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10th Circuit Rules on Oklahoma Marriage Case, Affirming District Court’s Decision Striking Down the Ban

Posted on: July 18th, 2014 by Art Leonard No Comments

The same panel of three judges that ruled last month that Utah’s same-sex marriage ban is unconstitutional reiterated that ruling on July 18 in Bishop v. Smith, 2014 U.S. App. LEXIS 13733, holding that Oklahoma’s ban was unconstitutional for the same reason: it denies same-sex couples a fundamental right without sufficient justification.  Once again, 10th Circuit Judge Carlos F. Lucero wrote for the majority of the court in Bishop v. Smith, devoting most of his opinion to procedural and jurisdictional issues and, in fact, ceding one portion of the opinion to Judge Jerome A. Holmes, who also authored a separate concurring opinion to address an issue that technically wasn’t before the court: whether the Oklahoma Marriage Amendment was the product of unconstitutional animus, which Holmes concluded it was not.  As in the Utah case, Judge Paul J. Kelly, Jr., dissented, but the focus of his dissent this time was Article III standing of the plaintiffs, not the merits of their constitutional claim.  And, also as in the Utah case, the court stayed the effect of its ruling “pending the disposition of any subsequently-filed petition for writ of certiorari” to the Supreme Court. The Oklahoma marriage case has the distinction of having taken longer to get to this point — a ruling on the merits by the U.S. Court of Appeals — than any other marriage equality case.

It was filed nearly ten years ago, in November 2004, by two same-sex couples, Mary Bishop and Sharon Baldwin, who were seeking the right to marry, and Susan Barton and Gay Phillips, who were civilly united in Vermont in 2001 and subsequently married in Canada in 2005.  Barton and Phillips were originally concerned with the failure of the federal government to recognize their legal relationship.  That original lawsuit was filed against the Governor and Attorney General of Oklahoma and the federal government, and specifically challenged the Oklahoma Marriage Amendment, known as State Question 711 (SQ711) and the federal Defense of Marriage Act.

The case actually got to the 10th Circuit when the state officials appealed District Judge Terence C. Kern’s refusal to dismiss the complaint against them.  In an unpublished opinion, the 10th Circuit ruled that neither the Governor nor the Attorney General were appropriate officials to sue, because neither played a direct role in administering Oklahoma’s marriage laws.  The 10th Circuit said in that opinion that in Oklahoma the marriage laws were administered by the court system, through the court clerks in each county, so a lawsuit challenging the laws must be filed against a clerk. The case was sent back to the district court, where plaintiffs filed an amended complaint against the Tulsa County Clerk, Sally Howe-Smith, who refused to issue Bishop and Baldwin a marriage license.  By then Barton and Phillips had gotten married in Canada (in 2005) and in California (in 2008), so now they were specifically seeking recognition of their out-of-state marriages by both Oklahoma and the federal government.

The case sat before Judge Kern for years with nothing much happening, other than the Tulsa court clerk, Sally Smith, filing an affidavit swearing that her job had nothing to do with recognizing out-of-state marriages.  In 2011, when U.S. Attorney General Eric Holder announced that the Justice Department would no longer defend Section 3 of DOMA, the House Bipartisan Legal Advisory Committee (BLAG) entered the case to defend DOMA. After the Supreme Court decided U.S. v. Windsor last June, holding Section 3 of DOMA unconstitutional and setting off the avalanche of new marriage equality lawsuits around the country, Judge Kern reactivated the dormant lawsuit, which had been “on hold” while the DOMA litigation was playing itself out.

Placing great weight on Smith’s affidavit, Judge Kern ruled that Barton and Phillips, who were suing for recognition of their out-of-state marriages, had failed to sue an appropriate defendant and thus lacked standing to attack the state’s law on marriage recognition.  Under standing principles in federal court, the plaintiffs have to sue a party whom the court can order to do something to redress the plaintiff’s injury.  Barton and Phillips had never produced any evidence to contradict Smith’s affidavit, so it stood uncontradicted.  Thus, Kern refused to rule on the marriage recognition issue. As to Bishop and Baldwin’s claimed right to marry, Kern ruled in their favor, rejecting the Smith’s argument that they also lacked standing because their lawsuit challenged only the constitutional amendment and not Oklahoma’s marriage statute, which also provides that only different-sex couples can marry.  Kern brushed that problem aside, and held that the ban on same-sex marriage violated the 14th Amendment.

Smith appealed, represented by lawyers from Alliance Defending Freedom, an anti-gay litigation group based in Scottsdale, Arizona, as well as the Tulsa County District Attorney’s Office.  Barton and Phillips also appealed, represented by Don Holladay, the Oklahoma City lawyer who had initially conceived the lawsuit and represented the couples throughout the litigation with other lawyers from his firm, Holladay & Chilton PLLC.  Among other things, Barton and Phillips argued that they had appropriately sued the clerk, because that’s what the 10th Circuit had told them to do in the prior opinion.

Judge Lucero started his opinion by referring to the court’s ruling in Kitchen v. Herbert, the Utah marriage case, and reiterated the court’s holding from that case: same-sex couples are seeking to be included in the fundamental right to marry, and the state’s justifications for refusing to let them marry “that turn on the procreative potential of opposite-sex couples do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental liberties.” Smith had attempted to raise some new arguments, but Lucero rejected them.

More significantly, Smith argued that the right to marry claim should be dismissed on standing grounds because the complaint had attacked only the marriage amendment, not the marriage statute.  Judge Lucero found that under Oklahoma law the marriage amendment actually replaced the statute, so a ruling holding the amendment unconstitutional would completely resolve the issue.  Lucero quoted a prior Oklahoma case on point: “A time-honored rule teaches that a revising statute (or, as in this case, a constitutional amendment) takes the place of all the former laws existing upon the subject with which it deals.”  Thus, there was no need to specify the marriage statute in the plaintiffs’ complaint.

Lucero also rejected Smith’s challenge to Judge Kern’s conclusion that Baker v. Nelson, the Supreme Court’s 1972 dismissal of a marriage equality case from Minnesota as not presenting a “substantial federal question” was not binding on the court.  “Her argument that doctrinal developments do not allow a lower court to reject the continued applicability of a summary disposition is undermined by the explicit language of the case creating the rule,” Lucero wrote, citing the Supreme Court’s 1975 decision, Hicks v. Miranda, where the Court said that lower courts should adhere to the Supreme Court’s view that a case does not present a substantial federal question “except when doctrinal developments indicate otherwise.”  Doctrinal developments at the level of the Supreme Court since 1972 certain establish that a right to marry for same-sex couples now presents a substantial federal question.  If there were any doubt, the Windsor decision would lay that to rest.

Smith tried to revive the procreation argument, but in the guise of suggesting that the interest of children in being raised by both of their biological parents justifies the marriage ban. Lucero easily rejected this, explaining: “Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions.  As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation.  But Oklahoma has barred all same-sex couples, regardless of whether they will adopt, bear, or otherwise raise children, from the benefits of marriage while allowing all opposite-sex couples, regardless of their child-rearing decisions, to marry.  Such a regime falls well short of establishing ‘the most exact connection between justification and classification,” which is required where a fundamental right is at stake.

Judge Holmes wrote the next part of the opinion, dealing with Barton/Phillips’ appeal of Kern’s ruling that they lacked standing to challenge the marriage-recognition portion of the Oklahoma marriage amendment because they had sued the wrong defendant.  In its earlier decision in this case, the 10th Circuit had identified the court system – and specifically the county court clerks – as the appropriate defendant because the courts administer the state’s marriage laws through the clerks.  Ordinarily, this ruling would be treated as part of the “law of the case” and not subject to challenge later on.  But Holmes pointed out that there is an exception to the law of the case rule when new evidence is presented to the court that requires reconsidering the issue.  In this case, the new evidence was Smith’s affidavit, filed in response to the amended complaint, in which she swore that her duties did not involve recognizing out-of-state marriages.  This information was not part of the record for the prior 10th Circuit ruling because Smith was not a defendant then, having only been sued in the amended complaint filed after the case was returned to Judge Kern’s court.  This “new” information was dispositive of the standing issue, wrote Judge Holmes, because it was clear that the court could not redress the plaintiffs’ marriage claim by issuing an order to Smith.

So, who could be sued on the marriage recognition question?  Holmes pointed out that in other marriage equality cases, the plaintiffs had sued state officials who had a direct role in marriage recognition.  For example, in several cases the plaintiffs sued state tax officials after they had refused to accept joint tax filings from same-sex couples who had married out of state.  In Tennessee, a couple sued the commissioner of the department of finance and administration after the department turned down their application to participate in a family health insurance plan provided by one of their employers, a state university.  In another case, the defendant was the state registrar of vital records for refusing to issue an appropriate birth certificate for a jointly-adopted child, and in another, the director of the state health department for refusing to recognize the marriage on a death certificate.

The court rejected other arguments made by Barton and Phillips to try to resuscitate their challenge to the marriage recognition part of the Oklahoma marriage amendment.  “No matter how compelling the equitable arguments for reaching the merits of the non-recognition claim,” wrote the court, “its fate must be determined by the law, and the law demands dismissal.  The frustration that may be engendered by the court’s disposition today should be tempered, however.  Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in Kitchen [the Utah case] casts serious doubt on the continuing vitality” of the recognition ban.

Judge Holmes wrote an interesting and lengthy concurring opinion as well, explaining why the 10th circuit judges agreed with Judge Kern in not relying on “animus” as a basis to strike down SQ711.  Holmes traced in detail the development of the animus doctrine by the Supreme Court as an alternative way of dealing with challenged federal statutes, observing that when the court concludes that a statute disadvantaging particular groups was tainted by animus, it was unconstitutional because animus against a group never suffices as a legitimate ground for legislation. The prime example of this doctrine is Romer v. Evans, the Supreme Court’s 1996 decision striking down Colorado Amendment 2, which prohibited the state from protecting gay people from discrimination.  The Supreme Court concluded that Amendment 2 was motivated by animus because it was extraordinarily sweeping and that it was unprecedented for the state to single out a class of people and deny them all redress from any form of discrimination they might encounter. By comparison, said Judge Holmes, SQ711 was narrowly focused on marriage and was hardly unprecedented, inasmuch as it merely enacted in state constitutional law the definition of marriage that had prevailed in Oklahoma throughout its history.  Gay people had no fewer rights after it was passed than they had before it was passed.  By contrast, Colorado Amendment 2 effectively rendered unenforceable the gay rights law in several Colorado municipalities and appeared on its face to take away from gay people the protection of the state constitution’s equal protection requirement. Holmes also pointed to the example of California Proposition 8, which took away from same-sex couples in California a state constitutional right to marry that had been identified previously by the California Supreme Court.  In the Prop 8 litigation, the 9th Circuit held that Prop 8 was unconstitutional on the theory of Romer v. Evans, an animus case in that it withdrew a previously identified right. Holmes joined with Lucero to make up a majority of the court.

Judge Paul J. Kelly, Jr., dissented in part, arguing that the majority had misapplied Oklahoma precedents in finding that a challenge to the marriage amendment would suffice and there was no problem with plaintiffs having omitted a challenge to the marriage statute from their complaint.  He agreed, however, with the court’s ruling that Judge Kern lacked jurisdiction over the marriage recognition claim.  Because he found that the district court did not have jurisdiction over any of the claims due to the plaintiffs’ lack of standing, he did not address the merits, but he had already made clear in his Utah dissent that he believes that state bans on same-sex marriage do not violate the 14th Amendment.  So far, he is the only federal judge since the Windsor ruling to take that position.

As Utah officials have indicated they will be filing a petition to review last month’s ruling with the Supreme Court, it seems likely that Oklahoma will follow suit.  It would make little sense to petition for en banc review when a cert petition to review a ruling by the same 10th Circuit panel on marriage equality is pending before the Supreme Court.  It would be highly unlikely that the judges of the 10th Circuit would vote in favor of granting rehearing en banc in such circumstances.  But stranger things have happened.

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.