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8th Circuit Rules on Pending State Marriage Equality Appeals

Posted on: August 14th, 2015 by Art Leonard No Comments

When the U.S. Supreme Court ruled on June 26 in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment, it technically reversed a ruling by the 6th Circuit Court of Appeals, which had in November 2014 itself reversed rulings issued by federal district judges earlier in that year striking down state bans on same-sex marriage in each of the states in the circuit.  Thus, as a technical matter the Supreme Court was just directly holding that the same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee violate the 14th Amendment. 


As of June 26, appeals were pending before the 8th Circuit Court of Appeals from three states – South Dakota, Nebraska, and Arkansas – where the states were contesting district court rulings striking down their same-sex marriage bans.  The 8th Circuit had scheduled oral arguments to take place in the spring, but the court cancelled the arguments, putting all the state appeals on hold while the Supreme Court case was pending.


After the Supreme Court ruled, plaintiffs in the 8th Circuit cases asked the court of appeals to affirm the district court rulings and enjoin the three states from enforcing their same-sex marriage bans.  The three states, on the other hand, claimed that they had begun to issue marriage licenses to same-sex couples and to recognize same-sex marriages in response to the Obergefell decision.  As a result, they argued, the lawsuits against them were moot, since there was no longer a live legal controversy to be decided by the court of appeals.  They urged the 8th Circuit to vacate the district court opinions and instruct the district courts to dismiss these lawsuits as moot, opposing the plaintiffs’ requests that the 8th Circuit uphold the district court injunctions. 


On August 11, an 8th Circuit three judge panel issued three per curiam rulings, rejecting the state arguments using almost identical language holding the state bans unconstitutional pursuant to the Obergefell decision and tailoring remedies for the situations presented by each of the states.  The panel consisted of Circuit Judges Roger L. Wollman, Lavenski R. Smith, and William D. Benton.


In Rosenbrahn v. Daugaard, the South Dakota case, District Judge Karen E. Schreier had issued a declaratory judgement and a permanent injunction, but stayed the injunction pending appeal.  In Jernigan v. Crane, the Arkansas case, District Judge Kristine G. Baker had similarly issued a declaratory judgment and a permanent injunction, staying the injunction pending appeal.  In Waters v. Ricketts, the Nebraska case, District Judge Joseph F. Bataillon had not issued a declaratory injunction yet, but had granted the plaintiffs’ motion for a preliminary injunction and the state had filed an appeal from that ruling, with the 8th Circuit staying the preliminary injunction pending ruling on the appeal.


The court of appeals first addressed the issue of mootness.  It found that the states’ “assurances of compliance with Obergefell do not moot the case” although the assurances “may, however, impact the necessity of continued injunctive relief.”  The court premised its mootness ruling on the precise language that Justice Anthony M. Kennedy had used in his opinion for the Supreme Court, where he said that “the State laws challenged by Petitioners in these cases are now held invalid.”  Wrote the 8th Circuit, “The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee” but not explicitly in the three states whose appeals were before the 8th Circuit!  Furthermore, the Supreme Court had not directly addressed “all issues raised by Plaintiffs here” and none of the three states had repealed their constitutional amendments or statutory bans on same-sex marriage. 


Of course, as none of the states in the 6th Circuit had filed petitions for rehearing with the Supreme Court, the Obergefell case is at an end, and the Supreme Court’s decision creates a binding precedent that the 8th Circuit Court of Appeals must follow.  Thus, the court found, it was appropriate to affirm the district court declaratory judgments in South Dakota and Arkansas, and to affirm the preliminary injunction in Nebraska and send that case back to the district court for an entry of final judgment in favor of plaintiffs on the merits.


Turning to the question of injunctive relief, the court of appeals panel felt that it should be up to the district judges in each case to decide whether injunctive relief is warranted in light of post-Obergefell developments.  Although the states claimed that they have been complying with the Obergefell ruling, the challenged constitutional amendments and statutes are still on the books, so the court decided it was within the discretion of the district judges to determine whether injunctions are necessary at this point. 


Local attorneys were heavily involved in the three lawsuits that were being appealed, all of which had multiple plaintiffs and many organizations filing amicus briefs.  In terms of national movement legal involvement, the Nebraska case was brought with the assistance of the ACLU’s LGBT Rights Project and the ACLU of Nebraska and the South Dakota case was brought with the assistance of the National Center for Lesbian Rights.  The lists of organizations and attorneys filing amicus briefs actually take up more pages than the brief opinions issued by the court of appeals in these cases. 


The next step, of course, will involve filing of motions for the award of attorney fees to the plaintiffs under federal statutes authorizing such awards to prevailing parties in civil rights litigation.  It was widely speculated that the states were seeking to have the district court opinions vacated and the cases dismissed at least in part to give them an argument for avoiding having to pay attorney fees to the plaintiffs.  The 8th Circuit’s orders affirming the district court decisions should forestall that, since there can be no argument that the plaintiffs are not “prevailing parties,” having obtained the ruling on the merits that they sought.  In other parts of the country, several courts have made substantial fee awards to the attorneys who have represented plaintiffs in the marriage equality cases over the past several years, and new awards have begun to be issued in response to post-Obergefell motions.


Federal Court Refuses to Dismiss South Dakota Marriage Equality Case

Posted on: November 17th, 2014 by Art Leonard No Comments

U.S. District Judge Karen E. Schreier denied a motion by South Dakota Governor Dennis Daugaard to dismiss the pending marriage equality case of Rosenbrahn v. Daugaard on November 14.  Although this was not a ruling on the merits of the case, Judge Schreier’s ruling suggests that she will become the second district judge within the jurisdiction of the 8th Circuit Court of Appeals to rule for marriage equality.  Following the lead of District Judge Ortrie Smith in his recent Missouri ruling, Judge Schreier found that the 8th Circuit’s decision rejecting a constitutional challenge to Nebraska’s marriage amendment, Citizens v. Equal Protection v. Bruning, did not stand in the way of entertaining a 14th Amendment challenge to South Dakota’s ban on same-sex marriage.

Before getting to Bruning, however, Judge Schreier had to deal with the state’s argument that the case should be dismissed because of the U.S. Supreme Court’s ruling in 1972 in Baker v. Nelson that same-sex marriage did not present a “substantial federal question.”  The judge expressly rejected the recent ruling by the 6th Circuit that Baker remained a controlling precedent for lower federal courts. After noting Circuit Judge Jeffrey Sutton’s assertion that a summary affirmance like Baker would remain binding precedent unless it was “overruled by name” or “overruled by outcome,” she noted that the Supreme Court has said that such summary dispositions are not “of the same precedential value as would be an opinion of this Court treating the question on the merits,” and commented, “The Sixth Circuit’s reading of the doctrinal developments exception is too narrow and would effectively eliminate that exception by requiring either an explicit or implicit overruling of a prior decision.  Furthermore, it is difficult to reconcile the Supreme Court’s statement in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, with the idea that state laws prohibiting same-sex marriage do not present a substantial federal question.  Thus, the Sixth Circuit’s reasoning is not as persuasive as the reasoning of the Second, Fourth, Seventh, Ninth and Tenth Circuits on this issue.”

Judge Schreier also discounted the state’s argument that the 8th Circuit had “adopted” the Baker decision by mentioning it in Bruning.  Although it was mentioned in that opinion, there was not “any discussion of the continued validity of Baker or the doctrinal development exception,” she wrote.  “Despite defendants’ contention, Bruning does not compel this court to follow Baker.”

Turning to the 8th Circuit’s Bruning decision, she observed that the plaintiffs had framed that case as “an equal protection case based on a fundamental right of access to the political process,” arguing that by adopting the marriage amendment Nebraska had discriminatorily shut out gay couples from resort to the ordinary political process of seeking marriage equality from the legislature.  The 8th Circuit expressly stated that the plaintiffs were not seeking a ruling that same-sex couples had a right under the 14th Amendment to marry in Nebraska.  It did, however, rule that sexual orientation discrimination does not involve a “suspect classification” and thus the amendment would be evaluated using rationality review.

Acknowledging that she was thus bound not to use heightened scrutiny in ruling on the challenge to South Dakota’s marriage ban on a sexual orientation discrimination theory, the judge found that this did not mandating dismissing the case.  For one thing, she found, the Bruning court had not ruled on whether there is a fundamental right to marry from which same-sex couples are excluded.   “Burning is not dispositive of the central issue before this court,” she wrote, so “Bruning does not preclude plaintiffs from relief as a matter of law.”  Furthermore, she found that since Bruning had not pronounced on this fundamental due process question, “Plaintiffs are not consigned to rational basis review and have a plausible claim for relief with respect to their due process argument.”  That would suffice to reject the motion to dismiss.

However, Judge Schreier went further, exploring the plaintiffs’ equal protection claim.  She found that plaintiffs had stated “a plausible equal protection claim based on the alleged deprivation of a fundamental right where plaintiffs allege the classification is not precisely tailored to serve a compelling governmental interest.”  Furthermore, citing 9th Circuit Judge Marsha Berzon’s concurring opinion in the Idaho/Nevada marriage ruling, she found that plaintiffs also had a plausible “gender discrimination” case.   “At this stage — a motion to dismiss — the court finds that the complaint sufficiently states a claim for relief because it plausibly shows a classification related to gender,” she wrote.  “Even though several courts have rejected the argument that same-sex marriage bans discriminate based on gender because the plaintiffs did not present sufficient evidence of invidious gender discrimination to prevail on their claim, the complaint should still survive” a motion to dismiss.  She also pointed out that in light of the developing marriage equality case law, it would be improper to dismiss the plaintiffs’ sexual orientation discrimination claim either, as many courts have found that the states had presented no rational basis for their bans.

She did, however, find that the plaintiffs’ “right to travel” claim, asserted against the state’s refusal to recognize out-of-state same-sex marriages, should be dismissed, because she found it did not fit within the sphere of the constitutional right to travel mapped out in past decisions.  “Although plaintiffs in this case may lose certain benefits when they move to South Dakota,” she wrote, “the fact that they are treated the same as existing residents proves that South Dakota’s marriage laws do not operate as a penalty on the right to travel.  Therefore, plaintiffs have failed to state a claim that is plausible on its face with respect to their right to travel claim.”

The judge ordered the state to respond to plaintiffs’ pending motion for summary judgment by November 24, and plaintiffs would then have up to 14 days to file a reply, after which the court will rule on the pending motion for summary judgment.

Minnesota Attorney Josh Newville represents the plaintiffs, six same-sex couples who either seek to marry in South Dakota or to have their out-of-state marriages recognized.