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Posts Tagged ‘Rainey v.Bostic’

Supreme Court Denies Review of Marriage Equality Rulings from Three Circuits

Posted on: October 6th, 2014 by Art Leonard 1 Comment

Today (October 6) the Supreme Court announced that it had denied petitions for certiorari in Bogan v. Baskin (Indiana), Walker v. Wolf (Wisconsin), Herbert v. Kitchen (Utah), McQuigg v. Bostic (Virginia), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), and Smith v. Bishop (Oklahoma).  In these cases the U.S. Courts of Appeals for the 4th, 7th and 10th Circuits had ruled in recent months that same-sex couples have a right to marry and to have their out-of-state marriages recognized under the 14th Amendment.  In each case, either the Supreme Court or the court of appeals had granted a stay of the ruling pending the states’ appeal to the Supreme Court.  Now that the Supreme Court has refused to review these cases, the stays will be lifted, and five more states will quickly be added to the existing marriage equality list, which already includes 19 states and the District of Columbia.

The Supreme Court’s action will also have a quick echo effect, as lawsuits are pending before federal trial judges in another six states that are within the jurisdiction of the 4th and 10th circuits: West Virginia, North Carolina, South Carolina, Wyoming, Colorado, and Kansas.  Judges in those cases are likely to grant summary judgment motions by the plaintiffs quickly, since their rulings are controlled by the court of appeals decisions.  Thus, in the coming weeks marriage equality will spread to these states as well, reaching a national total of 30 states with more than 60% of the nation’s population.  This would  bring the issue close to the tipping point of 34 states that had allowed interracial marriages when the Supreme Court struck down Virginia’s ban on such marriages in 1967.  With today’s announcement, marriage equality has swept the 7th Circuit, as Illinois adopted marriage equality legislatively last year and Wisconsin and Indiana are the only other states in the circuit.

Still to be heard from are the 6th Circuit, where the court of appeals heard oral arguments on cases from all four states in the circuit (Michigan, Ohio, Kentucky and Tennessee) early in August, and the 9th Circuit, where the court of appeals heard arguments from Idaho, Nevada and Hawaii early in September.  The other states in the 9th Circuit, where marriage equality cases are pending in federal trial courts, include Alaska, Montana, and Arizona.  Observers of the 6th Circuit oral argument had predicted that this might be the first circuit to rule against marriage equality, but the Supreme Court’s action today might influence how those judges are thinking about the issue.  There was no dissent from the denial of certiorari, which means none of the justices was willing to go on record as opposing lifting the stays and allowing marriage equality to go into effect in five more states.  This may send some sort of signal to the lower courts.  In the 9th Circuit, it is widely expected that the court — which previously struck down California Proposition 8 — would rule for marriage equality.

Least far along are the 5th, 8th and 11th Circuits.  In the 5th, the court has yet to schedule arguments on appeals from district court rulings in Texas and Louisiana, although it recently granted a motion to expedite briefing and hear those cases argued on the same day, probably in November.  The other state in that circuit is Mississippi, where litigation is pending in the trial court.  In the 8th Circuit, Minnesota and Iowa already have marriage equality, and an appeal is pending before the Arkansas Supreme Court of a marriage equality ruling by a state trial judge.  Cases are pending in trial courts in other states in that circuit: North and South Dakota, Nebraska and Missouri, where a state court judge ruled on October 3 that the state must recognize same-sex marriages contracted in other states and state officials have not announced whether they will appeal the ruling.  In the 11th Circuit, the circuit court has yet to schedule an argument on Florida’s appeal from a trial court pro-marriage equality ruling, and cases are pending in federal trial courts in Georgia and Alabama.  Not to be forgotten are cases pending in Puerto Rico and the Virgin Islands, which are in the 1st and 3rd Circuits, respectively.  All of the states in those circuits now have marriage equality, although the circuit courts have not ruled on the question.

A decision by the Supreme Court to deny a petition for certiorari is NOT a decision on the merits of the case.  That the Court decided to allow marriage equality to go into effect in five states (and, by extension, 11 states) without a Supreme Court ruling on the merits seems prudent, if not widely anticipated.   Justice Ruth Bader Ginsburg, a likely marriage equality supporter who has already officiated at several same-sex marriages and was part of the majority in U.S. v. Windsor, observed in a recent talk at the University of Minnesota Law School that she saw no urgency for the Supreme Court to get involved in this issue so long as there was no disagreement among the circuit courts of appeals.  There was, of course, human urgency, if not legal urgency, because the rulings affecting five states had been stayed, but that urgency is immediately dissipated by lifting the stays and allowing those decisions to go into effect.  The prudence of the Court’s decision to abstain inheres in the trend of public opinion.  Support for same-sex marriage increases as the number of states allowing such marriages grows, so the Court’s abstention will allow that trend to continue, making a later decision on the merits even less controversial than might have been the case had the Court been deciding when “only” 19 states allow same-sex marriage.

Indeed, some have speculated that abstention by the Supreme Court may make it possible to achieve marriage equality without a Supreme Court decision.  Some more states may see the handwriting on the wall, as did Hawaii and Illinois last year, and decide to amend their marriage laws to allow same-sex marriages.  Even though the denial of review is not a merits decision, lower federal courts may be influenced by it in deciding the remaining cases.  After all, it just takes four votes to grant certiorari.  If the four most conservative Republicans — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito – presumably opposed to marriage equality based on their dissenting opinions in U.S. v. Windsor (last year’s DOMA case), thought they had a chance of picking up the vote of Justice Anthony Kennedy, author of the Court’s Windsor decision, they would likely have voted to grant review in one or more of these cases.  The four Democratic appointees — Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — presumably marriage equality supporters based on their Windsor votes (and Justice Kagan has also officiated at a same-sex marriage) — may agree, as indicated by Justice Ginsburg, that there is no need to vote for review unless and until a circuit split develops.  No need tempting fate, given Justice Kennedy’s public silence on the matter.

The justices maintain absolute secrecy about what is said in their private conferences, so we may never learn what Justice Kennedy may or may not have said in last week’s conference to persuade his four Republican colleagues and his four Democratic colleagues to refrain from voting to grant review, but it seems a good bet that he gave no hope to the Republicans that they were likely to get his vote for a decision reversing these court of appeals rulings.  This gives grounds for optimism that if the issue does get to the Supreme Court in its current configuration, it will likely be decided in favor of marriage equality.  Time might change that calculus if a vacancy develops on the Court, but that’s another story. . .

 

 

Supreme Court Stays Virginia Marriage Ruling

Posted on: August 20th, 2014 by Art Leonard No Comments

The Supreme Court issued an unsigned order today staying the 4th Circuit’s mandate in Bostic v. Schaefer, the Virginia marriage equality case.  The 4th Circuit panel had rejected Prince William County Clerk Michele McQuigg’s motion to stay pending Supreme Court review, and McQuigg promptly renewed her request for a stay by filing the motion with Chief Justice John Roberts.  Roberts requested input from the other parties, and then referred the matter to the full Court, which issued the unsigned order on August 20.  If the order had not been issued, the 4th Circuit’s ruling would have gone into effect tomorrow morning, August 21, at 8 am.

Virginia Attorney General Mark Herring has already filed a petition for certiorari with the Supreme Court seeking review and affirmance of the 4th Circuit’s decision.  He had supported McQuigg’s motion for a stay.  The plaintiffs in the underling cases, represented by the ACLU and Lambda Legal, had opposed the stay request, and urged the Court that if it were to stay the 4th Circuit ruling, it move quickly to grant cert and decide the case on the merits.

County clerks and various licensed marriage celebrants in Virginia were already gearing up for the possibility of issuing licenses and performing ceremonies on August 21, since Virginia law does not require couples to observe any waiting period after getting their licenses.  But the Supreme Court’s granting of the stay was really no surprise, because it stayed the 10th Circuit’s Utah marriage ruling and, as lower courts have generally acknowledged, sent a clear signal that if a state wants to appeal a marriage equality ruling, the Supreme Court is willing to stay the ruling pending appeal.

If one applies the “guidelines” that the Supreme Court has set out in the past as its standard for granting stays pending appeal, then one can attribute to this stay ruling a view among the Justices that it is likely that a petition for certiorari will be granted in a marriage equality case this term, that there is at least a fair possibility that the Supreme Court might reverse the 4th Circuit’s decision, that irreparable harm to the state might result from allowing the 4th Circuit’s decision to go into effect and the balance of equities weighs in favor of the party seeking the stay.  But I would question how stringently the Court is applying these standards, and I think the issuance of this stay is more about politics and prudence than about applying these tests.

On the one hand, it seems highly likely to me that the Court will grant cert in one of the pending marriage equality cases.  Since U.S. v. Windsor last year, the Court’s latest word on same-sex marriage, was a 5-4 decision, there is certainly a “fair” possibility that the swing voter in the prior case could swing the other way on this one, and marriage equality proponents should not count any chickens before they are hatched.  But the rhetoric of Justice Anthony Kennedy’s opinions in Windsor, Lawrence v. Texas and Romer v. Evans strongly suggests that he may rule similarly in favor of the plaintiffs-respondents if the Court grants cert in the Utah, Oklahoma or Virginia cases.  As to irreparable harm, unless one accepts without question the contention that a state suffers irreparable harm every time a federal court blocks the enforcement of a state law, no matter how ill-conceived or potentially unconstitutional is the law, I have trouble seeing it.  Now that same-sex couples have been getting married in 19 states and the District of Columbia, in some states for several years, it is possible to see quite clearly that allowing such marriages to take place or be recognized does not cause any irreparable harm to the states.  In terms of the balance of the equities, it seems pretty clear that the harm to a state is to its “sovereign dignity” but will not adversely affect the public welfare or the economy of the state or its institution of marriage, whereas delaying the marriage rights of same-sex couples could clearly work irreparable injuries to them in terms of dignitary and economic losses, and even loss of life and liberty.  So the balance of the equities on these stay petitions clearly favors the respondents, in my opinion.

At any rate, what the Supreme Court says, even without explanation of its reasoning, is binding upon all parties, so the 4th Circuit’s mandate is stayed.

In its Order, the Court is very specific in providing that the stay will automatically be dissolved if the Court denies the petition for certiorari that Clerk Michele McQuigg is expected to file.  This suggests to me that if the Court decides to grant one of the other petitions, it will “hold” the McQuigg petition and neither deny nor grant it until it has decided on the merits the case that it accepts for review.

On the other hand, the Court is also very specific in stating that if the petition is granted, “the stay shall terminate upon the sending down of the judgment of this Court.”  Perhaps, as Chris Geidner suggests in his Buzzfeed.com report on today’s Order, this is intended to avoid the court of appeals “jumping the gun” and allowing same-sex couples to start marrying right away upon announcement of the Supreme Court’s opinion, as happened in 2013 when the 9th Circuit lifted its stay shortly after the Supreme Court dismissed the appeal in Hollingsworth v. Perry on jurisdictional grounds.  The big difference, of course, is that in Hollingsworth the stay had been granted by the 9th Circuit at the request of the appellants, so it was up to the 9th Circuit when to lift it.  In this case, however, the stay is being granted by the Supreme Court (having previously been denied by the 4th Circuit), so it is the Supreme Court that sets the terms, and presumably the Court will not “send down” its judgment formally to the court of appeals until the time has expired for filing motions for reconsideration or for reargument.  Thus, if the Supreme Court affirms the 4th Circuit, the Court will retain control over the timing of its decision going into effect.  This seems like a pragmatic move, inasmuch as a sweeping Supreme Court marriage equality ruling will require the remaining 31 states that ban same-sex marriage to make whatever adjustments are necessary to their forms and procedures in order to facilitate the volume of license applications they may subsequently experience, as well as the filing of stepparent adoption petitions, employee benefit plan enrollment forms, etc., from already-married same-sex couples seeking recognition of their marriages.  There might even be a small flood of pent-up divorce petitions….

To those unfamiliar with the workings of the Supreme Court and the appellate process, do not be misled by headlines reporting today’s development along the lines of “Supreme Court Blocks Virginia Same-Sex Marriages.”  While it is technically true that the stay “blocks” same-sex couples from marrying in Virginia on August 21, this is not a ruling on the merits by the Supreme Court, and it does not represent a judgment by the Court that same-sex couples are not entitled to marry.  It is a technical move by the Court to preserve its jurisdiction and the orderly appellate process by relieving the state of Virginia of the obligation to ignore its same-sex marriage ban until the Supreme Court has decided whether to weigh in on the controversy.

And, Justice Ruth Bader Ginsburg has already stated publicly her opinion that the Court will not “duck” a ruling on marriage equality this time around, as it did in 2013 in the California Prop 8 case.  The pending cert petitions present no major jurisdictional impediment to a ruling on the merits.  If the Court grants review in one of the marriage equality cases, there is likely to be a ruling on the merits before the end of the term that gets underway on October 6 — most likely sometime in the spring or early summer of 2015.

4th Circuit Denies Motion to Stay Mandate in Marriage Ruling Beyond August 20

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

The three-judge panel of the U.S. Court of Appeals for the 4th Circuit that decided the case of Bostic v. Schaeffer, striking as unconstitutional Virginia’s ban on same-sex marriage, denied a motion by one of the defendants, Prince William County Clerk Michele McQuigg, to stay its mandate beyond the short time that it had authorized in its decision.  That effectively places the question whether same-sex couples can begin marrying in Virginia soon into the hands of the Supreme Court, and initially into the hands of Chief Justice John G. Roberts, Jr., if any party in the case asks him to grant a further stay.  (Update: Alliance Defending Freedom, representing McQuigg, filed an application for a stay on August 14.  Chief Justice Roberts notified the parties on August 15 that the full Court will consider the request, and that any additional papers or argument should be submitted by 5 pm on Monday, August 18.  Since the 4th Circuit’s mandate goes into effect at 8 am on August 21 if not stayed, presumably the Court will issue a ruling on the application before then.)

The case is in a somewhat odd posture.  The lawsuit was originally filed against the Republican governor and attorney general of Virginia last July.  Subsequent motion practice resulted in dropping those officials as defendants and substituting the State Registrar, Janet M. Rainey, and Norfolk County Clerk George E. Schaefer, III, whose office had denied a marriage license to one of the plaintiff couples.  Then Democrats were elected governor and attorney general, and Prince William County Clerk Michele B. McQuigg was granted intervenor status to defend the marriage ban when it seemed likely that neither the new governor nor the new attorney general would be inclined to do so.  After the inauguration, McQuigg’s fears were confirmed, as the governor and attorney general announced they would not defend the marriage ban.  Before the trial court, the state joined with the plaintiffs in seeking invalidation of the marriage ban, which they achieved.

The two clerks appealed to the 4th Circuit.  At the oral argument, Solicitor General Stuart A. Raphael represented the Attorney General’s office, argued in support of the plaintiffs, and the 4th Circuit affirmed the district court, by a vote of 2-1, on July 28.  Clerk McQuigg announced that she would file a cert petition rather than seek en banc review in the 4th Circuit (where a majority of the judges are Democratic appointees).  She had 90 days to do so.  But then Attorney General Mark Herring announced that he would promptly file a cert petition to ensure that the case is lined up for consideration by the Supreme Court when it reconvenes in the fall.  However, he supported a motion by McQuigg to stay the ruling pending an ultimate determination by the Supreme Court.  The plaintiffs, of course, opposed the stay, arguing that any delay in the implementation of the right to marry for the plaintiffs (who include not just the two couple plaintiffs in Bostic but also the certified plaintiff class of all same-sex couples in Virginia in the Harris v. Rainey case, which was joined to the Bostic case for argument) worked an irreparable injury.  Herring’s cert petition was filed with the Supreme Court on August 8.

Evidently, the plaintiffs’ argument was persuasive to a majority of the 4th Circuit panel, as Judges Floyd and Gregory voted to deny the motion over the dissent of Judge Niemeyer, who had dissented on the merits as well.  This means that the 4th Circuit’s temporary stay will expire next Tuesday night, and same-sex couples could theoretically begin obtaining marriage licenses on Wednesday morning, while couples already married in other jurisdictions could initiate whatever measures they sought to exercise their marital recognition rights (e.g., filing step-parent adoption petitions).

The justice of the Supreme Court to whom motions for stays from the 4th Circuit are directed is Chief Justice Roberts.  Any party can file such a motion, and it would be surprising if neither Herring nor one or both of the Clerks file such a motion.  It would also be surprisingly, in light of the Court’s conduct on stay motions so far this year, if such a stay were not granted.  So people should not get their hopes up too much for a quick implementation of the marriage ruling.

Also, so far the Supreme Court has not added the pending marriage equality cert petitions to the agenda for its September 29 conference.  One suspects they are going to put off considering the petitions right away, which is the course they followed in 2012 with the DOMA cert petitions.  Although they already had petitions on file early in the term, new petitions subsequently arrived from various lower court decisions, and the Supreme Court discussed the DOMA petitions at several conferences before finally announcing their cert grant in December 2012.  In the case of marriage, we have still to hear from the 6th Circuit, which heard arguments on August 6 in cases from four states, the 7th Circuit will be hearing arguments on August 26 in cases from two states, and the 9th Circuit will be hearing arguments in cases from three states on September 8.  So the Supreme Court might just hold the cert petitions with the expectation that there will also be petitions from decisions by those circuits in coming months.  Or, considering the stays in effect and the number of people eagerly anticipating a decision, they might move relatively quickly.  Since they have no time limits governing their action, it is all a matter of speculation.  But it seems unlikely that the Court would fail to take a marriage equality case for review this term, which would most likely mean a decision by the end of June.  Justice Ginsburg has already told interviewers that she thinks the Court will not duck the same-sex marriage issue this term.