A panel of three judges of the U.S. Court of Appeals for the 10th Circuit in Denver heard oral arguments on Thursday, April 10, in Utah’s appeal of a December ruling by U.S. District Judge Robert Shelby that the state’s constitutional and statutory ban on same-sex marriages is unconstitutional. Because both Judge Shelby and a 10th Circuit panel had refused to stay that ruling pending appeal, more than 1,000 same-sex couples married in Utah before the Supreme Court granted a stay on January 6. As usual at such hearings, the court did not indicate directly how it would rule, and an opinion is likely months away, not least because this panel will reconvene on April 17 to hear Oklahoma’s appeal of a similar district court ruling and might decide to combine the two cases in one opinion.
However, the questions and answesr and dialogue between the judges and the lawyers provided insights into the thinking of the judges about how the case might be decided. Perhaps most surprising to those in the courtroom or listening to the recording that the court quickly posted to its website, the court might not even decide the case on the merits, as judges raised questions about “standing” more than once, and one judge suggested that perhaps the case should not have been decided by Judge Shelby on a summary judgment motion because of disputed facts that might be relevant to a final decision.
The issue of standing occupied center stage last June when the Supreme Court ruled in Hollingsworth v. Perry that the federal appeals courts lacked jurisdiction to rule on California’s Proposition 8 same-sex marriage ban because the supporters of that ban, who had appealed the district court’s decision striking it down, lacked “standing” to do so. “Standing” is a principle of federal constitutional law that requires the party who files a lawsuit or who seeks to appeal a trial court decision to have a personal stake in the outcome of the case, not merely a theoretical or generalized interest in how the case would be decided. For example, in right-to-marry cases, the plaintiffs are couples whose right to marry is being denied by the state, so they clearly have standing to file suit against a public official, such as a county clerk, who refuses to issue them a marriage license. Courts are divided, however, over whether they can file suit against a state governor or attorney general, as neither of those officials plays a direct role in issuing marriage licenses or administering the state’s marriage laws. This turns into a “standing” issue on appeal of a trial decision in favor of plaintiffs, when the standing issue shifts to the defendants who are appealing. A county clerk clearly has standing to appeal, since issuing marriage licenses is a function of their job, and county clerks are the only appellants in the Virginia marriage equality case now pending in the 4th Circuit in Richmond. But in the Utah case, the appellants are the governor and attorney general. Although the Salt Lake County clerk, who denied licenses to the plaintiffs, was a defendant in the trial court, she did not join in the appeal, and the attorney who appeared for the state, Gene Schaerr, presented himself as representing Governor Gary Herbert and Attorney General Sean Reyes.
This led the court to pose the “standing” question to both sides. If neither Governor Herbert nor Attorney General Reyes has personal responsibility for the enforcement of the marriage laws, is the case properly before the court of appeals? The question here is different from that posed in Hollingsworth, because in that case the appellants were private parties, not government officials, who clearly had no personal stake in the outcome in the sense that their personal lives would not be affected by the result. Even then, the Supreme Court split 5-4 over the standing question, the dissenters arguing that the California Supreme Court’s advisory opinion stating that initiative proponents could represent the state in defending their initiative provided a sufficient basis for standing. In this Utah case, the question is “closer” since the governor and attorney general have taken oaths binding them to defend the state’s constitution and faithfully enforce its laws, and they would have a similar responsibility were Judge Shelby’s decision upheld. Neither party in this case had raised standing as an issue, and Peggy Tomsic, the plaintiff’s lawyer, agreed with Schaerr in arguing to the court that there was no problem with standing. Among other things, she appointed out that ultimately the governor and attorney general did have supervisory authority over the county clerks and could direct them regarding their role in issuing or denying licenses. Similarly, the governor and attorney general would likely play a role in supervising or directing agencies confronted with the question whether to recognize same-sex marriages from other jurisdictions, which is also an issue in this case. Indeed, it seems unlikely that the court would shy away from a ruling on the merits based solely on “standing.” Surely, the chief executive and chief law enforcement officer of a state have a direct interest in appealing a trial court’s ruling that state constitutional and statutory provisions violate the federal constitution.
The state itself is not a defendant in this case, because the federal constitution has been interpreted by the Supreme Court as barring citizens from suing their own state government in federal court. Thus we have the “legal fiction” of suing state officials in their “official capacity” in order to challenge the constitutionality of a state law. Due to standing concerns, the federal courts insist that particular officials can only be sued if there is a close connection between the law at issue and their official duties. Some federal courts have dismissed marriage lawsuits that were brought against governors and attorney generals when the plaintiffs did not also sue the state official with direct authority to administer the marriage laws or a county clerk who had actually denied the plaintiffs a marriage license, out of this concern for “standing.” For example, in Pennsylvania, Governor Tom Corbett was removed as a defendant in the pending marriage equality cases for this reason, and in Louisiana a federal court dismissed a marriage equality case where the only individual sued was the attorney general. The Supreme Court raised a “standing” concern in the DOMA case (U.S. v. Windsor) as well, asking whether the United States, as represented by the Solicitor General, had “standing” to appeal a lower court decision with which the government agreed, for lack of any actual “case or controversy.” Ultimately the Supreme Court found that the government has a real interest in having a binding ruling by the Supreme Court when a lower court declares a federal statute unconstitutional. The same logic should hold in this case. Even if Herbert and Reyes were not necessary defendants at the trial court level, they would surely have a direct interest in their official capacities to appeal a ruling striking down state laws.
The other suggestion floated by the court that could defer a ruling on the merits was that Judge Shelby should not have ruled on the motion for summary judgment because a trial was necessary in order to determine facts that were in dispute. Judges are supposed to grant summary judgment motions only when material facts are undisputed and there is no need for an evidentiary hearing to resolve factual disputes. At least one 10th Circuit judge questioned whether the plaintiffs and defendants actually agreed about all the facts necessary to decide this case. Interestingly, the recent marriage equality ruling from Michigan followed the first trial on the subject since last June. Michigan District Judge Bernard Friedman had denied summary judgment motions last fall, having concluded that there were facts in dispute about the state’s justifications for banning same-sex marriage that would have to be resolved if the case was being decided using the “rational basis” test, and the judge eventually ruled on the merits only after the trial had been concluded. The hearing was focused on expert testimony from both sides about the potential impact of allowing same-sex marriages on child-rearing results, and the judge concluded in his opinion that the state’s witnesses on the issue were “unbelievable.” If the 10th Circuit panel finds that there remain disputed issues of material fact, it could send the case back to Judge Shelby with directions to hold a trial on the disputed points.
However, it seems unlikely that the court will conclude that this is necessary, when all but one of the marriage equality rulings that have been issued since the Windsor decision last June have come from summary judgment motions, with only the Michigan case following a trial. Numerous federal judges have taken the position that this issue can be decided as a question of law based on undisputed facts or, perhaps more accurately, based on a finding that even if the state is correct about its factual assertions, they don’t justify denying the right to marry to same-sex couples. While Judge Friedman’s finding that expert testimony presented by Michigan was “unbelievable” is not binding on the 10th Circuit, it seems to have carried significant weight with Utah’s attorney, Gene Schaerr, who sent a letter to the court earlier in the week noting that his brief had cited the so-called Regnerus study but that he was not relying on it to prove that parenting by same-sex couples is inferior to parenting by different-sex couples.
As to the merits of the case, to the best one might conclude from hearing the argument, it seemed unlikely that there would be a unanimous decision one way or the other. Judge Carlos Lucero, a veteran of the court who was appointed by President Bill Clinton, clearly indicated by his questioning and comments that he most likely supported the plaintiffs’ position, while Judge Paul J. Kelly, Jr., who was appointed by President George W. Bush, seemed more disposed towards the state’s position, although he posed many fewer questions making it harder to discern his views. The tie-breaker may end up being another Bush appointee, Judge Jerome A. Holmes, who questioned both sides quite sharply, making it difficult to predict where he will come to rest.
Clearly, all the judges seemed to agree that the threshold question of the level of judicial scrutiny would likely determine the outcome of the case. In 2008, the 10th Circuit ruled in Price-Cornelison v. Brooks, 524 F.3d 1103 (2008), that a local law enforcement official had no rational basis for refusing to enforce an order of protection obtained by a lesbian and, in passing, observed that heightened scrutiny would not apply because the case did not involved a “protected class” under the Equal Protection Clause. Based on that, this 10th Circuit panel is bound to apply the rational basis test, the lowest level of judicial scrutiny, to sexual orientation discrimination cases, unless subsequent legal developments mandate a higher standard or this case is viewed as involving something other than just a sexual orientation discrimination claim. Thus, the question whether the Supreme Court’s decision last year in U.S. v. Windsor established a higher standard of review that would apply to this case was a central issue in the argument and may determine the outcome, since the judges might agree, as at least one suggested during the argument, that the Utah ban would survive the traditional rational basis test, which is very deferential to the state.
It was frustrating to listen to the questions and answers on this point, because they failed to come to grips with what Justice Anthony Kennedy wrote and did in his opinion for the Supreme Court in the Windsor case. Kennedy did not state that Windsor involved a fundamental right to marry or a suspect classification based on sexual orientation. Rather, he treated it as a case in which Congress discriminated against same-sex couples by excluding them from the recognition of their state-law marriages with the result that they were deprived of numerous federal rights and benefits. It was not just a sexual orientation discrimination case. Rather, it was a case of intentional unequal treatment of a defined portion of the population, having direct and wide-ranging adverse effects, and the Court concluded that none of the arguments mounted in favor of Congress’s policy decision were sufficient to justify the magnitude of the deprivation. As in his prior gay rights opinions, Romer v. Evans and Lawrence v. Texas, Kennedy avoided invoking the categories and classifications that the Court had used in prior cases involving race or sex discrimination, instead applying a mode of judicial review particularly tailored to the issues before the Court.
Lower federal courts have difficulty applying such precedents, because, being bound by Supreme Court opinions, they are looking for clear direction about the application of existing doctrinal categories, and they are not getting such clear direction because Kennedy did not speak in terms of these categories. However, this observer suggests that Windsor bears directly on the question before the 10th Circuit in this case, because the Court, in effect, applied something like heightened scrutiny in case where Congress was discriminating against same-sex couples regarding an important social status and set of rights and benefits. Kennedy referred disparagingly to “second tier marriages” that enjoyed state but not federal recognition, and wrote about the specific stigma and burdens imposed upon children whose parents’ marriages were not recognized. He emphasized the failure of the federal government to recognize the “dignity” that legal state marriages conferred on same-sex couples. In this sense, Windsor is very much like Romer, the Colorado Amendment 2 case from 1996. A state constitutional amendment or statute that discriminates on its face against a distinct group of people must have a legitimate policy justification, and that justification must have some logical connection to the discrimination at issue.
Thus, if a state’s concern is that the “best” setting for raising a child is a family headed by a husband and a wife, it would have to show not just that this is a legitimate policy concern, but also that banning same-sex couples from marrying is a way of effectuating that policy. Schaerr was reduced to arguing that letting same-sex couples marry would send subtle messages to boys that would somehow undermine their masculinity, leading them to become bachelor outlaws. (This is a paraphrase, but not off the mark.) The state offers no factual support for this argument, merely hypothesis, and admits that the phenomenon of same-sex marriage is too new for there to be any proof that it will have this effect, as the right to marry in the United States dates back only to May 2004 when the Massachusetts Goodrich decision went into effect, and same-sex marriages in Canada and the Netherlands only began a year or two earlier. If the right to marry is a recognized constitutional right, Tomsic argued, it could not be trumped by such unproven speculation. The state should have to show that allowing same-sex couples to marry would have some sort of deleterious social effect. This certainly hasn’t manifested itself in the near-decade since same-sex couples began marrying in Massachusetts, and so far every federal judge confronting this argument since the Windsor decision has rejected it. Tomsic pointed out that the same sort of justifications were voiced by members of Congress in 1996 when they voted for DOMA, and the Supreme Court found them insufficient to justify withholding federal recognition from same-sex marriages.
Justice Antonin Scalia, in his dissenting opinion in the DOMA case, saw Kennedy’s approach in Windsor as leading ineluctably to a constitutional right for same-sex couples to marry. Chief Justice John Roberts disagreed, insisting that the case was a “federalism” case that respected the right of states to decide who could marry. But Kennedy was clear in writing that the state’s right to determine who could marry was subject to constitutional requirements of equal protection and due process, and that, in line with the reasoning in Windsor, the state would need good justifications to exclude same-sex couples from this right. Furthermore, Kennedy made clear that he was basing his opinion entirely on the 5th Amendment’s Due Process Clause and its equal protection component, and not on the concept of federalism as such, although federalism concerns clearly entered into the equation.
So far, every federal trial judge who has ruled in a marriage equality case has agreed (with Scalia) that the reasoning of Kennedy’s opinion for the Court requires striking down state bans on same-sex marriage. If the 10th Circuit ends up being divided on this question, it will be the first time since last June that any federal judge has not reached that conclusion after more than half a dozen trial court rulings.
The one certain thing about the 10th Circuit’s opinion, however, is that it will not mark the end of the case. If there is no standing for an appeal, Judge Shelby’s decision would stand as unappealed, unless Governor Herbert could persuade the full 10th Circuit to take up and reverse the panel’s decision, or even take the issue directly to the Supreme Court. The Supreme Court’s stay of Judge Shelby’s order was issued pending a ruling by the 10th Circuit, so by its terms it would expire upon the 10th Circuit issuing a decision, and the state would have to go back to get it renewed. If the case is sent back to Judge Shelby for trial, this litigation may become moot when the Supreme Court eventually rules on a case from another circuit. If the 10th Circuit rules on the merits, the losing party will certainly either seek review from an expanded panel of judges (en banc review) or petition the Supreme Court for review. So the 10th Circuit judges know that their ruling, while momentous in the short term, will likely be about as significant in the long run as the 2nd Circuit’s ruling in U.S. v. Windsor — a footnote to history.