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Federal Courts in Missouri and West Virginia Issue Marriage Equality Rulings

Posted on: November 7th, 2014 by Art Leonard No Comments

On November 7, one day after the 6th Circuit Court of Appeals rejected marriage equality claims from Ohio, Michigan, Tennessee and Kentucky, federal district courts in Missouri and West Virginia issued new marriage equality rulings.  Chief U.S. District Judge Robert C. Chambers of the Southern District of West Virginia granted summary judgment to the plaintiffs in McGee v. Cole, a case brought by Lambda Legal and The Tinney Law Firm.  Senior U.S. District Judge Ortrie D. Smith of the Western District of Missouri granted summary judgment to the plaintiffs in Lawson v. Kelly, a case brought by the ACLU of Missouri Foundation.  Missouri will appeal.  West Virginia was already granting marriage licenses to same-sex couples, in compliance with the 4th Circuit’s ruling that the Supreme Court declined to review on October 6.  Thus, the West Virginia ruling could be seen as a formality, part of the “mopping up” process in the 4th Circuit.  But the Missouri decision staked out important new ground in the 8th Circuit.

Judge Chambers was appointed to the court by President Bill Clinton in 1997.  Judge Smith was appointed by President Clinton in 1995, and has been serving as a senior judge since 2011.

The most notable aspect of Judge Chambers’ ruling in West Virginia was the pointed rebuttal to 6th Circuit Judge Jeffrey Sutton’s opinion issued the previous day.  Sutton had argued that the decision whether same-sex couples can marry should be left up to the political process in each state, and not dictated by federal judges, a “wait and see” approach.  Countered Chambers, after noting that the 6th Circuit had “reached the opposite result” from the other circuit courts, “The majority there noted two rationales in support of the marriage bans.  First, the court found the marriage bans in Kentucky, Michigan, Ohio, and Tennessee to be rooted in the States’ interest in regulating procreation by providing incentives for parents to remain together.  But the opinion then conceded that this view of marriage can no longer be sustained, that marriage now serves ‘another value — to solemnize relationships characterized by love, affection, and commitment.’  Denying marital status and its benefits to a couple that cannot procreate does nothing to further the original interest of regulating procreation and irrationally excludes the couple from the latter purpose of marriage.  Second, the majority [in the 6th Circuit] implores opponents of the marriage bans to proceed slowly, through the legislative process, and justifies the bans by asserting the States’ right to take a ‘wait and see’ approach.  This approach, however, fails to recognize the role of courts in the democratic process.  It is the duty of the judiciary to examine government action through the lens of the Constitution’s protection of individual freedom.  Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states.  Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators.”

Take that, Judge Sutton!

Judge Smith’s decision is particularly significant because the 8th Circuit issued a decision in 2006, Citizens for Equal Protection v. Bruning, rejecting a constitutional challenge to Nebraska’s constitutional amendment banning same-sex marriage.  Ordinarily, one might easily assume that a trial judge within the 8th Circuit would be precluded from ruling in favor of the plaintiffs in a marriage equality case because of controlling circuit precedent.  A contrary argument could assert that Bruning is no longer a binding precedent in light of U.S. v. Windsor, but Judge Smith did not take that route.  Instead, he examined the issues at stake and decided in the Bruning case, and concluded that it did not control the issue before him.

In Bruning, some Nebraska citizens challenged the enactment of the state’s marriage amendment using an argument that had been accepted by the Colorado Supreme Court more than a decade earlier when it ruled against the constitutionality of that state’s Amendment 2, which prohibited the state from protecting gay people from discrimination.  The plaintiffs in Bruning argued that the amendment unconstitutionally deprived them of equal access to the political process by locking a different-sex definition of marriage into the state constitution, thus requiring them to achieve repeal of the amendment before they could approach the legislature to obtain same-sex marriage through the ordinary legislative process.  The 8th Circuit rejected their claim, and pointed out that the plaintiffs had not asserted a federal constitutional right to marry in their challenge to the Nebraska amendment, so the court was not deciding whether same-sex couples had a constitutional right to marry, although it did express its view that the marriage amendment would survive rational basis review.

Thus, the district court in the November 7 ruling was writing on a partially clean slate, having also concluded that it was not bound by the Supreme Court’s 1972 summary disposition in Baker v. Nelson.  While not mentioned the 6th Circuit ruling to the contrary the previous day, Judge Smith rejected its reasoning on this point. “This Court concludes doctrinal developments indicate the Supreme Court’s summary ruling is not reliable or binding,” he wrote, listing various subsequent Supreme Court cases on the right to marry and on gay rights.  “As the Second Circuit observed in Windsor, ‘when Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect.’  Given that the Second Circuit concluded Baker was not binding, and that the Second Circuit was later affirmed in Windsor, ‘the Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law,'” he concluded, quoting from the 4th Circuit’s opinion in the Virginia marriage case, Bostic v. Schaefer.

Turning to the merits, he found that the Missouri marriage ban violates the fundamental right to marry.  The court was helped in this case because Missouri’s attorney general, Chris Koster, who is not an ardent defender of the ban, had decided to abandon the ridiculous arguments that have been rejected by dozens of federal trial and appellate judges over the past year, and had fallen back on the lame argument that the ban is “rationally related” to the state’s interest “in promoting consistency, uniformity and predictability.”  Judge Smith characterized this as a “circular argument” under which any regulation adopted by the state would be deemed rational, no matter how outlandish.  As he pointed out, “a rule restricting marriage to those with one-syllable names promotes consistency, uniformity and predictability.  A rule restricting marriage to people within a specified age difference promotes consistency, uniformity and predictability.  Neither of these rules would be constitutional — the state’s ability to interfere with the personal decision as to who can and cannot get married is not so far-reaching.  Merely prescribing a ‘followable’ rule does not demonstrate the rule’s constitutionality.”

Thus, Smith concluded, there was “no real reason for the State’s decision to dictate that people of the same gender cannot be married.”  Since he had found that the ban violates a fundamental right, the lack of any real justification was fatal for the ban.  He also found that the ban creates a “classification based on gender,” and any such classification requires heightened scrutiny, a test that the state could not meet.  In a tiny victory for the state, Smith acknowledged that sexual orientation discrimination claims only merit rational basis review, and that in Bruning, the 8th Circuit court “had clearly expressed its belief that laws prohibiting same-sex marriage would pass rational basis review.”  On that basis, said Smith, he would grant summary judgment to the state on the plaintiff’s sexual orientation discrimination claim.  No matter, however, since plaintiffs won on the other two claims.

However, due to a particular oddity of the case, Judge Smith felt constrained to offer only limited relief, in the form of an order that the Jackson County Recorder, Robert T. Kelly, as the only named defendant, would be the only state official directed to issue marriage licenses.  This seemed peculiar, since the case was originally filed in state court and then the state intervened as a defendant and removed it to federal court.  One would think that with the state as an intervenor defendant, Smith could make his order binding on all state officials.  He did point out that he was also providing declaratory relief, which would presumably have some binding effect, specially if his decision is affirmed by the 8th Circuit, to which the state had indicated it would be appealing.

However, Attorney General Koster released a statement indicating that he would not be seeking a stay of Judge Smith’s decision, which was consistent with Koster’s reaction to recent state court rulings both mandating recognition of out-of-state same-sex marriages and requiring that certain county clerks issue marriage licenses.  Missouri is, at this point, close to being a marriage equality state de facto, if not de jure, although the court’s direct relief is limited to Jackson County.  As the first in the door, however, Missouri may end up being the lead state in defending its marriage ban before the 8th Circuit Court of Appeals, if a U.S. Supreme Court ruling does not come first.

 

West Virginia Marriage Equality Lawsuit Mainly Survives Motion to Dismiss

Posted on: January 30th, 2014 by Art Leonard No Comments

U.S. District Judge Robert C. Chambers ruled on January 29 that three same-sex couples may pursue their lawsuit claiming that West Virginia’s ban on same-sex marriage violates the federal constitution. However, expressing concern that the suit against two county clerks might not result in effective statewide relief, the court gave the plaintiffs until February 12 to either seek joinder of additional state officials if necessary to achieve that goal or to submit an argument as to why the existing defendants are sufficient for that purpose. Chambers rejected the argument that the Supreme Court’s 1972 ruling in Baker v. Nelson, the old Minnesota same-sex marriage case, would preclude this lawsuit, but accepted an argument by attorneys for the state, which had intervened as a defendant, that the plaintiffs lack standing to challenge a West Virginia statute denying recognition to out-of-state same-sex marriages. On this point, however, Judge Chambers gave the plaintiffs the opportunity to amend their complaint to add more plaintiffs if necessary to create standing on that issue. McGee v. Cole, 2014 U.S. Dist. LEXIS 10864 (S.D.W.Va., Jan. 29, 2014).

The plaintiffs, represented by Lambda Legal, are three same-sex couples and a child being raised by one of the couples. They claim that West Virginia’s laws banning the performance or recognition of same-sex marriages violate their 14th Amendment rights. They filed suit in the U.S. District Court for the Southern District of West Virginia in Huntington, against two county clerks who had denied marriage licenses. They did not name any state officials as defendants, but the state, invoking its rights under a federal jurisdictional statute, moved to intervene to defend the constitutionality of the statute.

After pre-trial motions had been filed, Lambda submitted to the court a “notice of supplemental authority” on January 3, attaching copies of the recent marriage equality decisions from Utah and Ohio, together with arguments based on those cases. The first issue Judge Chambers dealt with in his opinion was whether to “strike” these materials as improperly filed. He pointed out that he was going to read those cases in any case, so there was no need to strike the notice, but he would not read the arguments because the rules precluded submitting these materials without getting advance permission from the court.

Moving to a more important issue that has not been previously discussed to any great extent in same-sex marriage litigation, Judge Chambers considered the defendants’ contention that he should abstain from deciding this case under the “domestic relations exception” to federal jurisdiction. The Supreme Court has developed this exception in a series of cases dating back to the 19th century, taking the view that federal courts should generally not get involved with deciding divorce, custody and alimony issues, which entirely involve state law, and the defendants noted that the Supreme Court had advised abstention when a case presents “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” Chambers rejected this argument, writing that he “believes that this reading of the domestic relations exception is too expansive.” He observed that the prior case relied upon by defendants indicated that “abstention would be appropriate when disposition of the federal case depends on a state court’s decision about how state domestic relations law should be interpreted and applied. The instant case, however, does not present such a situation.” To Chambers, there was no serious interpretive problem presented by the challenged statutes: they clearly state that same-sex couples can’t be married in West Virginia, and the state will not recognized their marriages if contracted out-of-state.

He also rejected the idea that issuing a federal court decision would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern,” another ground for abstention. The defendants argued that pending bills in the legislature to establish civil unions or to present the voters with a constitutional amendment to ban same-sex marriage show that state efforts to deal with this question are under way. “Defendants point to no cases,” wrote Chambers, “suggesting that legislative efforts to define domestic relations justify federal court abstention,” and he also pointed out that no marriage equality cases are pending in the state courts.

However, he did find merit to an argument by one of the clerks that “if the marriage ban is struck down, only clerks in Kanawha and Cabell Counties will be impacted, resulting in confusion and the lack of a uniform policy regarding same-sex marriages across West Virginia.” He pointed out that in the Utah case, the plaintiffs had sued the governor, the attorney general, and the Salt Lake County Clerk. Even though the state had intervened as a party, he was not certain that this was “sufficient to support jurisdiction and create certainty as to this case’s effect on all clerks across West Virginia’s two federal districts.” Although he did not find this sufficient to justify dismissing the case at this point, he decided to reserve judgment on the question, giving the plaintiffs time to either seek to join more defendants or present a more substantial argument on the point. This was a broad suggestion that Lambda either seek to certify a class action naming all the West Virginia County Clerks, or identify and join as defendants particular state officials with supervisory or administrative authority over the marriage laws, just to pin down this point.

Turning to more substantial issues, Judge Chambers found persuasive the recent decisions by Judge Shelby in Utah and Judge Kern in Oklahoma finding that Baker v. Nelson has been superseded by doctrinal developments, most pointedly U.S. v. Windsor. He rejected with little discussion the contention that plaintiffs had failed to state a legal claim because “there is no controlling case law that invalidates West Virginia’s marriage ban.” As a practical matter, that will always be true of a case of “first impression” in a jurisdiction. He also was not ready to dismiss on the argument that the law was presumptively constitutional, which implies that he is open to the argument that “heightened scrutiny” might apply to this case.

However, plaintiffs stumbled on the issue of standing to challenge the West Virginia law that bans recognition of out-of-state marriages. None of the plaintiffs have already married in another jurisdiction, and, apart from papers filed during motion practice, did not allege in their complaint that they would seek to marry outside West Virginia if they could not do so in the state but could have their out-of-state marriages recognized. Despite various arguments attempting to construct a personal interest for the plaintiffs in having a determination on the marriage recognition issue, and Judge Chambers’ acknowledgment that it would be more efficient to decide the fate of both marriage provisions in one proceeding, he concluded that the present plaintiffs do not have “standing” to maintain the challenge under federal jurisdictional rules. Thus, he granted the state’s motion to dismiss the challenge to the recognition statute.

However, Judge Chambers did give the plaintiffs until February 12 to file an amended complaint, implying that if they can find suitable plaintiffs (West Virginia same-sex couples who have married out of state and have been denied some right or benefit because of the marriage recognition statute) they might be able to revive this part of their claim.

Having disposed of the motion to dismiss, Chambers indicated that he would soon proceed to decide Lambda’s pending motion for summary judgment on those claims remaining. Since he had directed Lambda to file something in response to the concern about statewide effect of an order, he gave the state more time to file its briefs in response to Lambda’s summary judgment motion. (That deadline had been held in abeyance while the court was considering the motion to dismiss.)

Of course, Judge Chambers gave no indication about his thoughts on the ultimate merits of the case, but it appears that this case may be moving quickly to a summary judgment ruling, perhaps vying with the pending case in the Eastern District of Virginia to see which will be first to hit the 4th Circuit Court of Appeals. Oral argument had been scheduled for January 30 in the Virginia case, but was postponed by the judge due to inclement weather, to be rescheduled shortly.