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Posts Tagged ‘Kansas marriage equality’

Kansas’ Narrow Interpretation of Obergefell Rejected by Federal District Court

Posted on: July 25th, 2016 by Art Leonard No Comments

U.S. District Judge Daniel D. Crabtree, who had ruled on November 4, 2014, that the Kansas constitutional amendment and statutes banning same-sex marriage were unconstitutional, has issued a final ruling in that case, Marie v. Mosier, 2016 WL 3951744 (D. Kan., July 22, 2016), effectively finding that Kansas officials cannot be trusted to comply voluntarily with the Supreme Court’s marriage equality ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), without the prod of an injunction that would subject them to contempt proceedings if they fail to comply fully.  In light of the initial refusal by the state to issue appropriate birth certificates for children of lesbian couples, and continuing ambiguity about how state officials will handle such situations, the court rejected the state’s argument that the lawsuit should be dismissed as “moot” or that its prior rulings should be vacated as unnecessarily in light of Obergefell.

When Judge Crabtree issued his preliminary injunction in 2014, the 10th Circuit Court of Appeals, which has jurisdiction over Kansas, had already issued rulings prohibiting Oklahoma and Utah from enforcing their laws against same-sex marriage, and the U.S. Supreme Court had refused to review those rulings on October 6, 2014, so they had gone into effect.  Shortly afterward, however, the 6th Circuit had ruled against marriage equality, and in January 2015 the Supreme Court announced it would review that decision.  On June 26, 2015, the Supreme Court ruled in Obergefell that same-sex couples were entitled to the same marriage rights under state law as different-sex couples.  After Obergefell, the Kansas defendants moved to dismiss Marie v. Mosier as “moot,” but the plaintiffs moved instead to have the court issue a declaration that the Kansas ban on marriage equality was unconstitutional and to issue an injunction requiring the state to comply with Obergefell.  This responded to an argument that was being made by some marriage equality resisters that the Supreme Court’s decision applied only to states in the 6th Circuit, and to the announced opposition to the Supreme Court’s decision by Kansas Governor Sam Brownback and other Kansas officials.  The plaintiffs feared that Kansas would not give full effect to the “equality” requirement of the Supreme Court’s decision, despite assurances by the state’s attorney that it would do so.

At that time, Judge Crabtree decided to give the state the benefit of the doubt. On August 10, 2015, he issued a declaratory judgment, but withheld injunctive relief to give the state time to comply voluntarily.  Voluntary compliance did follow in many respects, such as issuing marriage licenses, but the plaintiffs responded to the state’s contention that it had complied voluntarily by bringing to the court’s attention two instances in which state officials had refused to issue birth certificates listing both mothers of children born to married lesbian couples.  Indeed, in one of those cases the mothers had gone into state court to get an order to issue an appropriate birth certificate, and the state initially resisted the state court order.  Subsequently both of those cases were resolved by the state issuing appropriate birth certificates, but contradictory statements issued from officials of the Kansas Department of Health and Environment, one suggesting that in future same-sex couples would be treated the same as different-sex couples when children were conceived through donor insemination, but the other stating that same-sex couples would have to alert the department in advance so that a case-by-case determination could be made about whether a birth certificate listing both women would be issued.

Judge Crabtree concluded that the case was not “moot” and an injunction was necessary. In this case, there was clear evidence that state officials were complying reluctantly with Obergefell, sometimes only under the prodding of court orders, so the court could not conclude that there was no longer an issue of whether same-sex couples in Kansas could expect to receive equal treatment from all instrumentalities of the state government in all circumstances.

“Exercising its remedial discretion,” wrote Crabtree, “the court has decided to grant a permanent injunction forbidding defendants (and their successors) from enforcing or applying any aspect of Kansas law that treats same-sex married couples differently than opposite-sex married couples. As the court noted last August, a significant value exists in giving public officials a reasonable opportunity to comply voluntarily with a mandate by the Supreme Court.  The record here shows that defendants have said they will comply with Obergefell and, in many instances, they have acted to implement the changes that compliance requires.  But even after Obergefell and even after this court’s declaratory judgment, the record also demonstrated one defendant’s department deliberately refused to treat two same-sex married couples in the same fashion it routinely treats opposite-sex couples.  This disparate treatment did not result from oversight, inadvertence, or decisions made at lower levels of the department.  To the contrary, the conduct involved officials who the court would expect to know about Obergefell, this court’s preliminary injunction [from 2014], and the defendants’ assurances that they intended to comply with Obergefell.  This conduct required one same-sex couple to file an action in state court to get something that an opposite-sex couple would have received as a matter of course.”

In reaching this conclusion, Judge Crabtree listed the decisions by judges in numerous other states who issued permanent injunctions against those states after the Obergefell decision upon finding that the cases were not “moot” because of actual or potential failures of those states fully to comply with Obergefell’s equality mandate.  These included decisions from Alabama, Florida, Nebraska, Arkansas, South Dakota, Idaho, and Louisiana.  The only court to reach a contrary conclusion was in South Carolina, where the state government had quickly fallen into line after the Supreme Court refused to review the 4th Circuit’s decision in the Virginia marriage equality case.  Given the birth certificate contretemps in Kansas, the case was clearly distinguishable.

Crabtree sympathized with the plaintiffs’ concern about “whether defendants will comply voluntarily with Obergefell without the judicial oversight that an injunction permits.”  His response to this concern was to provide that the court will maintain supervisory oversight for three years, which means that at the first sign that a government official in Kansas is denying equal treatment to a same-sex couple, direct application can be made to Judge Crabtree for relief without the need to run into state court and start a new lawsuit.  “The court finds that permanent injunctive relief could prevent future same-sex married persons from having to do what the Smiths had to do,” he wrote: “initiate a separate lawsuit and incur expenses to secure the equal treatment that Obergefell promises.”

In rejecting the defendants’ argument that Obergefell was a narrow ruling that did not address the issue of birth certificates for children born to same-sex couples, Crabtree pointed out that Justice Anthony Kennedy’s opinion for the Supreme Court specifically mentioned this issue!  “The Supreme Court found that the rights, benefits, and responsibilities of marital status include ‘taxation; inheritance and property rights; spousal privilege; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; health insurance; and child custody, support, and visitation rules.’”  By quoting from the Obergefell opinion, Crabtree made clear that Kansas may not impose any different treatment on same-sex couples regarding any of these issues without running afoul of Obergefell.

He also rejected the bizarre argument made by Kansas that one lesbian married couple that encountered birth certificate issues was not entitled to recognition of their marriage under Obergefell because they were married in Canada and the Full Faith and Credit Clause refers on to other states.  Judge Crabtree pointed out that Kansas’s own marriage recognition statute provides that “all marriages which would be valid by the law of the country in which the same are contracted, shall be valid in all courts and places in this state.”  If Kansas automatically recognizes different-sex marriages contracted in other countries, Obergefell’s equality requirement would mandate application of this rule to same-sex marriages.

“In sum,” wrote Crabtree, “defendants’ argument that Obergefell’s holding was narrow is unpersuasive,” and he quoted Justice Kennedy’s comment that a “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples would deny gays and lesbians many rights and responsibilities intertwined with marriage.”  “Perhaps defendants will provide the voluntary compliance with Obergefell that they promise,” Crabtree wrote.  “But the court cannot assign plaintiffs’ constitutional rights to such uncertainty.  In short, defendants’ assurances of future compliance do not provide the reliability that those rights deserve.”

The last issue before the court was an award of attorneys’ fees to the plaintiffs. He ordered them to submit their fee bill promptly, and if Kansas disputes the amount (which they will likely do, since the state’s budget has been decimated by Governor Brownback’s unrealistic tax-cutting measures, which have led, among other things, to a crisis in school funding that caused a confrontation with the state’s Supreme Court), Judge Crabtree will address the issue promptly.

Supreme Court Lets Kansas Marriage Decision Go Into Effect

Posted on: November 13th, 2014 by Art Leonard No Comments

When U.S. District Judge Daniel D. Crabtree ruled on November 4 in Marie v. Moser, 2014 WL 5598128, 2014 U.S. Dist. LEXIS 157093, that Kansas’s ban on same-sex marriage was unconstitutional, he issues a preliminary injunction directing the defendants not to enforce the ban, but stayed the effect of this Order until 5 pm on November 11 to give the state time to seek a stay from the 10th Circuit or the Supreme Court.  Judge Crabtree had rejected the state’s argument that he should stay his own ruling until such time as the state could get it reviewed on the merits by an appellate court.  The obvious reason for refusing such a stay was that the 10th Circuit Court of Appeals has already ruled in two other cases that state bans on same-sex marriage are unconstitutional, and the Supreme Court refused to review both decisions as well as similar rulings from other circuits.  Thus, any appeal on the merits would most likely be a waste of time, undertaken mainly for the purpose of delaying implementation of the court’s order.

The 10th Circuit turned down the state’s request for a longer stay on November 7.  The Supreme Court, after extending Judge Crabtree’s stay briefly so that the Court could consider the application and the plaintiffs’ Response, denied the state’s request around 5 pm on November 12.  Only Justices Scalia and Thomas indicated that they would have granted the request for a longer stay pending final resolution of the issue by an appellate court, so the vote was 7-2 to deny the stay.  Thus, Judge Crabtree’s opinion goes into effect.

But what does that mean “on the ground” in Kansas?  The named defendants in the case, who are enjoined from enforcing the state’s ban, are Robert Moser, the Secretary of the Kansas Department of Health and Environment, Douglas Hamilton, the Douglas County Clerk, and Bernie Lumbreras, the Sedgwick County Clerk.  Hamilton and Lumbreras were named as defendants because their offices turned down marriage license requests by the plaintiffs.  Moser was named as a defendant because his department is the operative agency of state government in Kansas with responsibility for administering the marriage license and marriage recordation process.  The lawsuit did not name the governor or attorney general as defendants because they do not have any direct operative responsibility with respect to these functions.

However, even after the Supreme Court denied the stay request, some in Kansas are arguing that only the Douglas and Sedgwick County Clerk offices are obliged to issue marriage licenses, on the theory that none of the other clerks were directly enjoined by Judge Crabtree.  Other clerks are saying they will not move on this until ordered by higher authority.  This is silly and obtuse.  But it can be quickly cured.  Judge Crabtree was ruling on a motion for a preliminary injunction.  The ACLU, which represents the plaintiffs, can now move to make the preliminary injunction permanent, and can specifically request that the judge frame his order to bind all Kansas state officials, in compliance with the 10th Circuit’s finding in the Utah and Oklahoma cases that state bans on same-sex marriage violate the fundamental right of same-sex couples to marry.

Another point worth making.  In resisting the court’s order and announcing that Kansas will appeal to the 10th Circuit seeking en banc review, Governor Sam Brownback emphasizes his oath to protect and defend the Constitution of the State of Kansas, which includes a provision banning same-sex marriage.  He conveniently overlooks that his oath of office also requires him to protect and defend the Constitution of the United States, which by its Supremacy Clause overrides the Kansas Constitution where there is any conflict.  Judge Crabtree has applied binding 10th Circuit precedent to find that there is such conflict, and the Supreme Court has refused to stay his decision.  It sounds like the governor’s compliance with his oath — his entire oath, since Kansas is, at least for now, part of the United States — mandates compliance with the court’s order.  Of course, the losing party in a district court proceeding has a right to seek appellate review.  But seeking appellate review from the same judicial body that has twice rejected all the arguments being raised by Kansas in its decisions from other states seems like a delaying tactic more than anything else.

Why seek delay?  Obviously, to try to string things out in the hope that the Supreme Court will eventually affirm the 6th Circuit Court of Appeals’ November 7 ruling holding that state bans on same-sex marriage do not violate the constitution, the first dissenting opinion by a circuit court on this issue since 2006 and contrary to the views of the 4th, 7th, 9th and 10th Circuits, relying in part on the reasoning underlying the Supreme Court’s decisions in U.S. v. Windsor (2013) and Lawrence v. Texas (2003).  If Brownback and Company can string things out that long, they would never have to allow same-sex marriage in Kansas.  But actions taken primarily for purposes of delay are certainly disfavored in American law.

Kansas Marriage Equality Ruling May Go to the 10th Circuit for En Banc Review

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

U.S. District Judge Daniel Crabtree ruled on November 4 in Marie v. Moser that the Kansas ban on same-sex marriage violates the 14th Amendment.  The Obama appointee, who has been a federal judge for less than a year, rejected the state’s argument that the U.S. Supreme Court’s 1972 ruling in Baker v. Nelson “controls the outcome here” and instead applied the recent decisions by the 10th Circuit Court of Appeals, Kitchen v. Herbert and Bishop v. Smith, which struck down Utah’s and Oklahoma’s s same-sex marriage bans as a violation of the 14th Amendment.  The Supreme Court denied petitions to review those rulings on October 6, making them the binding precedent for all federal courts within the 10th Circuit, including Kansas.

Before the Supreme Court’s announcement, the only state in the 10th Circuit where same-sex couples could marry was New Mexico, as a result of a 2013 ruling by that state’s highest court.  After October 6, same-sex couples began marrying in Utah and Oklahoma, and soon thereafter federal district court rulings in Wyoming and Colorado led to marriage equality in those states, leaving Kansas the last state in the circuit resisting the marriage equality tidal wave.

Litigation in Kansas proceeded on parallel tracks.  An existing marriage equality case was going nowhere fast, so the ACLU of Kansas filed this new lawsuit, Marie v. Moser, on behalf of two same-sex couples seeking the right to marry in the state, naming as defendants Kansas Secretary of Health and Environment Robert Moser, whose department is responsible for administration of the state’s marriage laws, and two county clerks whose offices were unwilling to allow same-sex marriages by the two couples.  Meanwhile, Chief Judge Robert Fairchild of the state’s Seventh Judicial District (Douglas County) issued an administrative order requiring the Douglas County clerk to issue licenses to same-sex couples, relying on the Supreme Court’s denial of review for the 10th Circuit rulings. Kansas Attorney General Derek Schmidt promptly applied to the Kansas Supreme Court for an ruling invalidating Fairchild’s order.  That court stated that the Douglas County clerk could continue to accept license applications, but none should be processed until the Supreme Court could hold a hearing to determine whether Fairchild exceeded his authority and whether, indeed, the 10th Circuit precedent overrides Kansas law and requires the state to allow same-sex marriages. The Supreme Court set that hearing to take place on November 6.

Meanwhile the ACLU pushed forward quickly with a motion for preliminary injunction in its case.  Judge Crabtree held a hearing on the motion on October 31.  Attorneys for the state urged Crabtree to abstain from deciding the case while the matter was pending before the Kansas Supreme Court, and he devoted much of his November 4 ruling to refuting the state’s various arguments as to why the federal court should let this issue be decided first by the state court.  This is why it took Crabtree 38 pages of legal analysis to decide a case that, at least as to the merits, has already been decided.  He spent little time in his opinion on the merits, and almost all his time on issues of standing, jurisdiction, justiciability and federal abstention, ultimately concluding that none of the state’s technical arguments would justify delaying his ruling in light of the 10th Circuit’s clear precedent.

“At the preliminary injunction hearing,” he wrote, “defendants’ counsel tried to differentiate Kansas — and its same-sex marriage ban — from the Utah and Oklahoma provisions nullified in Kitchen and Bishop.  He argued that Kansas, by statute, recognizes common law marriage and plaintiffs could achieve married status under the common law variant of marriage.”  This is an outright falsehood, of course, as Kansas has never applied the doctrine of common law marriage to same-sex couples and has not indicated any willingness to do so prior to this hearing. “This argument,” continued Crabtree, “even if accurate, proves too much.  On its best day, this argument contends that Kansas’ common law marriage alternative provides same-sex couples access to a separate but equal classification of marriage.  That is, opposite-sex citizens can marry by either statutory or common law marriage while same-sex couples must confine their marriages to the common law alternative.  Thus, defendants’ alternative way of looking at the same-sex ban still denies plaintiffs equal protection of Kansas’ marriage laws.”  And, he concluded, “Because Tenth Circuit precedent is binding on this Court, Kitchen and Bishop dictate the result here.”

However, acknowledging that his refutation of the various procedural arguments had an outside chance of catching the attention of the 10th Circuit, Crabtree acceded to the state’s request that he stay any ruling to give them time to file an appeal.  “Defendants’ stay request presents a relatively close call,” he wrote.  On the one hand, the 10th Circuit “has settled the substance of the constitutional challenge plaintiffs’ motion presents” and “under the Circuit’s decisions, Kansas law is encroaching on plaintiffs’ constitutional rights.  But defendants’ arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations.  On balance, the Court concludes that a short-term stay is the safer and wiser course.”

Thus, Judge Crabtree stayed his order for one week until 5 pm on November 11 to give the state time to seek a longer stay pending appeal from the 10th Circuit.  Responding to the ruling, Attorney General Schmidt announced that the state would ask the 10th Circuit to take the case en banc, by-passing the usual three-judge panel to a hearing before the entire 10th Circuit bench of twelve active judges.  (Of those, five were appointed by President Obama, two by President Clinton, one by the first President Bush, and four by the second President Bush.)  Schmidt pointed out that neither Utah nor Oklahoma had asked for en banc review of the decisions in their cases by the same three-judge panel, and neither Colorado nor Wyoming appealed the recent district court rulings in light of the Supreme Court’s refusal to review the Utah and Oklahoma cases.  Thus, Schmidt found a glimmer of hope that Kansas might persevere as a bastion of traditional marriage in the 10th Circuit.  Both Schmidt and Governor Sam Brownback, staunch opponents of same-sex marriage, won re-election on the day that Judge Crabtree issued his opinion.

Update Note:  The 10th Circuit turned down the state’s request for a stay of Judge Crabtree’s decision on Nov. 7.  On Nov. 10, the state filed an application for a stay pending appeal with Justice Sonia Sotomayor at the Supreme Court, and she gave the plaintiffs until 5 pm on Nov. 11 to file their response, which the ACLU of Kansas accomplished with time to spare.  At the end of the workday on Nov 12, the Supreme Court rejected the state’s motion for a stay pending appeal.  Justices Scalia and Thomas noted that they would have granted the stay.