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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.


Court of Appeals Argument on Utah’s Appeal of Marriage Ruling Points to Variety of Potential Outcomes

Posted on: April 11th, 2014 by Art Leonard No Comments

A panel of three judges of the U.S. Court of Appeals for the 10th Circuit in Denver heard oral arguments on Thursday, April 10, in Utah’s appeal of a December ruling by U.S. District Judge Robert Shelby that the state’s constitutional and statutory ban on same-sex marriages is unconstitutional. Because both Judge Shelby and a 10th Circuit panel had refused to stay that ruling pending appeal, more than 1,000 same-sex couples married in Utah before the Supreme Court granted a stay on January 6. As usual at such hearings, the court did not indicate directly how it would rule, and an opinion is likely months away, not least because this panel will reconvene on April 17 to hear Oklahoma’s appeal of a similar district court ruling and might decide to combine the two cases in one opinion.

However, the questions and answesr and dialogue between the judges and the lawyers provided insights into the thinking of the judges about how the case might be decided. Perhaps most surprising to those in the courtroom or listening to the recording that the court quickly posted to its website, the court might not even decide the case on the merits, as judges raised questions about “standing” more than once, and one judge suggested that perhaps the case should not have been decided by Judge Shelby on a summary judgment motion because of disputed facts that might be relevant to a final decision.

The issue of standing occupied center stage last June when the Supreme Court ruled in Hollingsworth v. Perry that the federal appeals courts lacked jurisdiction to rule on California’s Proposition 8 same-sex marriage ban because the supporters of that ban, who had appealed the district court’s decision striking it down, lacked “standing” to do so. “Standing” is a principle of federal constitutional law that requires the party who files a lawsuit or who seeks to appeal a trial court decision to have a personal stake in the outcome of the case, not merely a theoretical or generalized interest in how the case would be decided. For example, in right-to-marry cases, the plaintiffs are couples whose right to marry is being denied by the state, so they clearly have standing to file suit against a public official, such as a county clerk, who refuses to issue them a marriage license. Courts are divided, however, over whether they can file suit against a state governor or attorney general, as neither of those officials plays a direct role in issuing marriage licenses or administering the state’s marriage laws. This turns into a “standing” issue on appeal of a trial decision in favor of plaintiffs, when the standing issue shifts to the defendants who are appealing. A county clerk clearly has standing to appeal, since issuing marriage licenses is a function of their job, and county clerks are the only appellants in the Virginia marriage equality case now pending in the 4th Circuit in Richmond. But in the Utah case, the appellants are the governor and attorney general. Although the Salt Lake County clerk, who denied licenses to the plaintiffs, was a defendant in the trial court, she did not join in the appeal, and the attorney who appeared for the state, Gene Schaerr, presented himself as representing Governor Gary Herbert and Attorney General Sean Reyes.

This led the court to pose the “standing” question to both sides. If neither Governor Herbert nor Attorney General Reyes has personal responsibility for the enforcement of the marriage laws, is the case properly before the court of appeals? The question here is different from that posed in Hollingsworth, because in that case the appellants were private parties, not government officials, who clearly had no personal stake in the outcome in the sense that their personal lives would not be affected by the result. Even then, the Supreme Court split 5-4 over the standing question, the dissenters arguing that the California Supreme Court’s advisory opinion stating that initiative proponents could represent the state in defending their initiative provided a sufficient basis for standing. In this Utah case, the question is “closer” since the governor and attorney general have taken oaths binding them to defend the state’s constitution and faithfully enforce its laws, and they would have a similar responsibility were Judge Shelby’s decision upheld. Neither party in this case had raised standing as an issue, and Peggy Tomsic, the plaintiff’s lawyer, agreed with Schaerr in arguing to the court that there was no problem with standing. Among other things, she appointed out that ultimately the governor and attorney general did have supervisory authority over the county clerks and could direct them regarding their role in issuing or denying licenses. Similarly, the governor and attorney general would likely play a role in supervising or directing agencies confronted with the question whether to recognize same-sex marriages from other jurisdictions, which is also an issue in this case. Indeed, it seems unlikely that the court would shy away from a ruling on the merits based solely on “standing.” Surely, the chief executive and chief law enforcement officer of a state have a direct interest in appealing a trial court’s ruling that state constitutional and statutory provisions violate the federal constitution.

The state itself is not a defendant in this case, because the federal constitution has been interpreted by the Supreme Court as barring citizens from suing their own state government in federal court. Thus we have the “legal fiction” of suing state officials in their “official capacity” in order to challenge the constitutionality of a state law. Due to standing concerns, the federal courts insist that particular officials can only be sued if there is a close connection between the law at issue and their official duties. Some federal courts have dismissed marriage lawsuits that were brought against governors and attorney generals when the plaintiffs did not also sue the state official with direct authority to administer the marriage laws or a county clerk who had actually denied the plaintiffs a marriage license, out of this concern for “standing.” For example, in Pennsylvania, Governor Tom Corbett was removed as a defendant in the pending marriage equality cases for this reason, and in Louisiana a federal court dismissed a marriage equality case where the only individual sued was the attorney general. The Supreme Court raised a “standing” concern in the DOMA case (U.S. v. Windsor) as well, asking whether the United States, as represented by the Solicitor General, had “standing” to appeal a lower court decision with which the government agreed, for lack of any actual “case or controversy.” Ultimately the Supreme Court found that the government has a real interest in having a binding ruling by the Supreme Court when a lower court declares a federal statute unconstitutional. The same logic should hold in this case. Even if Herbert and Reyes were not necessary defendants at the trial court level, they would surely have a direct interest in their official capacities to appeal a ruling striking down state laws.

The other suggestion floated by the court that could defer a ruling on the merits was that Judge Shelby should not have ruled on the motion for summary judgment because a trial was necessary in order to determine facts that were in dispute. Judges are supposed to grant summary judgment motions only when material facts are undisputed and there is no need for an evidentiary hearing to resolve factual disputes. At least one 10th Circuit judge questioned whether the plaintiffs and defendants actually agreed about all the facts necessary to decide this case. Interestingly, the recent marriage equality ruling from Michigan followed the first trial on the subject since last June. Michigan District Judge Bernard Friedman had denied summary judgment motions last fall, having concluded that there were facts in dispute about the state’s justifications for banning same-sex marriage that would have to be resolved if the case was being decided using the “rational basis” test, and the judge eventually ruled on the merits only after the trial had been concluded. The hearing was focused on expert testimony from both sides about the potential impact of allowing same-sex marriages on child-rearing results, and the judge concluded in his opinion that the state’s witnesses on the issue were “unbelievable.” If the 10th Circuit panel finds that there remain disputed issues of material fact, it could send the case back to Judge Shelby with directions to hold a trial on the disputed points.

However, it seems unlikely that the court will conclude that this is necessary, when all but one of the marriage equality rulings that have been issued since the Windsor decision last June have come from summary judgment motions, with only the Michigan case following a trial. Numerous federal judges have taken the position that this issue can be decided as a question of law based on undisputed facts or, perhaps more accurately, based on a finding that even if the state is correct about its factual assertions, they don’t justify denying the right to marry to same-sex couples. While Judge Friedman’s finding that expert testimony presented by Michigan was “unbelievable” is not binding on the 10th Circuit, it seems to have carried significant weight with Utah’s attorney, Gene Schaerr, who sent a letter to the court earlier in the week noting that his brief had cited the so-called Regnerus study but that he was not relying on it to prove that parenting by same-sex couples is inferior to parenting by different-sex couples.

As to the merits of the case, to the best one might conclude from hearing the argument, it seemed unlikely that there would be a unanimous decision one way or the other. Judge Carlos Lucero, a veteran of the court who was appointed by President Bill Clinton, clearly indicated by his questioning and comments that he most likely supported the plaintiffs’ position, while Judge Paul J. Kelly, Jr., who was appointed by President George W. Bush, seemed more disposed towards the state’s position, although he posed many fewer questions making it harder to discern his views. The tie-breaker may end up being another Bush appointee, Judge Jerome A. Holmes, who questioned both sides quite sharply, making it difficult to predict where he will come to rest.

Clearly, all the judges seemed to agree that the threshold question of the level of judicial scrutiny would likely determine the outcome of the case. In 2008, the 10th Circuit ruled in Price-Cornelison v. Brooks, 524 F.3d 1103 (2008), that a local law enforcement official had no rational basis for refusing to enforce an order of protection obtained by a lesbian and, in passing, observed that heightened scrutiny would not apply because the case did not involved a “protected class” under the Equal Protection Clause. Based on that, this 10th Circuit panel is bound to apply the rational basis test, the lowest level of judicial scrutiny, to sexual orientation discrimination cases, unless subsequent legal developments mandate a higher standard or this case is viewed as involving something other than just a sexual orientation discrimination claim. Thus, the question whether the Supreme Court’s decision last year in U.S. v. Windsor established a higher standard of review that would apply to this case was a central issue in the argument and may determine the outcome, since the judges might agree, as at least one suggested during the argument, that the Utah ban would survive the traditional rational basis test, which is very deferential to the state.

It was frustrating to listen to the questions and answers on this point, because they failed to come to grips with what Justice Anthony Kennedy wrote and did in his opinion for the Supreme Court in the Windsor case. Kennedy did not state that Windsor involved a fundamental right to marry or a suspect classification based on sexual orientation. Rather, he treated it as a case in which Congress discriminated against same-sex couples by excluding them from the recognition of their state-law marriages with the result that they were deprived of numerous federal rights and benefits. It was not just a sexual orientation discrimination case. Rather, it was a case of intentional unequal treatment of a defined portion of the population, having direct and wide-ranging adverse effects, and the Court concluded that none of the arguments mounted in favor of Congress’s policy decision were sufficient to justify the magnitude of the deprivation. As in his prior gay rights opinions, Romer v. Evans and Lawrence v. Texas, Kennedy avoided invoking the categories and classifications that the Court had used in prior cases involving race or sex discrimination, instead applying a mode of judicial review particularly tailored to the issues before the Court.

Lower federal courts have difficulty applying such precedents, because, being bound by Supreme Court opinions, they are looking for clear direction about the application of existing doctrinal categories, and they are not getting such clear direction because Kennedy did not speak in terms of these categories. However, this observer suggests that Windsor bears directly on the question before the 10th Circuit in this case, because the Court, in effect, applied something like heightened scrutiny in case where Congress was discriminating against same-sex couples regarding an important social status and set of rights and benefits. Kennedy referred disparagingly to “second tier marriages” that enjoyed state but not federal recognition, and wrote about the specific stigma and burdens imposed upon children whose parents’ marriages were not recognized. He emphasized the failure of the federal government to recognize the “dignity” that legal state marriages conferred on same-sex couples. In this sense, Windsor is very much like Romer, the Colorado Amendment 2 case from 1996. A state constitutional amendment or statute that discriminates on its face against a distinct group of people must have a legitimate policy justification, and that justification must have some logical connection to the discrimination at issue.

Thus, if a state’s concern is that the “best” setting for raising a child is a family headed by a husband and a wife, it would have to show not just that this is a legitimate policy concern, but also that banning same-sex couples from marrying is a way of effectuating that policy. Schaerr was reduced to arguing that letting same-sex couples marry would send subtle messages to boys that would somehow undermine their masculinity, leading them to become bachelor outlaws. (This is a paraphrase, but not off the mark.) The state offers no factual support for this argument, merely hypothesis, and admits that the phenomenon of same-sex marriage is too new for there to be any proof that it will have this effect, as the right to marry in the United States dates back only to May 2004 when the Massachusetts Goodrich decision went into effect, and same-sex marriages in Canada and the Netherlands only began a year or two earlier. If the right to marry is a recognized constitutional right, Tomsic argued, it could not be trumped by such unproven speculation. The state should have to show that allowing same-sex couples to marry would have some sort of deleterious social effect. This certainly hasn’t manifested itself in the near-decade since same-sex couples began marrying in Massachusetts, and so far every federal judge confronting this argument since the Windsor decision has rejected it. Tomsic pointed out that the same sort of justifications were voiced by members of Congress in 1996 when they voted for DOMA, and the Supreme Court found them insufficient to justify withholding federal recognition from same-sex marriages.

Justice Antonin Scalia, in his dissenting opinion in the DOMA case, saw Kennedy’s approach in Windsor as leading ineluctably to a constitutional right for same-sex couples to marry. Chief Justice John Roberts disagreed, insisting that the case was a “federalism” case that respected the right of states to decide who could marry. But Kennedy was clear in writing that the state’s right to determine who could marry was subject to constitutional requirements of equal protection and due process, and that, in line with the reasoning in Windsor, the state would need good justifications to exclude same-sex couples from this right. Furthermore, Kennedy made clear that he was basing his opinion entirely on the 5th Amendment’s Due Process Clause and its equal protection component, and not on the concept of federalism as such, although federalism concerns clearly entered into the equation.

So far, every federal trial judge who has ruled in a marriage equality case has agreed (with Scalia) that the reasoning of Kennedy’s opinion for the Court requires striking down state bans on same-sex marriage. If the 10th Circuit ends up being divided on this question, it will be the first time since last June that any federal judge has not reached that conclusion after more than half a dozen trial court rulings.

The one certain thing about the 10th Circuit’s opinion, however, is that it will not mark the end of the case. If there is no standing for an appeal, Judge Shelby’s decision would stand as unappealed, unless Governor Herbert could persuade the full 10th Circuit to take up and reverse the panel’s decision, or even take the issue directly to the Supreme Court. The Supreme Court’s stay of Judge Shelby’s order was issued pending a ruling by the 10th Circuit, so by its terms it would expire upon the 10th Circuit issuing a decision, and the state would have to go back to get it renewed. If the case is sent back to Judge Shelby for trial, this litigation may become moot when the Supreme Court eventually rules on a case from another circuit. If the 10th Circuit rules on the merits, the losing party will certainly either seek review from an expanded panel of judges (en banc review) or petition the Supreme Court for review. So the 10th Circuit judges know that their ruling, while momentous in the short term, will likely be about as significant in the long run as the 2nd Circuit’s ruling in U.S. v. Windsor — a footnote to history.

Marriage Equality Case Developments Come Hot and Heavy

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

As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.

On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.

First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.

News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.

Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.

Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.

There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.

The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.

At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!

There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.

The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.

Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.

So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.

Bush Appointees Split Over Stay of Michigan Marriage Ruling

Posted on: March 26th, 2014 by Art Leonard No Comments

A panel of three federal judges, all appointed by George W. Bush, were split 2-1 about issuing a stay of the U.S. District Court’s ruling that Michigan must allow same-sex couples to marry. Circuit Judge John M. Rogers and Kentucky Chief District Judge Karen Caldwell voted to grant the state’s motion for a stay, while Circuit Judge Helene White dissented.

The approach of the majority seemed to be “Ours is not to reason why,” as they punted on applying the four-factor test that courts in the 6th Circuit normally apply in determining whether to stay a district court ruling pending appeal.

The four factors are: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. Rather than evaluating these factors, the court said “these factors balance no differently than they did in Kitchen v. Herbert,” the Utah marriage case. In that case, the Supreme Colurt ordered a stay. Thus, the majority of this panel punted to the Supreme Court, saying, “There is no apparent basis to distinguish this case or to balance the equities any differently than the Supreme Court did in Kitchen.” They also noted that several district courts in other cases had stayed their rulings, including a Kentucky case headed to the 6th Circuit on appeal.

The problem is that the Supreme Court provided no explanation of how it had weighed the factors, or even whether it had done so. And so Judge White, finding no guidance in the Kitchen ruling, went ahead to weigh the factors herself. “Michigan has not made the requisite showing,” she wrote. In light of the lack of specific guidance from the high court, “I would therefore apply the traditional four-factor test, which leads me to conclude that a stay is not warranted.”

What nobody can bring themselves to say explicitly is that when issues like this get to the Supreme Court, the decision to issue a stay is as much a political decision as a legal decision and, indeed, in this case the Supreme Court provided no legal reasoning because it seems that its decision to stay the Utah ruling was political. Any honest evaluation of the traditional four factors would produce little support for the stay, in light of the Supreme Court’s ruling in U.S. v. Windsor.

But there we have it. No more same-sex marriages in Michigan until there is a final appellate resolution. Although this 6th Circuit panel granted the motion to stay the district court’s order “pending final disposition of Michigan’s appeal by this court,” nobody can believe that the stay would immediately end if a 6th Circuit panel affirms Judge Bernard Friedman’s decision, for such a 6th Circuit ruling would be stayed to allow the state time to petition the Supreme Court for certiorari, and then stayed pending disposition by the Supreme Court. However, it seems likely that the 10th or 9th Circuits will render decisions that work their way to the Supreme Court before the 6th Circuit does, since the 10th Circuit will hear arguments in April in the Utah and Oklahoma cases and the 9th, which is on an expedited schedule with the Nevada case, should be hearing arguments soon after. The 4th Circuit may also decide the Virginia case before the 6th gets to Michigan (and Kentucky and Tennessee). Nobody knows which case will ultimately get to the Supreme Court. But as a practical matter, it seems likely that same-sex marriages will not resume in Michigan until the Supreme Court issues a ruling on marriage equality, most likely in the spring of 2015.

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:

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.

Utah Plaintiffs Strongly Counter State’s Supreme Court Stay Application in Marriage Equality Case

Posted on: January 4th, 2014 by Art Leonard No Comments

Today the attorneys for the plaintiffs in Kitchen v. Herbert, the Utah marriage equality case, filed their opposition with the Supreme Court to the state’s application for a stay of the trial court ruling.

Under the trial court ruling, issued on Dec. 20, same-sex marriages began happening in Utah that date.  On December 23, the trial judge, Robert Shelby, denied the state’s motion to stay his ruling pending appeal.  Two days later, a panel of two 10th Circuit judges rejected the state’s request to stay the ruling, finding a stay was “not warranted” under the rules applied by the Circuit to such requests.

A week later, on December 31, the state filed an application with Justice Sonia Sotomayor, the Supreme Court Justice assigned to hear applications out of the 10th Circuit, seeking a stay.  The state argued that the district court’s decision was an “affront” to the dignity of the state, imposing irreparable harm, and that under Supreme Court precedents they were entitled to a stay if there was a fair possibility that they would win in their appeal on the merits and that the Supreme Court was likely to hear the case if the state lost its appeal in the 10th Circuit.

The Memorandum in Opposition filed today by Magleby & Greenwood, P.C., the Salt Lake City firm representing the plaintiffs, blows the state’s arguments out of the water, in the opinion of this writer.  They argue persuasively that the state’s Application mischaracterized the Supreme Court’s standard for a stay in this kind of situation, where an appeal is pending before the court of appeals, which has refused to stay the trial court’s order, and the court of appeals has expedited consideration of the state’s appeal.  They show that the Supreme Court imposes a very high burden on a party requesting a stay under such circumstances.  It’s not enough to show that the state might win their appeal.  They have to show that the court of appeal’s rejection of their request for a stay was “demonstrably wrong”.   They also devote a large part of the memorandum to showing how the district court’s decision was consistent with the developing case law under the 14th Amendment, and thus likely to be upheld on appeal by the 10th Circuit.  Also, noting the plethora of other marriage equality cases now under way around the country (including, most notably, the Nevada case now pending before the 9th Circuit), they point out that it is entirely speculative that the Supreme Court will review this case if the state loses its appeal in the 10th Circuit.  It is just as likely that one of the other cases will be the one to go up to the Supreme Court, if indeed the Court decides to grant review.  They show that the state’s argument that the Supreme Court will surely review a lower court decision striking down a state law as unconstitutional was based on old cases that have been superseded by a statute enacted by Congress rejecting the idea that the Supreme Court should automatically review lower court decisions striking down state laws.

They also show that the state misrepresented the academic literature on parenting by gay couples, calling Utah’s characterization as “false” — you can’t get more confrontational than that.

If the Supreme Court is going to decide this application based on “the law,” I think they will deny the stay.  If they treat this as more of a political issue, it is more difficult to predict, but the plaintiff’s opposition memorandum strikes me as more persuasive than the Application filed by the state.   Justice Sotomayor could decide the application on her own, or she could refer it to the full Court.