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Third Week of November 2014 Was a Busy Week on the Marriage Equality Front

Posted on: November 21st, 2014 by Art Leonard 1 Comment

Things have begun to happen so quickly that I have fallen behind in my blogging on marriage equality developments, so here is a quick summary about events during the third week of November.

Monday, November 17 –  Plaintiffs in the 6th Circuit marriage equality cases from Ohio, Kentucky, Tennessee and Michigan finished filing their petitions for certiorari with the Supreme Court.  These are the first petitions for certiorari in marriage equality cases to be filed with the Court since it denied petitions presenting essentially the same constitutional questions on October 6 in cases from Utah, Oklahoma, Virginia, Indiana and Wisconsin.  Since October 6, the Supreme Court had consistently denied applications to stay district court marriage equality rulings from other states in the 10th and 4th Circuits, as well as applications from states in the 9th Circuit, where the Court of Appeals struck down the Nevada and Idaho bans on same-sex marriage on October 7.  Cert petitions from the Ohio and Tennessee cases had been filed on Friday, November 14, and the petitions from the Michigan and Kentucky cases were filed on November 17.  The state respondents have up to thirty days to file responses, although they are not required to file anything.  There was wide speculation that the Supreme Court will grant one or more of these petitions once the filings are complete and the cases are scheduled for consideration at a conference of the Court.  If one or more petitions are granted by mid-January, it is likely that the cases can be scheduled for argument in the spring with decisions forthcoming by the end of the Court’s term in June.  If the Court takes longer to decide whether to grant a petition, it is possible that these cases would not be argued until the Fall 2015 term, with decisions coming by June 2016.  Thus, as Justice Antonin Scalia predicted in his dissent in the 2013 DOMA ruling, U.S. v. Windsor, the question of same-sex marriage would be back before the Court within a year or two of that ruling.

The speculation about what the Court will do was fueled in part by Justice Ruth Bader Ginsburg’s comments during an appearance at the University of Minnesota Law School in September, when she remarked that the Justices saw no urgency in taking up this issue as long as all the courts of appeals were deciding cases the same way, but that a circuit split would generate such urgency.  She specifically referenced the then-pending 6th Circuit case as possibly meeting that contingency.  Now the 6th Circuit has dropped that bomb, opening up a split with the 4th, 7th, 9th and 10th Circuits.

Also on Monday, November 17, Arizona Attorney General Thomas C. Horne filed a notice of appeal in Connolly v. Roche, seeking review of the U.S. District Court’s decision striking down Arizona’s state constitutional and statutory bans on same-sex marriage.  A.G. Horne had not sought a stay in that case, stating at the time that it would be “futile” to seek a stay from the 9th Circuit in light of its October 7 ruling in Latta v. Otter.  However, one suspects that Horne was under terrific political pressure to appeal the ruling regardless, and he announced a motivation of trying to avoid paying a large attorney fee award to the plaintiffs.  Of course, his appeal will contend that the district court erred in striking down the marriage ban.  The 9th Circuit set a deadline of February 25 for the state’s brief in support of its appeal, and set March 27 as the due date for the Appellee’s answering brief, so this case would not be argued until April or later.

Tuesday – November 18.  This was an incredibly busy day for marriage equality developments.  The 4th Circuit Court of Appeals turned down a motion by South Carolina Attorney General Alan Wilson for a stay of the U.S. District Court’s order requiring the state to allow same-sex couples to marry.   Wilson sought the stay pending his filing an appeal in the 4th Circuit from last week’s ruling by the District Court in Condon v. Haley.  As soon as he received the 4th Circuit’s order turning down his request, Wilson filed an “emergency application” with Chief Justice John Roberts seeking a stay from the Supreme Court.  Meanwhile, U.S. District Judge J. Michelle Childs issued her ruling on a pending summary judgment motion in Bradacs v. Haley, a marriage recognition case, holding the state’s refusal to recognize same-sex marriages performed in other jurisdictions to be unconstitutional.  The South Carolina Supreme Court had previously blocked the issuance of marriage licenses in the state to same-sex couples pending a ruling by Judge Childs, so her decision, in combination with the 4th Circuit denial of a stay in the Condon case and the lack of any immediate Supreme Court response to Wilson’s application, combined to bring marriage equality to South Carolina beginning on November 19.

There was another important development on November 18.  The 9th Circuit Court of Appeals posted a brief statement on the webpage it had opened up for developments in Hamby v. Parnell, Alaska’s appeal of a December 13 marriage equality ruling.  The state had requested that its appeal go directly to an en banc panel, bypassing the usual three-judge panel, as a three-judge panel would have been bound by the Circuit’s ruling in Latta v. Otter (as to which a petition for rehearing en banc filed by Idaho Governor Butch Otter is pending before the court).  The notice stated: “No active judge has requested a vote to hear this case initially en banc within the time allowed by General Order 5.2a.  The request is therefore denied.”  A briefing schedule order previously issued by the court suggests that the case will not be ready for oral argument until sometime in the spring.  This may also foreshadow a denial of Governor Otter’s pending petition for en banc review.

But that’s not all for November 18.  Also heard from that date was the Kansas Supreme Court, with a ruling in State v. Moriarty, a lawsuit instigated by Kansas Attorney General Derek Schmidt against 10th Judicial District Chief Judge Kevin P. Moriarty, who had responded the U.S. Supreme Court’s refusal to review the 10th Circuit marriage equality cases by deciding that because Kansas was in the 10th Circuit its ban on same-sex marriages was unconstitutional; thus, Moriarty ordered that clerks under his jurisdiction should begin issuing marriage licenses to same-sex couples.  Schmidt vociferously disagreed, taking the position that Kansas was entitled to its day in court on the constitutionality of its own marriage ban, even though the Kansas ban does not differ in any constitutionally material respect from the bans struck down in Utah and Oklahoma by the 10th Circuit.  Federalism, federalism! cried Schmidt.  The Kansas Supreme Court had responded to Schmidt’s suit by putting a temporary hold on Moriarty’s order.  On November 18, the court issued a somewhat ambiguous decision.  It seems that a federal district court ruled on November 4 that the Kansas ban was unconstitutional, the 10th Circuit had refused to stay that ruling, and the Supreme Court had denied an emergency application by the state for a stay pending appeal to the 10th Circuit.  But the district court’s preliminary injunction in that case specifically named only the clerks in two counties who were named defendants, and Schmidt took the position that no other clerks in the state were bound to issue licenses.  The Kansas Supreme Court’s November 18 decision lifted its temporary stay against Judge Moriarty’s order, but without taking a position on whether the U.S. District Court’s ruling was binding on all Kansas judicial district clerks, while noting of course that a state official, the Secretary of Health and Environment, was also a defendant in the federal case.  By the end of the week there was considerable confusion in Kansas, as many clerks were issuing licenses, others were not, and various state agencies were taking the position that until there was a final appellate resolution of the federal case, they were taking their marching orders from Attorney General Schmidt to deny recognition to same-sex marriages for purposes of state law.  This prompted an announcement by the ACLU that it was considering amending its lawsuit before U.S. District Judge Daniel Crabtree to seek a broader preliminary injunction ordering the state to recognize the marriages.  The Kansas Supreme Court made clear in its November 18 decision that same-sex couples who obtained a valid marriage license from a clerk in the counties that were issuing them could have their marriages performed anywhere in the state — just to muddy the waters further.

Wednesday – November 19.  On this date it was Montana’s turn. . .  Montana was the last state within the jurisdiction of the 9th Circuit that lacked a district court marriage equality ruling, until District Judge Brian Morris issued his Order in Rolando v. Fox, holding that the state’s same-sex marriage ban was unconstitutional, and issuing an injunction to “take effect immediately” requiring the state to allow same-sex couples to marry.  Realizing that filing a stay application would be futile, Attorney General Tim Fox immediately filed a notice of appeal with the 9th Circuit while same-sex marriages commenced in the state.  The 9th Circuit issued a briefing schedule under which an oral argument will not happen before April or later.

Thursday – November 20.  Lambda Legal, representing plaintiffs in the Louisiana marriage case, in which an appeal was already pending before the 5th Circuit with oral argument scheduled to take place in tandem with the state of Texas’s appeal from a decision rendered last spring, filed a cert petition with the Supreme Court, asking that Court to by-pass the 5th Circuit and take Lambda’s appeal from District Judge Feldman’s decision directly.  Lambda pointed out in its petition that there is already a circuit split, so no need to prolong things with arguments in more circuits.   It’s time for the Supreme Court to step in and make a nationally-binding decision.  (The other circuits in which appeals are pending are the 11th [Florida], the 8th [Missouri] and the 1st [Puerto Rico].)  Lambda also pointed out that granting cert in both the Louisiana case and one of the 6th Circuit cases would bring into play an unbroken string of states from the southern to the northern borders of the United States.  Later in the day, the Supreme Court posted its response to South Carolina Attorney General Wilson’s application for a stay.  The Court denied the application, noting that Justices Scalia and Thomas would have granted it.

Neither Scalia nor Thomas amplified their opposition with any written statement, but Thomas had gone on record as disagreeing with the Court’s decision to deny all the pending marriage equality certiorari petitions on October 6 when he filed a dissent from a denial of cert in an unrelated case, arguing that the Court needn’t wait for a circuit split in order to deal with questions of national importance from the lower courts, and citing the marriage petitions as examples of his point.

Also on November 20, the Arkansas Supreme Court heard arguments in the state’s appeal of Judge Chris Piazza’s ruling invalidating the Arkansas same-sex marriage ban from earlier in the year, and given the speed with which things are moving, a decision would be expected shortly.

Thus, as the busy week ended, the count of marriage equality states was continuing to trend upwards towards and beyond 35, even in the wake of the 6th Circuit’s anti-marriage-equality ruling, which seemed to have had little effect on the district courts that issued decisions this week.

 

Marriage Equality: The Day After and the Sequels

Posted on: October 8th, 2014 by Art Leonard No Comments

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.

9th Circuit Panel Dubious About Idaho and Nevada Justifications for Marriage Ban

Posted on: September 9th, 2014 by Art Leonard 2 Comments

The San Francisco-based 9th Circuit Court of Appeals panel that heard oral arguments on September 8 in marriage equality cases from Idaho, Nevada and Hawaii appeared to be very dubious about the justifications presented by Idaho and Nevada for their bans on same-sex marriage.  The Hawaii case focuses on a different issue: whether the district court’s ruling against marriage equality is “moot” because the Hawaii legislature passed a marriage equality law last year, and thus whether the lower court’s decision should be vacated and excluded from having any further significance as a ruling.

The outcome in the Idaho and Nevada appeals seems almost pre-ordained at this point.  Two of the judges on the panel, Stephen Reinhardt and Marsha Berzon, made up the majority of a 9th Circuit panel that ruled in January that sexual orientation discrimination claims merit heightened scrutiny, thrusting the burden on the state to show that its challenged policy significantly advances an important state interest.  Judge Reinhardt wrote the opinion for the 9th Circuit panel that struck down California Proposition 8 back in 2012.  And the third judge on the panel, Ronald Gould, was on a panel that issued what could be characterized as a pro-gay ruling in a challenge to the “don’t ask, don’t tell” military policy prior to its repeal by Congress.  Judges Berzon and Gould were appointed to the court by President Bill Clinton, and Judge Reinhardt was appointed by President Jimmy Carter.

Idaho and Nevada were both represented by the same attorney, Monte Stewart, who stumbled a few times during his second argument period, referring to Idaho when he meant Nevada, prompting Judge Gould to joke about the perils of arguing for two different clients on the same date.  Stewart’s argument was essentially the same for both cases, although the distinctly different situations in the two states required some fancy footwork on his part to try to rationalize their positions.  Stewart’s argument was that the state’s definition of marriage plays an important function in “messaging” to society the state’s policy preferences and the conduct it wants to encourage.  In this case, he argued, the state’s concern is to send a message that it is very valuable to the child born to heterosexual couples that their parents be married so that they can be raised in a stable household with both a mother and a father.   He referred repeatedly to a the “child’s bonding right” which he defined as the right of a child to bond with both of its biological parents.  Stewart professed particular concern about the problem of children being raised by single mothers, and the particular harm this would have to boys being raised without a father, but he also alluded to the problem of motherlessness during his argument.  He was challenged by Judge Gould during the Nevada argument to explain the “derivation” of this right, where it is based in the constitution, and he was forced to admit that he had invented the term as a shorthand for his messaging argument and did not contend that it was a positive constitutional right.

Stewart repeatedly referred to “genderless marriage,” a state marital regime in which the couples might be either same-sex or opposite-sex, as sending a message that gender does not matter and that it is not important to the welfare of the child that it have a chance to “bond” with parents of both sexes.  His argument rested entirely on speculation, and in both arguments he referred to the state’s “crystal ball” in which it foresaw harmful consequences for future generations if the message sent by state endorsement of traditional marriage was abandoned.  He asserted that it was the prerogative of the state legislature, in its traditional role as the determiner of state family policy, to legislate based on its prediction of consequences.

When confronted by Judge Berzon, the most persistently engaged questioner, and then Judge Reinhardt, with the need for the state to show that allowing or recognizing same-sex marriages would cause the increase in “fatherlessness” that Stewart insisted the states had a compelling interest to prevent, Stewart had nothing to fall back on except the “federalism” argument, although he didn’t use that word.  He referred to Justice Anthony Kennedy’s opinion for the Supreme Court in the DOMA case last year, in which Kennedy went on at length about the traditional role of the states in deciding who could marry.

There are important differences between the two states.  In Idaho, there is a broad constitutional amendment that bans not only same-sex marriage but also civil unions and domestic partnerships, providing no mechanism for same-sex couples to form a legally recognized relationship.  In Nevada, by contrast, the state has a narrower marriage amendment, and the legislature adopted a broad domestic partnership law under which same-sex couples have virtually the same rights as different-sex couples concerning parenting and relationships with children.  Thus, the difficulty for Stewart in explaining how his “messaging” argument fared in a state that had undermined the message by adopting domestic partnerships.  The Idaho amendment presents the broader target for the plaintiffs by denying no rights or recognition whatsoever, but the Nevada amendment, in combination with the state’s partnership law, undermines the family policy arguments by allowing the very rights underlying Stewart’s “message” argument.  In the end, one suspects the court will find the inconsistencies overwhelming.

Deborah Ferguson, a former Assistant U.S. Attorney who is now in private practice, argued for the plaintiffs in the Idaho case, and Tara Borelli, a staff attorney at Lambda Legal, argued for the plaintiffs in the Nevada case.  Ferguson was defending a pro-marriage-equality ruling by the district court in Idaho, while Borelli was appealing an adverse ruling by the district court in Nevada that was issued in 2012 before the Supreme Court had invalidated the federal marriage recognition ban in DOMA.  Despite the different posture of the plaintiffs in both cases, the post-DOMA litigation record, now including pro-marriage equality rulings from the courts of appeals in the 4th, 7th and 10th Circuits, put them in the stronger position.  Even though Stewart had tried to craft an argument that would seem somehow new or different from the arguments that were rejected over the past several months by three other circuit courts, he was clearly straining to do so.

From their questions, it appeared that the judges were most concerned with how they were going to rule for the plaintiffs rather than whether they were going to rule for the plaintiffs.  The other circuits have reached the same results but followed different legal paths to get there.  The 4th (Virginia) and 10th (Utah and Oklahoma) circuits have treated these as fundamental rights cases, finding that the states had failed to present a compelling argument for depriving same-sex couples from access to the fundamental right to marry, and had avoided the need to determine what level of judicial scrutiny to apply to an anti-gay state policy.  The 7th Circuit (Indiana and Wisconsin), by contrast, signaled concern during oral argument about the difficulty of circumscribing a fundamental marriage right without endangering laws against polygamy and incest, and instead followed the equal protection route, finding that the state had not provided any rational basis for adopting a policy that discriminates against a group of people defined by an immutable characteristic (sexual orientation) that has been the target of severe social and governmental hostility.  The 7th Circuit’s opinion, by Judge Richard Posner, had employed his usual economic analysis to contrast the harms inflicted by the marriage ban with the minimal, if any, benefits to society or the state derived from banning same-sex marriage.  If the harms generated by a policy significantly outweigh the benefits it may produce, then Posner would question the rationality of the legislature that passed such a law.

Judge Reinhardt cut to the chase during Ferguson’s argument, asking whether the plaintiffs cared which legal argument the court used, so long as the plaintiffs won.  Ferguson had the wit to give the shortest possible answer: “No.”  That brought a wave of laughter in the courtroom. But she quickly followed up by contending that the fundamental right and equal protection arguments were “both important and related” and were both “squarely presented to the court” in this case.  She urged the court to rule on both grounds.

Another point of contention arose when Stewart argued that the 9th Circuit’s decision in January finding that heightened scrutiny applied to a sexual orientation claim was not relevant to this case.  He premised this on his argument that Idaho and Nevada adopted their marriage bans not out of anti-gay bias or animus but because the states wanted to incentivize heterosexual couples to marry if they intended to raise children and feared that allowing same-sex marriage would send the “wrong” message to such couples, devaluing the importance of “man-woman” marriage.  He suggested that the DOMA case, on which the 9th Circuit panel had relied in applying heightened scrutiny, rested on Justice Kennedy’s finding that Congress adopted DOMA in 1996 out of anti-gay animus, and so it would be inappropriate to apply heightened scrutiny in cases that didn’t involve such animus.

Anybody who lived through the ballot initiative campaigns in states that adopted marriage amendments during the last decade would undoubtedly gag at the assertion that there was no animus involved in those votes, but apart from District Judge Vaughn Walker in the Proposition 8 case in California, the courts have generally been loath to attribute anti-gay animus to voters who supported the marriage amendments.  Indeed, Circuit Judge Jerome Holmes in the 10th Circuit wrote a concurring opinion insisting that there was no evidence of animus in the adoption of the Oklahoma marriage amendment and that animus had nothing to do with that court’s determination that the amendment was unconstitutional.  But Judge Posner, the empiricist who refuses to indulge in legal fictions, blasted this one out of the water in his opinion for the 7th Circuit, insisting that anti-gay legislation is an expression of hate, pointing to the “savage” discrimination that gay people had endured for generations.  It’s difficult to know where the 9th Circuit panel will go with this.  Borelli noted in her argument that the state’s justifications were notably absent from the legislative history of these marriage bans, having been apparently manufactured after the fact for purposes of the litigation.  If heightened scrutiny applies, such post-hoc rationalizations are not to be considered by the court.

Judge Berzon said that she was “mystified” that so far the courts deciding marriage equality cases have not focused on the issue of sex discrimination, since she found this case to involve sex discrimination in the same way that Loving v. Virginia, the interracial marriage case, involved race discrimination. Even though there was “equal application” of the prohibition, the Supreme Court ruled in Loving that the law would still fall to an equal protection challenge due to the legislature’s racial motivation.  The first American appellate court to rule in a marriage case, the Hawaii Supreme Court in 1993, had conceptualized it as a sex discrimination case, adopting the Loving v. Virginia reasoning, but very few courts have done so since then.  Ferguson responded to Berzon’s musing by pointing out that over time society has so removed the legal distinctions between husbands and wives to produce spousal equality that there remains little basis for contending that there are distinct sex roles in marriage.  Both Ferguson and Borelli noted the underlying reliance on sex stereotyping of parental roles in the states’ arguments that a child must have one parent of each sex in order to have an optimal family situation.  One suspects that if Judge Berzon ends up writing an opinion in this case, there will be some discussion of sex discrimination, at least as an alternative to the other main theories of sexual orientation discrimination or fundamental right to marry.

If there is any suspense about what the 9th Circuit will do with the Idaho and Nevada cases, it is whether the court will decide this as a fundamental rights case or a discrimination case, or following the lead of some of the trial court opinions, ruling in the alternative on both theories.  But, as Judge Reinhardt’s questioning signaled, in the long run it makes little difference. The Supreme Court will probably decide this issue during its 2014-15 term, and both theories will be fully explored in the briefs and oral arguments.  When Stewart argued based on Justice Kennedy’s opinion in another case that he would support the state’s right to decide who could marry, Reinhardt, acknowledging that ultimately the Supreme Court will decide the issues in this case, said, “You’ll have an opportunity to find out what Justice Kennedy really thinks.  You’re speculation is as good as ours.”  Stewart comment, “We all know this will be decided on step up,” and Reinhardt added, “and we know by whom,” channeling the general supposition that a Supreme Court marriage equality ruling will likely be a 5-4 decision with the deciding vote cast by Justice Kennedy.

As to where things stand at the Supreme Court, the Virginia and Oklahoma cases are now listed for potential discussion at the Court’s first conference of the new term on September 29, so we may know within the next few weeks whether the Court will definitely take a marriage equality case this term.  Within the next week or so the Utah case may also be added to that agenda as briefs continue to be filed with the Court in response to the petitions that are now on file.  Virginia filed new papers suggesting that the Court grant all the petitions from various parties in the Virginia case so that everybody with a stake there can be heard.  Indiana’s Attorney General announced on September 8 that he will file a petition for Supreme Court review, bypassing any request to the 7th Circuit for reconsideration by a larger panel of judges, although it seems unlikely that all the papers will be on file in time to include the 7th Circuit ruling in the Court’s September 29 conference.

The Hawaii argument was rather peculiar, an interesting footnote.  A district judge had ruled against marriage equality prior to the DOMA case, and private counsel representing the plaintiffs had filed an appeal in the 9th Circuit, but the appeal just sat there while the Hawaii legislature, revising its views in the post-DOMA climate, passed a marriage equality law last year that went into effect in December 2013.  The 9th Circuit then asked the parties whether the case was moot.  But meanwhile litigation was initiated by marriage equality opponents in both the federal and state courts in Hawaii, contesting the authority of the legislature to pass the law in light of the Hawaii Marriage Amendment adopted in reaction to marriage litigation in the 1990s.  Their contention is that the legislature could not pass a law authorizing same-sex marriage unless the amendment was repealed.

This argument, characterized by Clyde Wadsworth, attorney for the plaintiffs, as bordering on frivolous, clearly misrepresents the text of the Hawaii marriage amendment and the legislative deal that led to its enactment.  Unlike state marriage amendments in other jurisdictions, the Hawaii marriage amendment was not intended to ban same-sex marriage, but rather to take the question whether same-sex couples could marry out of the courts and to put it in the exclusive authority of the political process.  The amendment provides that only the legislature can decide whether same-sex couples can marry.  That’s what the legislature did last year; it decided to amend Hawaii’s marriage laws to allow same-sex couples to marry, having just a few years previously adopted a civil union law.  The anti-marriage group was tossed out of federal court on standing grounds, and the state trial court dismissed their lawsuit for failure to state a plausible legal claim, but the Hawaii Supreme Court has agreed to hear their appeal.  Ken Connelly, the lawyer arguing on behalf of this group, Hawaii Family Forum, urged the court to keep  the appeal “on hold” rather than to declare the case moot and vacate the district court’s order.

Connelly’s rationale was that if the Hawaii Supreme Court rules in favor of his clients, the ban on same-sex marriage will be restored in Hawaii and the question whether the district court’s decision was correct would once more be a live question for the 9th Circuit to decide.  He contended that if the 9th Circuit now dismisses the appeal as moot and vacates the district court’s opinion, the plaintiffs would have to go back and start a new case “from scratch” to attack the constitutionality of the marriage ban in federal court all over again.  On the other hand, he contended, letting the appeal sit a few months longer would obviate that intermediate step.

The court seemed puzzled at times by his argument, which almost seemed like it should be made by the attorneys for the plaintiffs, who would be the ones inconvenienced if they had to start a new lawsuit in response to a decision by the Hawaii Supreme Court.  But Wadsworth insisted that the plaintiffs wanted the appeal dismissed as moot and the trial court decision vacated.  He pointed out that under 9th Circuit precedents, a repeal of the challenged statute mooted the case, and it should be dismissed unless it was very likely that the legislature would respond to a dismissal be re-enacting the challenged statute.  In light of developments in Hawaii over the past year, there seems little likelihood of that happening.  Furthermore, as Judge Berzon pointed out, the court’s decision in the Nevada and Idaho cases would be binding on the district court in Idaho, and ultimately the Supreme Court is going to decide the issue, probably in 2015, so what purpose is served be keeping the Hawaii appeal “on hold”?

Ultimately the court might buy into Connelly’s argument that “holding” the appeal harms nobody and might be beneficial, but that would mean accepting his contention that his client might win their appeal in the Hawaii Supreme Court, which is a slender reed on which to premise such action in light of the unambiguous text of the Hawaii Marriage Amendment.

The 9th Circuit is likely to proceed quickly on the Nevada and Idaho cases, aware of the clock ticking at the Supreme Court and the likelihood that if they dally their case will turn into a side-show.  Judge Reinhardt, in particular, seemed quite eager to rule for plaintiffs as expeditiously as possible, and there were no obvious signs of resistance from his colleagues.

 

Federal Magistrate Judge Declares Idaho’s Ban on Same-Sex Marriage Unconstitutional

Posted on: May 14th, 2014 by Art Leonard No Comments

They just keep on coming… Hard on the heels of last week’s ruling by a state court judge in Arkansas that the state’s ban on same-sex marriages violates both the state and federal constitutions, a U.S. Magistrate Judge in Boise has ruled in Latta v. Otter that Idaho’s ban violates the 14th Amendment Due Process and Equal Protection Clauses. Chief U.S. Magistrate Judge Candy Wagahoff Dale released her decision late on May 13, issuing an injunction against enforcement of the ban to become effective at 9 a.m. on May 16, unless it is stayed by judicial action. Anticipating this result, Governor C. L. (Butch) Otter had already filed a Contingent Motion to Stay Pending Appeal on Monday, with the expectation that Judge Dale will grant a stay pending Otter’s appeal to the 9th Circuit. News reports out of Idaho suggested that Idaho Attorney General Lawrence Wasden, as representative of the state government, would be filing his own motion. [Update: On Wednesday, May 14, Judge Dale denied the motion for a stay. The Governor and Attorney General sought an emergency stay from the 9th Circuit. A three-judge panel of the 9th Circuit granted a “temporary” stay while it considered the parties’ arguments concerning a stay pending appeal. As a result, the Magistrate’s order did not go into effect at 9 am on May 16.]

The parties had agreed to expedite the case by referring it for decision to Magistrate Judge Dale. Normally Magistrate judges deal with pretrial discovery matters and settlement conferences and issue recommendations to federal district judges, but in this case Judge Dale was authorized to issue a final decision on the merits.

Judge Dale’s decision closely resembles the long string of federal trial court decisions dating back to December in Utah, but it had one important distinguishing factor. This was the first decision by a federal trial court within the jurisdiction of the 9th Circuit Court of Appeals to rule on a marriage equality claim in light of the circuit court’s January 21 decision in SmithKline Beecham v. Abbot Laboratories. In that case, a three-judge panel decided that the Supreme Court’s U.S. v. Windsor decision, striking down Section 3 of the Defense of Marriage Act, had effectively invalidated prior 9th Circuit rulings on the question whether sexual orientation discrimination claims are subject to “heightened scrutiny.” When heightened scrutiny applies, the challenged law is presumed to be unconstitutional and the government bears the burden of proving that the law significantly advances an important government policy. Most legal commentators agree that a ban on same-sex marriage cannot survive heightened scrutiny review. The SmithKline panel found that, in light of how the Supreme Court dealt with the challenge to DOMA in Windsor, such claims should be subject to “heightened scrutiny.”

The defendants in the Idaho case — Governor Otter, Ada County Recorder Christopher Rich, who had denied marriage licenses to some of the plaintiffs, and the State itself as represented by Attorney General Wasden — argued that SmithKline was distinguishable from this case and should not apply. They argued that the SmithKline ruling limits application of heightened scrutiny to “instances of proven animus or irrational stereotyping,” but Judge Dale rejected this contention. “SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes,” she wrote, “but it does so in the context of Batson analysis [the Supreme Court’s precedent on discrimination against potential jurors] — not in the discussion about Windsor. With respect to Windsor, the court’s holding is undeniably broad: ‘Windsor’s heightened scrutiny applies to classifications based on sexual orientation.’ Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead it found Windsor to be ‘dispositive of the question of the appropriate level of scrutiny in this case,’ a case that fits into the broader category of ‘classifications based on sexual orientation.’ Just as the Ninth Circuit was ‘bound by Windsor’s controlling, higher authority’ when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws.”

Ironically, Judge Dale didn’t even have to engage with this argument to reach her result, as she had already concluded earlier in her opinion that the Idaho marriage law would be subjected either to strict scrutiny — the stiffest level of judicial review — or heightened scrutiny, because the law abridges a fundamental right: the right to marry. She firmly rejected the defendants’ argument that she was still bound to dismiss the case based on the U.S. Supreme Court’s 1972 rejection of a same-sex marriage challenge from Minnesota. Baker v. Nelson, on the ground that same-sex marriage did not present a “substantial federal question,” pointing out that all the federal courts ruling in marriage equality cases since the Windsor decision have rejected that argument as no longer tenable. Then she demolished the defendants’ argument that the plaintiffs are seeking “recognition of a new fundamental right, the right to same-sex marriage.” “This ‘new right’ argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms,” wrote Judge Dale. “Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat dad’s right to marry,'” she continued, invoking the Supreme Court’s leading marriage cases. “Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.”

As such, of course, the Supreme Court has frequently referred to the “right to marry” as a right of fundamental importance, and spoke of it in similar terms in the Windsor decision last June. Furthermore, Judge Dale noted, “and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay and lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.”

Having settled on heightened scrutiny, Dale carefully reviewed each of the “justifications” proposed by the defendants for maintaining the ban, and found them all wanting. The notion that the ban advanced the state’s interest in the welfare of children struck her as “so attenuated that it is not rational, let alone exceedingly persuasive.” Rejecting the defendants’ attempt to rely on outlier “scientific” publications arguing that children need to have parents of both sexes in order to thrive, she wrote, “The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. But the Court need not — even if it could at the summary judgment stage — resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage.” Indeed, she pointed out, denying same-sex couples the right to marry disregards “the welfare of children with same-sex parents,” she observed. “Although the State and Recorder Rich dismiss same-sex households as ‘statistically insignificant,’ no Defendant suggests that the State’s child welfare interest does not extend to the children in these households.”

Judge Dale was similarly dismissive of the ridiculous “channeling procreation” argument or “federalism” arguments, and was particularly critical of the argument that the ban was necessary to “accommodate religious freedom,” characterizing this argument as “myopic.” “No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture,” she acknowledged, “But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. To the extent that Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho.” She went on to quote the Utah marriage decision on this point: “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.”

Of course, no marriage equality decision would be complete without a quote from one of Supreme Court Justice Antonin Scalia’s dissenting opinions, in which he argued that the Supreme Court’s gay rights rulings were opening up the possibility of constitutional claims to the right to marry. Judge Dale quoted Scalia in the context of refuting the defendants’ argument that there is no evidence of animus against gay people in the Idaho ban. “Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. ‘But “preserving the traditional institution” is just a kinder way of describing the State’s moral disapproval of same-sex couples,'” she quoted Justice Scalia’s dissent in Lawrence v. Texas, the 2003 case invalidating sodomy laws.

Concluding, Judge Dale wrote that the plaintiffs “are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiff suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

Grounding her decision firmly in the 14th Amendment, Judge Dale wrote, “While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision,” and concluded: “Slow as the march toward equality may seem, it is never in vain.”

Governor Otter’s “contingent” motion pointed to the Supreme Court’s January 6 stay of the Utah marriage decision, arguing that the “Supreme Court made clear that it will decide the constitutionality of man-woman marriage and until that time no lower court decision holding against man-woman marriage should operate to allow same-sex couples to marry or have their marriages recognized contrary to the law of their particular states.” If a stay is not granted, he argued, “there is likely to be a repetition in Idaho of the chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan.” Presumably, Judge Dale will issue a ruling on this motion before her order can go into effect on Friday morning, but if she hasn’t issued a stay by Thursday afternoon, the Governor and Attorney General will undoubtedly petition the 9th Circuit for quick action.

Already pending at the 9th Circuit is an appeal by gay rights advocates of a pre-Windsor adverse ruling in the Nevada marriage equality case. That had been scheduled for argument in April, but the argument was postponed after a member of the circuit court asked to poll the entire Circuit on whether to reconsider the “heightened scrutiny” ruling in SmithKline Beecham v. Abbott Laboratories, which would obviously affect that case and subsequent marriage equality appeals. The time for briefing and polling having passed with no announcement by the court, it seems likely according to some observers that a majority of the court did not agree to reconsider that case, and the release of an order to that effect is likely awaiting the completion of a dissenting opinion by the judge who requested the poll and those who agreed with that judge. It is likely that the Nevada appeal will finally be heard over the summer, and perhaps in light of the timing will be heard by the same panel that will hear Governor Otto’s appeal of the Idaho ruling, following the pattern embraced by the 10th Circuit when it assigned the Utah and Oklahoma cases to the same three-judge panel.

Meanwhile, marriage equality suits are pending in trial courts within the 9th Circuit in Arizona, Oregon, and Alaska. In Oregon, a summary judgment argument has been held, while the court considers a motion to intervene by the National Organization for Marriage, which despite its name is an organization specifically formed to oppose marriage equality. If the court grants that motion, it would have to hold another summary judgment hearing before a decision could be rendered on the merits. NOM claims to represent several Oregon residents who could assert standing to intervene, including at least one county clerk who is not ready to have their name made public. Since the named defendants in the Oregon case agree with the plaintiffs, in the absence of an intervenor with legal standing a decision by Judge Michael McShane in favor of the plaintiffs could not be appealed to the 9th Circuit. Anticipating that possibility, Judge McShane raised the question at oral argument whether he should stay his own decision until the 9th Circuit has ruled on a marriage equality case from another state. [Update: On Wednesday, May 14, Judge McShane denied NOM’s intervention motion. That means he will move directly to deciding the motion for summary judgment.]

Four same-sex couples are plaintiffs in the case: Susan Latta and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. Some of them seek to marry, while others, already married out-of-state, seek recognition of their marriages. They are represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights, which had represented plaintiffs in the California marriage litigation that concluded with a historic marriage equality ruling by the California Supreme Court in 2008.