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Unanimous Utah Supreme Court Holds Exclusion of Same-Sex Couples Under Gestational Surrogacy Law is Unconstitutional

Posted on: August 7th, 2019 by Art Leonard No Comments

The Utah Supreme Court ruled on August 1 that a state law authorizing judicial approval of gestational surrogacy contracts was unconstitutional to the extent that it excluded married same-sex couples from being able to enter into an enforceable gestational surrogacy contract.  Finding that the offending provision is “severable” from the rest of the statute, the court sent the case back to a trial court for approval of the surrogacy agreement.  The case is In re Gestational Agreement, 2019 Westlaw 3521540, 2019 UT 40.

The opinion by Chief Justice Matthew B. Durrant refers to the parties by their initials.  N.T.B. and J.G.M., a gay male married couple, wanted to make an enforceable gestational surrogacy contract with D.B. and G.M., a different-sex married couple.  They had the appropriate papers drawn up and submitted them for approval to District Judge Jeffrey C. Wilcox in St. George.

Under Utah’s law governing gestational surrogacy, only married couples can make an enforceable gestational surrogacy contract, and for the contract to be legally valid, a judge must find that it meets a multi-part statutory test.  The intended parents must be a married couple, and the proposed gestational surrogate must be a married woman who has already borne at least one child and whose husband consents to the arrangement.  The statute does not specify that the intended parents must be a different-sex couple, but when this state was enacted in 2005, Utah had a constitutional provision banning same-sex marriages, so clearly the legislature was thinking of different-sex couples when it approved the statute.

In order for the judge to validate the agreement, he or she must find that “medical evidence shows that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child.”  That is, Utah legislators did not want to validate surrogacy agreements where the intended parents wanted to pay somebody to bear their child for reasons of convenience, but only for reasons of medical necessity.

Taking this provision literally, Judge Wilcox reasoned that the statute’s use of the words “mother and her plainly refer to a woman,” so because “neither of the legally married intended parents are women the court must deny their petition.”  The judge rejected the petitioners’ argument that he should apply a gender-neutral interpretation to the statute, or that denying the married gay couple the right to make a valid gestational surrogacy contract was a violation of their constitutional rights.

They appealed the ruling, and the state’s Court of Appeals certified the case to go directly to the Supreme Court.

The Supreme Court faced several issues.  First, since the state was not a party and filed an amicus brief urging the court to interpret the statute to allow this contract to be validated, there was no traditional “case or controversy.”  Thus, the court had to confront the question whether it had jurisdiction over this case.  Chief Justice Durrant devoted a considerable portion of the opinion to that question, finding that in the field of family law there were various circumstances in which courts decide essentially uncontested cases because of statutory requirements for the exercise of judicial judgment, and this case fit easily into that exception to the general requirement that courts confine themselves to resolving disputes between contesting parties.  His opinion resulted in two members of the court writing concurring opinions focused solely on the jurisdiction issue, but the outcome had unanimous support of all the judges.

The second issue for the court was whether it could use a gender-neutral interpretation of the statute to get around the literal requirement found by Judge Wilcox that one of the intended parents must be a woman who is unable to bear a child for medical reasons.

The petitioners relied on a general “rule of construction” in the Utah code that “a word used in one gender includes the other gender.”  Judge Wilcox had acknowledged this, but noted that the same statute provides that the general rules of construction “shall be observed, unless the construction would be: (i) inconsistent with the manifest intent of the Legislature; or (ii) repugnant to the context of the statute.”  Wilcox found this proviso applicable, and so did Chief Justice Durrant.

Certainly, the intent of the legislature when the statute was enacted was to override the general common law rule against enforcement of surrogacy agreements, but only for a narrow range of cases in which traditionally-married couples who were unable for medical reasons to have a child without the assistance of a surrogate could make an enforceable surrogacy agreement subject to judicial oversight to protect the interests of all parties.  A judge had to approve the agreement to ensure that all interests, including those of the surrogate and the resulting child, were protected.

“Because the plain and ordinary meaning of the word ‘mother’ is ‘female parent,’” wrote Durrant, “we are bound, as the district court concluded it was, to read the statute as requiring that one of the intended parents be a female parent.”  He noted that following the state’s and the petitioners’ argument that the gender neutral construction rule should be followed, but this would come within both terms of the proviso: inconsistent with legislative intent and “repugnant” to the context of the statute.  He pointed out that a gender neutral reading could provide results clearly outside of the bounds that the legislature wanted to place on the use of gestational surrogacy.  If the words “intended mother” are read to mean “intended parent” without regard to gender, then a different sex couple could enter into a gestational surrogacy contract by showing that the husband is unable to bear a child.  “Because every opposite-sex couple could make this showing automatically,” wrote Dunnant, observing parenthetically that “every opposite-sex couple contains a male member and obviously a male cannot bear a child,” then this gender-neutral interpretation “would write the intended mother requirement out of the statute.”  Clearly, Dunnant has missed the occasional press reports about transgender men bearing children!

In any event, the court was unwilling to adopt a gender-neutral construction of the statute, leading to the next question faced by the court:  Does the requirement that the one of the intended parents be a woman violate the constitutional rights of the same-sex couple?  Here the court easily and unanimously found that it does under the U.S. Supreme Court’s decisions in Obergefell v. Hodges and Pavan v. Smith.  In the aftermath of the Obergefell decision, issued on June 26, 2015, lower courts had to decide whether Obergefell was a narrow decision, merely requiring that states allow same-sex couples to marry, or a broad decision under which the marriages of same-sex couples must be treated the same as other marriages under state law.

Justice Anthony Kennedy’s explanation in Obergefell of why the right to marry is a “fundamental right” did more than just imply that same-sex marriages had to enjoy equal rights, but some lower courts did not get that message.  The Arkansas Supreme Court, for example, ruled in Pavan v. Smith that the state could refuse to put the names of both women in a married couple on the birth certificate of their child because only one of the women was “biologically related” to the child.  The U.S. Supreme Court reversed.  Since the husband of a woman who gives birth is automatically listed on the birth certificate as a parent of the child, so must be a same-sex spouse, because the 14th Amendment requires that all marriages have equal rights.

Durrant found this clearly applicable to the present case.  The court found that the Utah statutory requirement that validation of a gestational agreement requires that at least one of the intended parents be female “squarely violates Obergefell in that it deprives married same-sex male couples of the ability to obtain a valid gestational agreement – a marital benefit freely provided to opposite-sex couples.  Under the statute, married same-sex male couples are treated differently than married opposite-sex couples.  Because under Obergefell same-sex married couples are constitutionally entitled to the ‘constellation of benefits that the States have linked to marriage,’ we hold the intended mother requirement . . . unconstitutional.”

This brought the court to the last question.  Was the entire surrogacy statute thus rendered unconstitutional, or could the statute be saved be severing the provision concerning the intended mother’s reproductive capacity and enforcing the statute without that provision for applications by same-sex couples?

The court noted that the legislature did not include an express severability provision in the statute, so the court was left to apply the general rule that a statute should be saved from being struck down on constitutional grounds if it was feasible to do so, and the court found it was feasible to do so in this case.  Durrant pointed out that the statute required the district court to make findings on eleven different issues. Subtracting this one left ten other issues, such as whether the consideration paid to a surrogate is “reasonable,” whether the surrogate has had a successful pregnancy in the past, whether a home study shows the intended parents meet the “standard of fitness applicable to adoptive parents” and so forth.  “Striking the intended mother requirement from this list does not reduce the significance of these other required findings,” he wrote.  “The district court should still be required to make findings on each of the additional ten conditions.  Severing the intended mother requirement from the statute does nothing to affect the operability of the remaining portions of the statute.”  Indeed, the court found that severing the intended mother requirement does nothing to “undermine” the purpose of the other provisions intended to protect the surrogate, the intended parents, and the child.

The parties are represented by Edwin S. Wall and Damian E. Davenport of Salt Lake City.  Utah Attorney General Sean D. Reyes, Solicitor General Tyler R. Green, and Assistant Solicitor General Brent A. Burnett submitted an amicus brief encouraging the court to adopt a gender-neutral interpretation of the statute, so as not to require a constitutional ruling.

This opinion is an important contribution to the growing body of cases adopting a broad construction of the precedential power of Obergefell v. Hodges and the Supreme Court’s subsequent decision of Pavan v. Smith.

Same-Sex Marriages in Utah – “On Hold”?

Posted on: January 9th, 2014 by Art Leonard No Comments

On December 20, 2013, US District Judge Shelby ruled in Kitchen v. Herbert that Utah’s constitutional amendment and statutes banning the performance or recognition of same-sex marriages violated the 14th Amendment. He was ruling on cross-motions for summary judgment. Since the state’s motion did not ask him to grant a stay in case his ruling went against them, he didn’t stay his ruling, which culminated in an injunction barring enforcement of the same-sex marriage ban. Immediately upon announcement of his ruling, same-sex couples started showing up at county clerk offices seeking – and, in many counties, getting – marriage licenses, and since then over 1300 same-sex marriages have been performed in Utah.

The attorney general’s office contacted Judge Shelby after the opinion was issued asking for a stay, and was told that they had to file a motion to that effect and give the other side an opportunity to respond. The motion was filed, responded to, and denied by Judge Shelby on December 23. On December 24, a two-judge motion panel of the 10th Circuit also denied a stay, but ordered that review of the district court’s opinion be expedited. A briefing schedule requires all briefing to be concluded by the end of February, and an argument will probably take place shortly thereafter. If the 10th Circuit really wants to expedite things — and take some excessive heat off of a three-judge panel — they should consider hearing the case en banc (by the entire 10-judge bench) right off the mark, since anything a three-judge panel decides might draw a petition for rehearing en banc anyway.

The state didn’t file its application for a stay with the Supreme Court until December 31, by which time perhaps as many as a thousand same-sex marriages had been performed. That Court granted a stay of the district court’s injunction, pending a ruling by the 10th Circuit, on January 6. So, effective upon issuance of the Supreme Court’s order, new same-sex marriages cannot be contracted in Utah while the stay is in effect.

The Utah Attorney General, Sean Reyes, announced, after some study, that the question of the legal status of the same-sex marriages performed from December 20 to January 6 is unprecedented and uncertain. The Governor’s Office issued an advisory notice on January 8 to state agencies asserting that the marriages are “on hold” and will not be recognized by the state while the stay is in effect. Governor Herbert’s position is that while the stay is in effect, the constitutional amendment and laws declared unconstitutional by Judge Shelby remain in effect and binding on the state. Since those laws ban recognition of same-sex marriages, the governor says, the state of Utah may not recognize these marriages. He temporized, however, stating that actions taken by the married couples prior to the stay would not be reversed. At least, he gave an example of a change of name on a driver’s license. If this was obtained before the stay, the state would not contest it — for now. He did not clarify, however, the interesting question whether same-sex spouses of state employees who signed up for spousal benefits before the stay would remain entitled to those benefits. His announcement does clearly imply that any applications to the state for anything requiring a valid marriage that was not filed prior to January 6 won’t be honored by the state.

My question is this: The Supreme Court stayed the district court’s injunction, but that’s all it stayed. It could not stay the 14th Amendment. That remains in effect in Utah. And that applies to these 1300-plus marriages. The announcement from the Governor’s Office said that its non-recognition position “is not intended to comment on the legal status of those same-sex marriages — that is for the courts to decide.” And there are more courts that have jurisdiction to decide that question than just the 10th Circuit in the pending appeal. So, does the state’s refusal to recognize the same-sex marriages violate the 14th Amendment rights of those couples?

What if, for example, one spouse in a same-sex marriage performed in Utah on December 20 suddenly dies? The governor would say that the question whether their surviving spouse is recognized as such under Utah law must be in held in abeyance — until, apparently, the final resolution of Kitchen v. Herbert, which might not be until 2015 or even later. In a similar situation, however, a federal court in Ohio ordered the state to recognize a surviving spouse from an out-of-state same-sex marriage, even though Ohio has a constitutional amendment and statutes similar to those of Utah. The district court in Ohio identified a constitutional “right to remain married” that outweighed whatever interest the state was asserting in refusing to recognize the marriage. And the court pointed to such realities as restrictions on burials in family plots and access to death benefits that would pose substantial harm to a surviving spouse whose marriage is not recognized. Utah recognizes other out-of-state marriages for such purposes. What valid policy reason would it have for refusing to recognize these marriages that took place pursuant to valid Utah marriage licenses? Do these 1300-plus Utah couples now have a constitutional “right to remain married” and would a state or federal court enforce that right by ordering the state to recognize a surviving spouse?

One can spin out numerous such hypotheticals. The longer the stay is in effect, the longer the normal vicissitudes of life will present situations where these couples whose marriages are considered by the state to be “on hold” will need to have decisions made. Litigation seems likely.

An emerging trend in the lower federal courts is to construe U.S. v. Windsor broadly as supporting the constitutional arguments of marriage equality advocates. (Justice Scalia construed it that way in his dissent, as Judge Shelby was quick to point out.) While the Utah case is pending before the 10th Circuit, we can expect to get more district court summary judgment rulings in the numerous pending marriage equality cases. Motions for summary judgment are already on file or soon to be filed in cases pending in other federal districts, as well as in many state courts. Virginia, West Virginia, North Carolina, Texas, Arkansas, Pennsylvania. . . The list goes on. More district court opinions are going to be issued in the months ahead, and the 9th Circuit may be ruling during 2014 on the appeal now pending from an adverse marriage equality ruling by the district court in Nevada, a ruling that predates Windsor and whose reliance on Baker v. Nelson as authority for rejecting the constitutional challenge appears risible in light of Windsor. Marriage equality plaintiffs may lose some of these motions, but it is likely that they will win some, and public opinion will advance as more opinions issue. These cases are pending in states where the local and state officials are inclined to defend their same-sex marriage bans, and by now they may be waking up to the need to ask for stays when litigating summary judgment motions, so we may not have a repeat of what happened in Utah (and, last year, in New Jersey) in terms of a district court order actually going into effect while an appeal is pending. Surely one thing the Supreme Court’s Order has done is to signal lower courts that marriage equality rulings are to be stayed pending appeal.

If marriage equality advocates win a circuit court of appeals ruling or a state supreme court ruling premised on the federal constitution, the Supreme Court would pretty definitely grant review, although it could abstain if it wanted to do so. But I would predict that the Supreme Court would be deluged by amicus briefs from state attorneys general and governors urging it to grant review, and perhaps the Solicitor General would join in, since the S.G. ended up coming in on the side of the marriage equality advocates in the California Proposition 8 case when it got to the Supreme Court and could logically argue that it would be in the interest of the nation to have a definitive ruling on marriage equality.

Most lower courts and legal scholars now seem to feel that the Windsor case lays a firm groundwork for the Supreme Court to rule for marriage equality, although there is some dissent from that view, mainly focused on the federalism comments in Justice Kennedy’s opinion and the particular wording of the operative portion of the opinion. Justice Kennedy spoke in terms of the right of married couples to “equal dignity” from the federal government, but he referred to a dignity “conferred upon” those couples by the states that allow them to marry, and I’ve heard the argument that this signals a right of states to decide who can marry. I don’t think that the grant of a stay need affect the analysis of the ultimate question on the merits, although some might construe it as signaling disagreement by a majority of the Court with Judge Shelby’s decision. I think that would be an unduly pessimistic reading. Issuing a stay in a case like this seems like the natural thing to do. The 9th Circuit did it in the Prop 8 case, and the 2nd and 1st Circuits did it in the DOMA cases. I speculate that the Supreme Court majority (perhaps even all of them) was sympathetic to the state’s argument that implementation of a major social change should not take place on the basis of a single-judge district court decision awaiting review on a question that the Supreme Court has not yet decided, and this would justify a stay, at least until the 10th Circuit rules, regardless of whether the Supreme Court was likely to reverse upon further appeal.

As to how the Supreme Court would ultimately rule, I remain unsure. I had found Justice Scalia’s dissent persuasive on this point, if a bit overblown in his usual dissenting style, but I’ve heard at least moderately persuasive arguments to the contrary: that although Justice Kennedy disavowed deciding the case on federalism grounds, his analysis incorporates a heavy dose of federalism in any event, and there is plenty of language in his opinion to quote in support of the idea that defining marriage is a state prerogative in the first instance. But he was also careful to note that states must act within constitutional bounds, as the Supreme Court has ruled several times in striking down state marriage restrictions. So I remain uncertain how Kitchen v. Herbert may ultimately be decided by the Court, under the likely name of Herbert v. Kitchen.

As to what may happen in the 10th Circuit, I was cheered to read a comment in the Salt Lake Tribune that Prof. Lynn Wardle of Brigham Young University Law School, an ardent opponent of same-sex marriage whose name appears on briefs in this case, seems resigned to losing in the 10th Circuit. The circuit is “evenly balanced” at present in terms of the political affiliations of the presidents who appointed the judges — 5 by Democrats and 5 by Republicans – but that doesn’t necessarily tell us how this will come out on the merits. (A tie vote, by the way, would affirm the district court by default.) The two-judge panel that denied the stay had one Republican appointee and one Democratic appointee. The 2nd and 1st Circuit DOMA panels did not fall along political lines, either. The district judge in Massachusetts who ruled against DOMA was a Republican appointee, as was the Circuit judge who wrote the opinion affirming him, as was Justice Kennedy who wrote for the Court in Windsor. So we just have to wait and see on the merits.

But for now, I think it would be interesting to see what a Utah or federal court might say about the refusal of the state to recognize lawfully-contracted same-sex marriages while the stay is in effect, and I would anticipate that some lawsuits may be filed relatively quickly.