The day after the U.S. Supreme Court refused to review pro-marriage equality rulings by three federal courts of appeals in four cases directly affecting the marriage bans in five states, another circuit was heard from. A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled on October 7 in favor of marriage equality in cases from Nevada and Idaho. Writing for the panel, Circuit Judge Stephen Reinhardt, who was appointed to the court by Jimmy Carter, found that the marriage bans failed to meet the 9th Circuit’s heightened scrutiny standard. Later on October 7th the court exercised its discretion to issue its mandate to the two district courts, declaring its decision immediately effective. Latta v. Otter, 2014 Westlaw 4977682.
Nevada officials quickly fell into line. Governor Brian Sandoval had concluded earlier in the year that the Nevada marriage ban was no longer defensible, so the state did not defend its law before the Court of Appeals, leaving it to an intervening anti-marriage-equality group called “Coalition for the Protection of Marriage” to mount the defense. That group signed up Idaho’s attorney to represent them. In light of this, Sandoval was ready to have the state comply with the order, with marriages starting right away. The Coalition for the Protection of Marriage undoubtedly lacks standing to file its own appeal, in light of the state government’s decision not to do so and the lack of any Nevada law authorizing private groups to represent the state in federal litigation. Any argument to the contrary by the Coalition would undoubtedly meet defeat because of the way the Supreme Court handled the Proposition 8 case in 2013, finding that proponents of the California anti-marriage initiative lacked standing to appeal a lower court ruling to the 9th Circuit or the Supreme Court.
Idaho was a different story, however, as Governor Butch Otter authorized attorney Gene Schaerr, a Washington-based Supreme Court litigator, to file an emergency application for a stay pending appeal with the 9th Circuit and with the Supreme Court. Otter’s Supreme Court application, filed on Wednesday morning, October 8, was addressed to Justice Anthony Kennedy, who receives such petitions from the 9th Circuit. Kennedy quickly granted a temporary stay, giving the plaintiffs until 5 pm on October 9 to respond, and he was expected to refer the application to the full court. Schaerr’s application said that Idaho would be filing a petition for certiorari, asking the Court to address two questions: whether sexual orientation discrimination is subject to heightened scrutiny, and whether bans on same-sex marriage are actually a form of sexual orientation discrimination. Schaerr suggested in his application that the Court could address both of these questions without rendering a final decision on whether same-sex couples have a right to marry, and if the Court found that the 9th Circuit panel erred as to either one, it could send the case back to the 9th Circuit for reconsideration. This would kick the can down the road substantially, putting off a final decision in Idaho for a year or more.
Because the 9th Circuit had consolidated the two cases for decision, there was a single mandate, and Justice Kennedy’s Order referenced the docket numbers of both cases, so technically the mandate was stayed for both Nevada and Idaho, but as a practical matter Nevada was not planning to appeal, so the stay did not interfere with marriages in Nevada. [Later in the day, responding to a request for clarification by Lambda Legal, which represents the Nevada plaintiffs, Kennedy issued a revised order, staying the 9th Circuit mandate ONLY as it applies to Idaho. No stay for Nevada, so no interference with implementation of the decision in Nevada.]
The Supreme Court may respond quickly to this application, since it dismissed seven certiorari petitions just days ago, lifting stays in four very similar cases. The most widespread interpretation of the Supreme Court’s unexplained dismissals was that the four members of the Court most opposed to same-sex marriage would not hear the cases for fear that Justice Kennedy would join with other marriage-equality supporters to establish a nationwide precedent, and that the members who favored marriage equality saw no urgency to address the issue as long as the courts of appeals were ruling in favor of marriage equality. On that reading, it seems likely that the Court would deny the stay unless a majority of the Justices are taken with Schaerr’s argument that the Court should address the doctrinal circuit court splits before allowing marriage equality to spread further. It takes a majority vote to grant a stay.
“We hold,” wrote Reinhardt for the 9th Circuit panel, “that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.”
SmithKline v. Abbott Laboratories is a case decided by the 9th Circuit on January 21 of this year, holding that a person could not be struck from a jury list just because they are lesbian or gay. In that opinion, the court of appeals concluded that the Supreme Court’s 2013 decision striking down Section 3 of the Defense of Marriage Act had effectively applied heightened scrutiny by placing the burden on the government to justify unequal treatment of same-sex marriages under DOMA. Supreme Court precedents provide that if a particular basis for discrimination requires heightened scrutiny, then it can’t be used to strike somebody from a jury list without an individualized showing that the person can render impartial jury service in the particular case.
Reinhardt found that Nevada and Idaho had failed to meet this test. Although his analysis followed along what are now very familiar lines from the prior court of appeals opinions, one footnote jumped out as particularly quotable, referring to Governor Otter’s argument that same-sex marriage would contribute to a “shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.” Commented Reinhardt: “He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.” Some wit!
Because he was applying the heightened scrutiny test, Judge Reinhardt did not opine directly as to whether the marriage bans lacked a rational basis. About the closest he came was to say that “defendants have failed to demonstrate that these laws further any legitimate purpose,” so “they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”
Thus, the panel affirmed the decision from Idaho and reversed the decision from Nevada, sending the Nevada case back to the district court “for the prompt issuance of an injunction.” There was no need for a similar order concerning Idaho, since the trial court had already issued an injunction whose effect was stayed until the 9th Circuit could rule. The 9th Circuit’s ruling effectively lifted that stay.
Although the other judges on the marriage panel joined Judge Reinhardt’s opinion, one of them, Clinton-appointee Marsha Berzon, wrote a concurring opinion, arguing that the case could alternatively be decided as a sex discrimination case. Under Supreme Court precedents, sex discrimination cases merit heightened scrutiny. Of course, applying heightened scrutiny led Berzon to the same conclusion reached by the entire panel on the merits. But she focused her analysis on a point that was only briefly mentioned by the full panel decision: that Monte Neil Stewart, the attorney who argued in defense of the Idaho and Nevada laws, had advanced as his central argument one that relied heavily on stereotypes about the roles of men and women when it comes to raising children. The Supreme Court’s sex discrimination jurisprudence sharply rejects any policy that relies on stereotypes about men and women. Judge Berzon’s opinion runs through a litany of major Supreme Court cases that rejected sex stereotypes in a wide variety of factual contexts, and she found that they were no more a legitimate basis for policymaking in this case.
Finally, and perhaps surprisingly, Judge Reinhardt released his own separate concurring opinion, of course agreeing with the opinion he wrote for the panel but adding his view that this case also involved the fundamental constitutional right to marry, and thus could have been decided as a Due Process case using the strict scrutiny standard that the Supreme Court applies when it is faced with a law that abridges a fundamental right. Fundamental rights are those that are deeply embedded in our history and tradition. Opponents of marriage equality have argued that since same-sex marriage is a very new phenomenon, it cannot be considered a fundamental right. Judge Reinhardt agreed with the plaintiffs in these cases that the opponents have framed the fundamental rights question too narrowly, and he referred to the Supreme Court’s 2003 decision striking down the Texas sodomy law, in which Justice Anthony Kennedy made a similar point in criticizing the Supreme Court’s notorious 1986 Georgia sodomy law decision, Bowers v. Hardwick, for defining too narrowly the right at issue. Reinhardt concluded that the right to marry recognized by the Supreme Court broadly encompasses the issue of choice of marital partner and is not narrowly focused on different-sex couples. He invoked a series of Supreme Court marriage decisions that found a right to marry in situations where couples could not engage in procreative activity, thus undermining the defendants’ argument that procreative potential is the defining characteristic of marriage.
However, neither Judge Berzon’s sex discrimination argument nor Judge Reinhardt’s fundamental rights argument won agreement from the other judges on the panel. (The third judge, Clinton-appointee Ronald Gould, did not write a separate opinion.) Therefore, the decision of the panel as such is based solely on sexual orientation discrimination.
The 9th Circuit’s SmithKline decision was not tested by en banc review or Supreme Court review, as the losing party in that appeal, Abbott Laboratories, decided not to take the case further on that question. Thus, although it is a binding 9th Circuit precedent, it appears to be an outlier as a matter of federal constitutional law. The 2nd Circuit adopted a heightened scrutiny standard when it was reviewing the DOMA case, but the Supreme Court did not specifically endorse that aspect of the ruling when it affirmed the 2nd Circuit’s decision to strike down Section 3 of DOMA. The 1st Circuit had used the rational basis test to strike down the same provision of DOMA in a separate case from Massachusetts. And, as Gene Schaerr, the attorney hired by Idaho to represent it in the Supreme Court, observed in the application for a stay, the 4th, 5th, 6th, 8th, 10th, 11th, D.C. and Federal circuits have all adopted the rational basis standard for evaluating sexual orientation discrimination claims.
Thus, although it might seem far-fetched that Idaho could get a stay pending appeal and perhaps a grant of Supreme Court review when that Court had turned down seven petitions just days before, there was an outside chance that Schaerr’s strategy would pay-off, intriguing enough justices to induce them to delay the implementation of this ruling while they decide whether to grant a petition for certiorari from Idaho.
Meanwhile, the Supreme Court “decision not to decide” on October 6 and the 9th Circuit’s decision on October 7 were having immediate effects. In Colorado, a state in the 10th Circuit where the attorney general, John Suthers, had filed an appeal of a district court pro-marriage-equality decision, the writing on the wall was apparent to Suthers, who joined with marriage equality plaintiffs to get existing stays lifted and advised clerks throughout the state on October 7 to start issuing marriage licenses to same-sex couples. When Colorado is added to the five states directly affected by the denials of certiorari, six states were added to the 19 (plus District of Columbia) where same-sex marriage is allowed and recognized. Elsewhere in the 10th Circuit, state authorities in Wyoming and Kansas did not seem inclined to throw in the towel, and existing lawsuits will continue to be defended.
In the 4th Circuit, Virginia Governor Terry McAuliffe issued an executive order on October 7 directing that “all entities in the executive branch, including agencies, authorities, commissions, departments, and all institutions of higher education further evaluate all policies and take all necessary and appropriate legal measures to comply” with the 4th Circuit’s decision, which held that the state’s ban on same-sex marriages unconstitutionally violates a fundamental right to marry. This would mean, for example, that state employees with same-sex spouses should be able to enroll them immediately for employee benefits coverage. Elsewhere in the 4th Circuit, federal trial judges asked the parties in pending lawsuits in West Virginia, North Carolina and South Carolina to file papers giving their positions on how the cases should proceed. In North Carolina, the attorney general had already indicated that he would no longer defend the state’s ban. In South Carolina, although the attorney general was talking tough about soldiering on with the defense, at least one county probate judge began issuing marriage licenses on October 7.
In the 9th Circuit, there are federal marriage equality cases pending in Arizona, Alaska and Montana, and it seemed likely that those will proceed to summary judgments for the plaintiffs quickly unless the Supreme Court grants a stay pending appeal of the 9th Circuit’s decision, in which cases the judges might decide to delay their rulings and see what happens with Idaho’s anticipated petition for certiorari.
And, of course, still to be heard from were the 6th Circuit, where arguments on appeals from four states were heard early in August, and the 5th and 11th Circuits, where appeals from Louisiana, Texas and Florida are pending but arguments haven’t been scheduled yet. In the Louisiana appeal in the 5th Circuit, Lambda Legal has accepted an invitation to join as co-counsel with the local attorneys representing the plaintiffs.
The 9th Circuit’s October 7 opinion listed an army of attorneys participating as co-counsel or amicus on all sides of the cases, which had been argued on September 8. As noted above, Monte Neil Stewart argued on behalf of the Idaho defendants and the Coalition defending the Nevada ban. Tara Borelli of Lambda Legal’s Atlanta office argued on behalf of the Nevada plaintiffs. Deborah Ferguson, a Boise attorney, argued on behalf of the Idaho plaintiffs.