in 2014 against payment of the benefits, the Texas Supreme Court sent the case back to the trial court for it to decide whether the Obergefell decision obligates Houston to provide equal benefits to same-sex spouses of its employees, and also to consider the taxpayers’ argument that the city should be required to “claw back” the value of benefits that were paid prior to the Obergefell decision, on the theory that Texas’s refusal to recognize same-sex marriages contracted out-of-state was valid until the U.S. Supreme Court ruling was announced.

In Pavan v. Smith, the Arkansas Supreme Court had ruled that the Obergefell decision did not require the state to treat same-sex spouses the same as different-sex spouses for listing as a parent on the birth certificate of a child born to their spouse. Reversing that ruling, the U.S. Supreme Court said: “As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident…”

Thus, the Supreme Court made clear in Pavan, contrary to the Arkansas Supreme Court’s unduly narrow reading of Obergefell, that same-sex couples are entitled to the same rights and benefits of marriage as different-sex couples. In listing some of the rights and benefits of marriage that same-sex couples had wrongly been denied, the Obergefell court specifically mentioned health insurance, an employee benefit that is at issue in the Texas case.  Thus, to claim that the Obergefell opinion fails to deal with this issue explicitly is totally disingenuous.

And yet, Justice Jeffrey S. Boyd wrote for the Texas Supreme Court in Pidgeon v. Turner, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and – unlike the Fifth Circuit in DeLeon – it did not hold that the Texas DOMAs are unconstitutional.” “DeLeon” refers to the Texas marriage equality decision that was issued by the U.S. Court of Appeals for the 5th Circuit a few days after the Obergefell decision, holding that the Texas ban on same-sex marriage was unconstitutional in light of Obergefell.

Instead of cutting through procedural complications and saving everybody involved lots of wasted time and money through prolonged litigation, the Texas court has now repeated the error of the Arkansas Supreme Court by insisting that the Obergefell ruling does not clearly require “the same” rights, benefits and responsibilities, and, incredibly, cited in support of this point the Supreme Court’s decision on June 26 to grant review of a Colorado Court of Appeals ruling, Masterpiece Cakeshop v. Colorado Human Rights Commission, which concerns a totally different question: whether a baker has a 1st Amendment right to discriminate against a same-sex couple by refusing an order for a wedding cake in violation of a state anti-discrimination law.  The Supreme Court did not address in Obergefell the question of reconciling a potential clash between anti-discrimination laws and the rights of free exercise of religion and freedom of speech enjoyed by non-governmental entities and individuals.  But the Court most emphatically did address the issue that governmental actors, bound by the 14th Amendment, must accord the same rights to all married couples, whether same-sex or different-sex, and it reiterated that point in Pavan.

The Texas case dates back to 2013, when Houston’s Mayor Annise Parker, an out lesbian, reacted to the Supreme Court’s Windsor decision by extending benefits to the same-sex spouses of Houston city employees who had gone out of state to get married. At the time, Texas had both a state Defense of Marriage Act and a similar constitutional amendment, and Houston had a charter provision limiting municipal employee benefits to legal spouses and children of employees.  Relying on an advisory opinion from the city attorney, Parker concluded that after Windsor it was unconstitutional to refuse to recognize those out-of-state marriages.

Jack Pidgeon and Larry Hicks, Houston taxpayers who identified themselves as devout Christians who did not want their tax money going to subsidize same-sex marriages, filed a lawsuit challenging the benefits extension in December 2013, and refiled in October 2014 after the first case was dismissed for “want of prosecution” while the parties were wrangling about the city’s attempt to remove the case to federal court. Pidgeon and Hicks claimed, based on state and city law, that the benefits extension was “expending significant public funds on an illegal activity.”  They persuaded a local trial judge to issue a preliminary injunction against continued payment of the benefits while the case was pending, and the city appealed.

The Texas Court of Appeals sat on the appeal while marriage equality litigation proceeded both in the federal courts in Texas – the DeLeon v. Perry case – and nationally. Shortly after the Supreme Court ruled in Obergefell on June 26, 2015, the 5th Circuit, affirming a federal district court ruling, held in DeLeon that the Texas laws banning same-sex marriage were unconstitutional.

Then the Texas Court of Appeals reversed the trial court’s preliminary injunction in the Pidgeon case and sent the case back to the trial court with instructions to decide the case “consistent with DeLeon.” Pidgeon and Hicks sought to appeal this ruling to the Texas Supreme Court, but were initially turned down by that court.  Then the top Republican elected officials in the state – the governor, lieutenant governor, and attorney general – and a bunch of other non-parties filed papers with the Supreme Court urging it to change its mind and allow the appeal, which the court eventually agreed to do.

In its June 30 ruling, the court buried itself in procedural complications. Based on its incorrect conclusion that the Obergefell decision, as amplified by the Pavan ruling, does not decide the merits of this case, and further giving credence to the plaintiffs’ argument that Obergefell cannot be construed to have any retroactive effect because “the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on ‘new insights and societal understandings,”  the court opined that Pidgeon and Hicks should have an opportunity to “develop” their argument before the trial court.  This contention on retroactivity is not the view that has been taken by other courts, including some that have retroactively applied Obergefell to find that cohabiting same-sex couples in states that still have a common law marriage doctrine can be held to have been legally married prior to that ruling.  Indeed, the federal government even gave Windsor retroactive application, allowing same-sex couples to file for tax refunds for earlier years on the basis that the Internal Revenue Service’s refusal to recognize their state-law marriages under DOMA had been unconstitutional.

The Texas Supreme Court agreed with Pidgeon that the Texas Court of Appeals should not have directed the trial court to rule “consistent with DeLeon” because, technically, the state trial courts are not bound by constitutional rulings of the federal courts of appeals, only by U.S. Supreme Court rulings on questions of federal law. DeLeon could be a “persuasive” precedent, but not a “binding” precedent.  This merits a big “so what?”  After all, the real question in this case is whether Obergefell requires that married same-sex couples are entitled to the “same benefits” as different-sex couples from their municipal employer, and the answer to that could not be more clear, especially after Pavan v. Smith.  (Indeed, Justice Gorsuch’s dissenting opinion in Pavan repeats the same mistaken assertion — that Obergefell does not clearly require the “same” rights and benefits which the Court responds to by quoting from Obergefell to the opposite effect – and is just as disingenuous as Justice Boyd’s decision for the Texas court.)

Now the case goes back to the trial court in Houston, where the outcome should be dictated by Pavan v. Smith and Obergefell and the court should dismiss this case. But, since this is taking place in Texas, where contempt for federal law is openly expressed by public officials, who knows how it will turn out?

Same-Sex Marriage Looms for Taiwan after Constitutional Court Ruling

Posted on: May 24th, 2017 by Art Leonard No Comments

The Constitutional Court of the Republic of China (Taiwan) voted overwhelmingly that same-sex couples are entitled to marry, and that anti-gay discrimination violates the Republic’s Constitution. The May 24 ruling was greeted with relative equanimity by legislative leaders, who were ordered by the court to approve legislation to implement this decision by May 24, 2019.  Otherwise, the court said, the decision would go into effect automatically, and same-sex couples would be entitled to marry.  Only two justices dissented, and one abstained.  Press reports we saw differed as to whether the court has 14 or 15 members.  Either way, the majority was overwhelming.

This was the first ruling by an Asian high court to accept marriage equality as a constitutional right, although there might be political and ideological arguments about its significance in relation to the rest of Asia due to the unusual status of Taiwan, which the Peoples’ Republic of China (Mainland China) considers to be part of its country that is just temporarily self-governing and most countries do not recognize it as an independent nation. However, there is no disputing that when this ruling goes into effect, Taiwan will be the first place where same-sex marriages can be performed in Asia with the imprimatur of legally-recognized status.

The opinion, formally called Interpretation No. 748, was released only in Chinese, but the court simultaneously issued an English-language press release summarizing the ruling in detail.

The court was responding to petitions from LGBT rights activist Chia-Wei Chi and the Taipei City Government, seeking a definitive ruling on whether the freedom to marry, protected by Article 22 of the Constitution, was limited by the provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code, which defines marriage as exclusively a different-sex institution. The court also had to confront the question whether excluding same-sex couples from marriage violated the “people’s right to equality” guaranteed in Article 7 of the constitution.

The court found that both constitutional guarantees – the right to marry and the right to equality – were violated by the ban on same-sex marriage.

The court observed that the petitioner, Chia-Wei Chi, has been waging a campaign for same-sex marriage for more than thirty years. Although some progress had been made in getting the legislature to consider the issue, after more than ten years of bills being introduced and debated, nothing has been brought to a vote.  The court expressed concern about the frustration induced by this protracted legislative process.  “The representative body is to enact or revise the relevant laws in due time,” said the court.  “Nevertheless, the timetable for such legislative solution is hardly predictable now and yet these petitions involve the protection of people’s fundamental rights.  It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of peoples’ constitutional rights and the free democratic constitutional order.”

The court said that the freedom to marry extends both to deciding whether to marry and whom to marry. “Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”  The court insisted that allowing same-sex couples to marry “will not affect the application of the Marriage Chapter to the union of two persons of the opposite sex” and that it would not “alter the social order established upon the existing opposite-sex marriage.”  The court said that the failure of current law to allow same-sex couples to marry “is obviously a gross legislative flaw” and that the current provisions “are incompatible with the spirit and meaning of the freedom of marriage as protected by Article 22 of the Constitution.”

Moving to the equality issue, the court addressed the problem that Article 7, unlike the United States’ equal protection clause, explicitly requires equality “irrespective of sex, religion, class, or party affiliation,” but the court did not see this list as a barrier to protecting equality for gay people (or, it added, people with disabilities). They said that the classifications listed in Article 7 “are only exemplified, neither enumerated nor exhausted.”  In other words, this is a list of “including but not limited to” classifications, and the court saw sexual orientation as a classification governed by the same equality principle.

“Sexual orientation is an immutable characteristic that is resistant to change,” wrote the court. “The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment.  Major medical associations have stated that homosexuality is not a disease.  In our country, homosexuals were once denied by social tradition and custom in the past.  As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination.  Besides, homosexuals, because of the demographic structure, have been a discrete and insular minority in the society.  Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process.  Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.”  This appears to be the equivalent of the U.S. legal concept of a “suspect classification,” one deemed illegitimate in the absence of good justification.

The court rejected any idea that reproductive capacity has anything to do with the freedom to marry, pointing out that different-sex couples may marry even if they are incapable of procreation or unwilling to engage in procreative activities. “Disallowing two persons of the same sex to marry, for the sake of their inability to reproduce, is a different treatment having no apparent rational basis,” wrote the court.  It also rejected the kind of moralistic arguments that are raised by marriage equality opponents, concluding, “Disallowing two persons of the same sex to marry, for the sake of safeguarding basic ethical orders, is a different treatment, also obviously having no rational basis.  Such different treatment is incompatible with the spirit and meaning of the right to equality as protected by Article 7 of the Constitution.”

While the court gave the government two years to make the necessary legislative adjustments to carry out this ruling, it warned that failure to do so would not prevent the decision from going into effect. Upon the two-year anniversary, if not sooner, same-sex couples will be entitled to apply for marriage registration to the usual authorities and to “be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.”

Without being able to read and understand the original Chinese text, it is hard to assess whether the ruling leaves much leeway to the legislature to consider alternatives to true marriage equality. In Europe, for example, the Court of Human Rights has been willing to allow countries to adopt registered partnerships or civil unions rather than extending explicit marriage rights to same-sex couples, although that is likely to change as the number of countries having voluntarily legislated for marriage equality has grown to encompass several of the largest countries who are parties to the European Convention on Human Rights.  However, the clear import of the English summary is that same-sex marriages would have to include all the usual legal rights accompanying opposite-sex marriages to meet the equality test the court embraced, in a more explicit way than the U.S. Supreme Court did in Obergefell v. Hodges in 2015.

The local English-language press in Taiwan reported that none of the major parties responded with opposition to the ruling, which was quickly embraced by Premier Lin Chuan, who “ordered Chen Mei-ling, secretary-general of the Executive Yuan, to coordinate the Ministry of Justice, Ministry of Interior and other branches to draft the revision proposal,” according to Cabinet spokesman Hsu Kuo-yung. The cabinet will approve a proposal to submit to the legislature. The two options that seem available are a bill amending existing laws to accommodate same-sex marriages, or a separate same-sex marriage bill.  In terms of timing, it seems possible that marriage equality will go into effect sooner than two years.  Although the current legislative session ends by May 31, the legislature will reconvene for some special sessions during July and August and will resume its regular session thereafter.

No, Donald Trump Can’t Repeal Marriage Equality

Posted on: November 11th, 2016 by Art Leonard No Comments

Some panicky LGBT people have been calling the LGBT legal and political organizations to ask whether they should accelerate their wedding plans to marry before Donald Trump takes office, and many are expressing concern that the marriage equality victory, won in the Supreme Court on June 26, 2015, after so much hard work and heartache, is now in danger of being reversed, and that their own same-sex marriages might become invalid.

 

Although nobody can predict the future with absolute certainty, it is highly unlikely that the marriage equality decision will be reversed, and it is an absolute certainty that Trump as president will not have the authority to reverse it on his own or even with the connivance of Congress.  Furthermore, there is good legal authority to conclude that a valid marriage, once contracted, can only be ended by a divorce or by the death of one of the spouses, not by executive fiat or legislative action.

 

The Supreme Court ruled in Obergefell v. Hodges, voting 5-4, that same-sex couples have a right to marry as part of the liberty guaranteed under the 14th Amendment of the Constitution, bolstered by the constitutional guarantee of equal protection of the laws.  A ruling on a constitutional right by the U.S. Supreme Court can only be changed in one of two ways: a constitutional amendment, or an overruling by the Supreme Court in a later case.  Once a case is decided and the Court sends its mandate out to the lower court from which the case was appealed, the losing party can file a petition seeking a rehearing, but such a petition has to be filed quickly and the Court almost always denies them.  We are now 18 months out from the Obergefell ruling.  It is final, done, no longer open to reconsideration by the Court.  And the President has no power to “repeal” or “overrule” it by himself.  Neither does Congress.

 

During the campaign, Donald Trump did not threaten to try to repeal or reverse the ruling on his own. He said he thought the question of marriage should have been left to the states, so he disagreed with the Court’s decision, and he said he would consider appointing new justices to the Supreme Court who would vote to overrule it.

 

Trump can’t appoint a new justice to the Court until there is a vacancy.  There is one now, due to the death of Justice Antonin Scalia last winter and the refusal by the Senate to consider President Obama’s nomination of Judge Merrick Garland of the D.C. Circuit Court of Appeals to replace him.  But Justice Scalia dissented in the Obergefell case, so replacing him with a conservative judge would not change the outcome.  The five-member majority in Obergefell – Justices Anthony Kennedy (who wrote the Court’s opinion), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – are all still there.  And there is no case now pending before the Court that would provide a vehicle for overruling Obergefell v. Hodges.  And any marriage equality opponent thinking strategically would be waiting until one of those majority justices leaves before attempting to launch a legal challenge.

 

What about the constitutional amendment route?  That is not going to happen.  Trump’s election doesn’t affect that at all, since the President plays no role in amending the Constitution.  Article V makes it so difficult to pass an amendment that our 240-year-old Constitution has picked up only 27 amendments, ten of them being the Bill of Rights adopted in 1791, and the most recent one, adopted in 1992, a quarter century ago, requiring that any pay raise that Congress votes for itself cannot go into effect until after the next House of Representatives election.  In order to propose a new amendment, at least 2/3 of each house of Congress has to approve it, and then it has to be ratified by at least ¾ of the states.  Alternatively, 2/3 of the states can apply to Congress to call a Constitutional Convention for the purpose of proposing amendments, but any amendments proposed would still require ratification by ¾ of the states.

 

By the time the Supreme Court decided Obergefell in 2015, popular opinion polls showed that a clear majority of the public supported marriage equality, and that margin of support only increases over time, as polling in the early marriage equality states such as Massachusetts has shown.  Amendments to the Constitution can only pass with overwhelming public support.  There is no overwhelming public support to abolish same-sex marriage.  That effort is now the province mainly of far-right-wing cranks and religious fanatics.  And as long as the Democrats hold more than 1/3 of the seats in the Senate, it is highly unlikely that a Marriage Amendment would get the necessary 2/3 vote in that chamber.  Indeed, the Democrats hold enough seats in that House, in combination with some more moderate Republicans, to block it in that chamber as well.  So, marriage equality opponents, forget about passing a Marriage Amendment.

 

The alternative, of course, is for opponents to set up a lawsuit raising the question and to get it to the Supreme Court after Trump (or a successor) has had an opportunity to appoint somebody to replace a member of the Obergefell majority.   That majority includes the three oldest members of the Court, Ginsburg, Kennedy and Breyer, so it is possible Trump will have that opportunity before the end of a four-year term.   Even then, however, an overruling is highly unlikely.

 

First, a case presenting the question has to come to the Court, and the issue of marriage equality has to be central to that case.  The Court may be presented over the next few years with cases that involving marriage equality in some way.  They already have a petition to review the Colorado marriage cake case, presenting the claim that a baker’s 1st Amendment rights are violated by fining him under a state anti-discrimination law for refusing to make a wedding cake for a gay couple, but I’m not sure such a case, even if the Supreme Court decided to hear it, would provide a vehicle for overruling Obergefell.  More likely, a challenge would come from some state deciding to provoke a lawsuit by denying equal treatment for some benefit to a married same-sex couples. But it’s not enough just to petition the Court, because the Court has complete discretion about whether to accept a case for review, and it takes four Justices to grant such a petition.  By the time they get such a petition AFTER a change of membership has reduced the Obergefell majority, perhaps several years from now, same-sex marriage will be such a settled issue, with so many tens of thousands of same-sex couples married throughout the country, that it seems highly unlikely that even four members of the Court would be motivated to reopen the issue.

 

Furthermore, the Court normally embraces a concept called “stare decisis,” a Latin term meaning standing by what has been decided.  They are very reluctant to overrule themselves, especially when a decision has been embraced by society and incorporated into the everyday lives of many people.  When they do overrule a prior decision, it is usually in the direction of realizing that the old decision wrongly denied a constitutional claim or adopted an incorrect and harmful interpretation of a statute.   The Court resists attempts to get it to cut back rights that it previously recognized.

 

In the course of litigating about LGBT rights, the Court has twice overruled past decisions.  In 2003, the Court overruled Bowers v. Hardwick (1986) when it decided that the constitution protected people engaged in consensual gay sex from criminal prosecution, in Lawrence v. Texas (2003).  Indeed, the Court said that Bowers was wrong when it was decided.  The second time, it overruled Baker v. Nelson (1972) when it held that same-sex couples have a right to marry.  Baker, however, was a one-sentence decision stating that the issue of same-sex marriage did not present a “substantial federal question.”  In both cases, overruling involved a determination that the prior case had wrongly failed to recognize a constitutional right, so the new decision marked an expansion of liberty and equality. The Court is unlikely to overrule a case in order to contract liberty or deny equality.

 

As to the validity of existing same-sex marriages, when Californians passed Proposition 8 in 2008 after several thousand same-sex couples had married in that state, the California Supreme Court ruled that although Prop 8 was validly enacted, it could not retroactively “un-marry” all those couples.  Their marriages would continue to be valid and recognized by the state.  It is unlikely that the U.S. Supreme Court would take a different position regarding existing same-sex marriages if it were to overrule Obergefell.  That would raise daunting due process and equal protection questions.

 

Trump’s taking office does not present a direct and present threat to marriage equality.  It does present many other threats, including the loss of pro-LGBT executive orders and the likely abandonment by federal agencies of the position that sex discrimination laws protect LGBT people from discrimination because of their sexual orientation or gender identity.  But those are other issues….