New York Law School

Art Leonard Observations

Posts Tagged ‘Herbert v. Kitchen’

Supreme Court Denies Review of Marriage Equality Rulings from Three Circuits

Posted on: October 6th, 2014 by Art Leonard 1 Comment

Today (October 6) the Supreme Court announced that it had denied petitions for certiorari in Bogan v. Baskin (Indiana), Walker v. Wolf (Wisconsin), Herbert v. Kitchen (Utah), McQuigg v. Bostic (Virginia), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), and Smith v. Bishop (Oklahoma).  In these cases the U.S. Courts of Appeals for the 4th, 7th and 10th Circuits had ruled in recent months that same-sex couples have a right to marry and to have their out-of-state marriages recognized under the 14th Amendment.  In each case, either the Supreme Court or the court of appeals had granted a stay of the ruling pending the states’ appeal to the Supreme Court.  Now that the Supreme Court has refused to review these cases, the stays will be lifted, and five more states will quickly be added to the existing marriage equality list, which already includes 19 states and the District of Columbia.

The Supreme Court’s action will also have a quick echo effect, as lawsuits are pending before federal trial judges in another six states that are within the jurisdiction of the 4th and 10th circuits: West Virginia, North Carolina, South Carolina, Wyoming, Colorado, and Kansas.  Judges in those cases are likely to grant summary judgment motions by the plaintiffs quickly, since their rulings are controlled by the court of appeals decisions.  Thus, in the coming weeks marriage equality will spread to these states as well, reaching a national total of 30 states with more than 60% of the nation’s population.  This would  bring the issue close to the tipping point of 34 states that had allowed interracial marriages when the Supreme Court struck down Virginia’s ban on such marriages in 1967.  With today’s announcement, marriage equality has swept the 7th Circuit, as Illinois adopted marriage equality legislatively last year and Wisconsin and Indiana are the only other states in the circuit.

Still to be heard from are the 6th Circuit, where the court of appeals heard oral arguments on cases from all four states in the circuit (Michigan, Ohio, Kentucky and Tennessee) early in August, and the 9th Circuit, where the court of appeals heard arguments from Idaho, Nevada and Hawaii early in September.  The other states in the 9th Circuit, where marriage equality cases are pending in federal trial courts, include Alaska, Montana, and Arizona.  Observers of the 6th Circuit oral argument had predicted that this might be the first circuit to rule against marriage equality, but the Supreme Court’s action today might influence how those judges are thinking about the issue.  There was no dissent from the denial of certiorari, which means none of the justices was willing to go on record as opposing lifting the stays and allowing marriage equality to go into effect in five more states.  This may send some sort of signal to the lower courts.  In the 9th Circuit, it is widely expected that the court — which previously struck down California Proposition 8 — would rule for marriage equality.

Least far along are the 5th, 8th and 11th Circuits.  In the 5th, the court has yet to schedule arguments on appeals from district court rulings in Texas and Louisiana, although it recently granted a motion to expedite briefing and hear those cases argued on the same day, probably in November.  The other state in that circuit is Mississippi, where litigation is pending in the trial court.  In the 8th Circuit, Minnesota and Iowa already have marriage equality, and an appeal is pending before the Arkansas Supreme Court of a marriage equality ruling by a state trial judge.  Cases are pending in trial courts in other states in that circuit: North and South Dakota, Nebraska and Missouri, where a state court judge ruled on October 3 that the state must recognize same-sex marriages contracted in other states and state officials have not announced whether they will appeal the ruling.  In the 11th Circuit, the circuit court has yet to schedule an argument on Florida’s appeal from a trial court pro-marriage equality ruling, and cases are pending in federal trial courts in Georgia and Alabama.  Not to be forgotten are cases pending in Puerto Rico and the Virgin Islands, which are in the 1st and 3rd Circuits, respectively.  All of the states in those circuits now have marriage equality, although the circuit courts have not ruled on the question.

A decision by the Supreme Court to deny a petition for certiorari is NOT a decision on the merits of the case.  That the Court decided to allow marriage equality to go into effect in five states (and, by extension, 11 states) without a Supreme Court ruling on the merits seems prudent, if not widely anticipated.   Justice Ruth Bader Ginsburg, a likely marriage equality supporter who has already officiated at several same-sex marriages and was part of the majority in U.S. v. Windsor, observed in a recent talk at the University of Minnesota Law School that she saw no urgency for the Supreme Court to get involved in this issue so long as there was no disagreement among the circuit courts of appeals.  There was, of course, human urgency, if not legal urgency, because the rulings affecting five states had been stayed, but that urgency is immediately dissipated by lifting the stays and allowing those decisions to go into effect.  The prudence of the Court’s decision to abstain inheres in the trend of public opinion.  Support for same-sex marriage increases as the number of states allowing such marriages grows, so the Court’s abstention will allow that trend to continue, making a later decision on the merits even less controversial than might have been the case had the Court been deciding when “only” 19 states allow same-sex marriage.

Indeed, some have speculated that abstention by the Supreme Court may make it possible to achieve marriage equality without a Supreme Court decision.  Some more states may see the handwriting on the wall, as did Hawaii and Illinois last year, and decide to amend their marriage laws to allow same-sex marriages.  Even though the denial of review is not a merits decision, lower federal courts may be influenced by it in deciding the remaining cases.  After all, it just takes four votes to grant certiorari.  If the four most conservative Republicans — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito – presumably opposed to marriage equality based on their dissenting opinions in U.S. v. Windsor (last year’s DOMA case), thought they had a chance of picking up the vote of Justice Anthony Kennedy, author of the Court’s Windsor decision, they would likely have voted to grant review in one or more of these cases.  The four Democratic appointees — Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — presumably marriage equality supporters based on their Windsor votes (and Justice Kagan has also officiated at a same-sex marriage) — may agree, as indicated by Justice Ginsburg, that there is no need to vote for review unless and until a circuit split develops.  No need tempting fate, given Justice Kennedy’s public silence on the matter.

The justices maintain absolute secrecy about what is said in their private conferences, so we may never learn what Justice Kennedy may or may not have said in last week’s conference to persuade his four Republican colleagues and his four Democratic colleagues to refrain from voting to grant review, but it seems a good bet that he gave no hope to the Republicans that they were likely to get his vote for a decision reversing these court of appeals rulings.  This gives grounds for optimism that if the issue does get to the Supreme Court in its current configuration, it will likely be decided in favor of marriage equality.  Time might change that calculus if a vacancy develops on the Court, but that’s another story. . .

 

 

Utah Files Petition for Supreme Court Review of Marriage Equality Ruling

Posted on: August 5th, 2014 by Art Leonard No Comments

Utah Governor Gary Herbert and Attorney General Sean Reyes filed their petition for certiorari with the United States Supreme Court on August 5, seeking review of the 10th Circuit Court of Appeals’ ruling in Kitchen v. Herbert.  At the Supreme Court, the case would be called Herbert v. Kitchen.  The 10th Circuit ruled on June 25 that Utah’s ban on same-sex marriage violated the 14th Amendment by depriving same-sex couples of the fundamental right to marry without sufficient justification.

Utah’s counsel of record, Gene C. Schaerr and John J. Bursch, have put together a certiorari petition that is well-calculated to persuade the Court that they should take the case.  They have position this as a federalism case.  Their main “pitch” to the Court is that the task of defining marriage is left under our constitutional scheme to the states, and that federal courts should not dictate how that term is to be defined.  This is reflected in their wording of the question presented to the Court: “Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.”

They build on Justice Samuel Alito’s dissenting opinion in U.S. v. Windsor, in which he posited that there are essentially two conceptions of marriage in the United States today, an adult-centric version and a child-centric version, and that the question which of these concepts to embrace should be left to the political processes of the states under a constitutional scheme which has traditionally left the details of domestic relations law to the states.  They come back numerous times to Justice Anthony Kennedy’s statements in his opinion for the Court in Windsor that the definition of marriage has traditionally been left to the states, and that for almost all of our history that definition has limited marriage to the union of a man and a woman, and they emphasize the Court’s holding in Windsor that the constitutional flaw in Section 3 of the Defense of Marriage Act was that Congress had failed to defer to state decisions to allow or recognize same-sex marriages.

In other words, this Petition does not demonize gay people or employ homophobic language.  It is carefully written to avoid comments that might be deemed hostile, and emphasizes that both the trial judge in this case, Robert Shelby, and the 10th Circuit panel, had specifically found no evidence that Utah’s ban on same-sex marriage was enacted out of animus against gay people.  Rather, they argue, Utah’s ban, most recently enacted as a constitutional amendment a decade ago, was a decision by the people of the state to embrace a child-centric concept of marriage, under which the procreative potential of different-sex marriage was its defining feature and linking children with their biological parents the main purpose.

The purpose of a petition for certiorari is to persuade the Court that there is an important federal question that requires national resolution.  This is an easy argument to make in light of the current litigation situation.  They list all the states in which marriage equality litigation is pending — a very impressive list of 32 states — and also emphasize that hundreds of same-sex couples were married in several of these states when trial courts did not stay their rulings and some time elapsed until appellate courts could restore the “status quo” by staying the decisions pending appeal.  As a result, there is collateral litigation about the validity of those marriages that would be resolved by a ruling on the merits by the Court.

They point out that the Court has already decided recently that marriage equality is a decision requiring its attention, when it granted certiorari in December 2012 in Hollingsworth v. Perry, the Proposition 8 case from the 9th Circuit.  Although the Court ultimately decided that the petitioners’ standing in that case precluded a decision on the merits, it had granted certiorari on the same question presented in this case, so it had already decided recently that a federal court decision striking down a state ban on same-sex marriage presented a pressing federal question.  They also note that the Utah litigation has already generated two stays from the Supreme Court: first, staying Judge Shelby’s decision in January 2014, and then more recently staying Judge Kimball’s decision in Evans v. Herbert concerning the validity of the marriages performed during the interval between Judge Shelby’s decision and the Supreme Court’s stay of that decision.  In issuing a stay, the Court makes an initial determination that the case is likely to be worthy of Supreme Court review, with a possibility that it would be reversed.  Thus, they argue, the Court has already decided, preliminarily, that this is a case that likely merits review.

Finally, they argue that there is a split of authority that needs resolution by the Court.  They note Baker v. Nelson, the Supreme Court’s determination in 1972 that the Minnesota Supreme Court’s rejection of a 14th Amendment claim for marriage equality did not present a substantial federal question, even in light of the Court’s recent ruling against anti-miscegenation laws in Loving v. Virginia. They contend that Baker v. Nelson was still binding and that the 10th Circuit erred in failing to follow that precedent.  They argue that the method used by the 10th Circuit to reach its decision that a fundamental right is involved in this case violates the methodology approved by the Court in Washington v. Glucksberg in 1997, and that it violates the Court’s statement last year in U.S. v. Windsor that the federal government must defer to the states in defining marriage.  Finally, they note a split from the 8th Circuit’s pre-Windsor ruling in Citizens for Equal Protection v. Bruning, which had rejected an equal protection challenge to a same-sex marriage ban in a somewhat different context.

They argue that this case, the first in the door from the current wave of marriage equality litigation, is also the “ideal vehicle” for the Court to use in deciding the marriage equality question.  First, the Court is already familiar with this litigation from considering and granting two stay petitions.  Second, the petitioners are vigorous proponents of the child-centric marriage concept.  Third, the findings of the courts below that Utah did not act out of animus left the Court free to focus on the “pure legal question” rather than being distracted by the animus findings in some of the other pending marriage equality cases.  Fourth, they argue that the courts below were “unusually clear in embracing the adult-centric concept as the basis of their holdings that the fundamental right to marriage includes the right to marry someone of the same sex,” thus highlighting the clash of philosophy that is at stake.  Fifth, they note that unlike some of the other marriage equality cases now pending, this one presents both the issues of the right to marry and of recognition of out-of-state marriages, so it would provide a vehicle to address both issues in one case.  Sixth, there are no standing issues to prevent the Court from reaching the merits.  Seventh, “there is no need to let the issue percolate even more” in light of the litigation history and the U.S. Attorney General’s announcement that he will support the plaintiffs when the Court next takes up the marriage equality issue.  Finally, they emphasized that counsel on both sides of the case “are experienced and capable.”  (Counsel for the Respondents include Peggy Tomsic, who presented a brilliant oral argument at the 10th Circuit, and attorneys from the National Center for Lesbian Rights, whose Legal Director, Shannon Minter, triumphed in the oral argument on marriage equality before the California Supreme Court back in 2008.)

“The harm in waiting is significant,” they argue, “regardless of which side prevails.  Either thousands of couples are being denied their constitutional right to marry, or millions of voters are being disenfranchised of their fundamental right to retain the definition of marriage that has existed since before the People ratified the Constitution.  This Court should grant the petition and answer, once and for all, the important question presented.”

They close with a strong summary of their argument on the merits:  “Promoting marriage as an institution designed to honor every child’s fundamental right to know and be raised by a mother and father does not ban any other type of relationship.  But rewriting the Constitution to impose the Tenth Circuit’s marriage definition on every single State has consequences.  It communicates that the marriage institution is more about adults than children.  It teaches that mothers and fathers are interchangeable and therefore expendable.  And it instills an incentive that citizens seeking social change should use the courts, rather than the democratic process, to achieve it.  For all these reasons, the Court should grant Utah’s petition and reverse the Tenth Circuit.”

Throughout the petition Schaerr and Bursch make arguments and use vocabulary that could be sharply contested by marriage equality proponents.  Their goal in this document, however, is primarily to persuade the Court to take their case, and that should not be difficult in light of the prior certiorari grant in the Proposition 8 case.  One suspects that the Plaintiffs’ response to the Petition will not differ from the Petitioners on that primary goal, since they want a Supreme Court merits ruling that will finally lift the stay and allow same-sex marriages in Utah, but they will sharply counter many of the assertions concerning the merits.

To this reader, the suggestion by Justice Alito, adopted as a central point in this Petition, that there are two conceptions of marriage, adult-centric or child-centric, is absurd.  A strict binary is a distortion of reality and of the stakes in this litigation.  The Petitioners argue as if the decision to deny marriage to same-sex couples has no serious consequences for the children they are raising., and they seek to minimize any such consequence by asserting that relatively few same-sex couples raise children by comparison to opposite-sex couples, which is demographically faulty.  They contradict themselves at numerous points, but most seriously in suggesting that allowing same-sex couples to marry is all about the adults and ignores the interests of their children.  They also argue as if there is not a decade of experience with same-sex marriage in Massachusetts that can serve to challenge their speculations about the impact that allowing same-sex marriage would have on heterosexuals in terms of “signaling” that heterosexual marriage is not important or desirable to provide a setting for raising children.  (There is similarly a decade of experience from Canada and the Netherlands, if that be deemed relevant, as it should be.)  If this is really all about the children, as they argue, then — as virtually all the courts that have considered the matter over the past year have concluded — the interests of the children being raised by same-sex couples must be taken into account, as Justice Kennedy suggested during the oral argument in Hollingsworth v. Perry and forcefully asserted in the Windsor opinion.  They similarly misrepresent the Supreme Court’s marriage precedents by the sin of omission.  They suggest that the Supreme Court’s view of marriage as a constitutional right has been the child-centric view, when in fact the Court has specifically found a constitutional right to marry to be present in the case of prisoners who are not entitled to conjugal visits — a case in which the Court provided a list of adult-centric reasons for finding that right to trump the state’s contrary arguments.

But my reflections now go to the merits; for now the merits are secondary to the question whether the Court will take the case.  This Petition makes a very strong pitch, and it is difficult to believe that it would not attract the votes of at least the four members of the Court necessary to grant review.  By the time they decide whether to grant review, they will also have petitions on file from court clerks in Oklahoma and Virginia, and, depending how quickly the 6th Circuit takes action in the cases being argued on August 6, perhaps from as many as four other states.   The possibility that the Court would put off taking a marriage equality case until next term seems remote.

 

Supreme Court Blocks Utah Marriages Pending 10th Circuit Decision

Posted on: January 6th, 2014 by Art Leonard 2 Comments

This morning, the U.S. Supreme Court issued the following order:

MONDAY, JANUARY 6, 2014
ORDER IN PENDING CASE
13A687 HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.
The application for stay presented to Justice Sotomayor and
by her referred to the Court is granted. The permanent
injunction issued by the United States District Court for the
District of Utah, case No. 2:13-cv-217, on December 20, 2013, is
stayed pending final disposition of the appeal by the United
States Court of Appeals for the Tenth Circuit.

This says everything but leaves many questions. First, Justice Sotomayor referred the application for the stay to the full Court, as most observers expected her to do, and that decision on her part really needs no explanation. Second, the Court granted the application, to the extent of holding that the federal district court’s injunction is stayed until “final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.” The Court, as is normal practice, did not give any explanation as to how this application met the criteria it has used in the past to determine whether a trial court ruling in a constitutional case should be stayed by the Supreme Court when both the trial court and the court of appeals have denied the same application. When the Supreme Court is not unanimous on one of these stay applications, there is occasionally a dissenting opinion by one or more of the Justices, which can shed some light on the discussion, if any, between the justices, but there is no indication of that.

So one can at best speculate as to why this action was taken. In my previous discussion after the opposing memo was filed by the plaintiffs, I suggested that if the Court decides this based on the legal criteria it had used in the past, the stay would be denied, but if they decided it based on realpolitik, the stay would be granted. Is anybody surprised which governed here? My thinking on this is also affected by the discussion I heard yesterday at the AALS Section on Sexual Orientation and Gender Identity issues program at the AALS annual meeting in New York. At least one prominent legal scholar read the Windsor case as not really signaling a readiness by the Court to embrace marriage equality as a 14th Amendment requirement on the states. Even though Justice Kennedy’s opinion in Windsor (the DOMA case) spoke a lot about the federal government’s obligation to respect the dignity of same-sex married couples by not discriminating against them in determining federal rights and obligations, this scholar emphasized that the court spoke of that dignity as something that had been conferred by the state when it opened up marriage to same-sex couples, and that the opinion had several references to the traditional role of the state in defining marriage. If that view, drawn from a close reading of Kennedy’s decision by a legal scholar who is, at least politically, disposed to support marriage equality, accurately describes the limits of Kennedy’s support for marriage equality, then perhaps the Court concluded that the state of Utah had shown that its chances of prevailing on the merits of the appeal are decent enough to support staying the injunction pending a final appellate ruling in the case.

The important and immediate question this brief Order does not address is: What is the status of the approximately 1,300 same-sex marriages that were licensed and performed in Utah between December 20 and January 3? Are they presumed to be valid and entitled to be treated as valid by the federal and state and local governments during this interim period of the appeal? This is an immensely practical question, because we are about to launch into tax filing season for the 2013 tax year, and those couples who married by the end of business on Dec. 31 need to know which tax status they use, single or married, in filing their federal and state income tax returns and, possibly, estate tax returns, if somebody who married in 2013 has already passed away before the end of that year. Those who married out of state already know that they must file their federal returns for 2013 as “married,” since the IRS is using the place of celebration rule to determine tax filing status, but they don’t necessary know how to file their Utah state returns. Those who married in Utah over recent weeks need to be advised as to both issues. Similarly, there are likely to be questions arising over the next few months until the 10th Circuit rules as to whether those already married will be treated as married by the federal and state governments for a range of issues, including Social Security survivor benefits, for example, Family and Medical Leave Act benefits, and so forth. As for state law, the administration of Gov. Herbert had advised state agencies that marriages contracted over the past few weeks should be fully recognized for such things as spousal benefits for state employees. Whether that remains true for marriages performed prior to the issuance of the stay needs to be clarified quickly.

The Obama Administration needs to quickly address the issue of federal recognition for the existing marriages, and the Utah government should also issue clarifying statements as soon as possible.