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Posts Tagged ‘Utah gay marriage case’

Utah Files Petition for Supreme Court Review of Marriage Equality Ruling

Posted on: August 5th, 2014 by Art Leonard No Comments

Utah Governor Gary Herbert and Attorney General Sean Reyes filed their petition for certiorari with the United States Supreme Court on August 5, seeking review of the 10th Circuit Court of Appeals’ ruling in Kitchen v. Herbert.  At the Supreme Court, the case would be called Herbert v. Kitchen.  The 10th Circuit ruled on June 25 that Utah’s ban on same-sex marriage violated the 14th Amendment by depriving same-sex couples of the fundamental right to marry without sufficient justification.

Utah’s counsel of record, Gene C. Schaerr and John J. Bursch, have put together a certiorari petition that is well-calculated to persuade the Court that they should take the case.  They have position this as a federalism case.  Their main “pitch” to the Court is that the task of defining marriage is left under our constitutional scheme to the states, and that federal courts should not dictate how that term is to be defined.  This is reflected in their wording of the question presented to the Court: “Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.”

They build on Justice Samuel Alito’s dissenting opinion in U.S. v. Windsor, in which he posited that there are essentially two conceptions of marriage in the United States today, an adult-centric version and a child-centric version, and that the question which of these concepts to embrace should be left to the political processes of the states under a constitutional scheme which has traditionally left the details of domestic relations law to the states.  They come back numerous times to Justice Anthony Kennedy’s statements in his opinion for the Court in Windsor that the definition of marriage has traditionally been left to the states, and that for almost all of our history that definition has limited marriage to the union of a man and a woman, and they emphasize the Court’s holding in Windsor that the constitutional flaw in Section 3 of the Defense of Marriage Act was that Congress had failed to defer to state decisions to allow or recognize same-sex marriages.

In other words, this Petition does not demonize gay people or employ homophobic language.  It is carefully written to avoid comments that might be deemed hostile, and emphasizes that both the trial judge in this case, Robert Shelby, and the 10th Circuit panel, had specifically found no evidence that Utah’s ban on same-sex marriage was enacted out of animus against gay people.  Rather, they argue, Utah’s ban, most recently enacted as a constitutional amendment a decade ago, was a decision by the people of the state to embrace a child-centric concept of marriage, under which the procreative potential of different-sex marriage was its defining feature and linking children with their biological parents the main purpose.

The purpose of a petition for certiorari is to persuade the Court that there is an important federal question that requires national resolution.  This is an easy argument to make in light of the current litigation situation.  They list all the states in which marriage equality litigation is pending — a very impressive list of 32 states — and also emphasize that hundreds of same-sex couples were married in several of these states when trial courts did not stay their rulings and some time elapsed until appellate courts could restore the “status quo” by staying the decisions pending appeal.  As a result, there is collateral litigation about the validity of those marriages that would be resolved by a ruling on the merits by the Court.

They point out that the Court has already decided recently that marriage equality is a decision requiring its attention, when it granted certiorari in December 2012 in Hollingsworth v. Perry, the Proposition 8 case from the 9th Circuit.  Although the Court ultimately decided that the petitioners’ standing in that case precluded a decision on the merits, it had granted certiorari on the same question presented in this case, so it had already decided recently that a federal court decision striking down a state ban on same-sex marriage presented a pressing federal question.  They also note that the Utah litigation has already generated two stays from the Supreme Court: first, staying Judge Shelby’s decision in January 2014, and then more recently staying Judge Kimball’s decision in Evans v. Herbert concerning the validity of the marriages performed during the interval between Judge Shelby’s decision and the Supreme Court’s stay of that decision.  In issuing a stay, the Court makes an initial determination that the case is likely to be worthy of Supreme Court review, with a possibility that it would be reversed.  Thus, they argue, the Court has already decided, preliminarily, that this is a case that likely merits review.

Finally, they argue that there is a split of authority that needs resolution by the Court.  They note Baker v. Nelson, the Supreme Court’s determination in 1972 that the Minnesota Supreme Court’s rejection of a 14th Amendment claim for marriage equality did not present a substantial federal question, even in light of the Court’s recent ruling against anti-miscegenation laws in Loving v. Virginia. They contend that Baker v. Nelson was still binding and that the 10th Circuit erred in failing to follow that precedent.  They argue that the method used by the 10th Circuit to reach its decision that a fundamental right is involved in this case violates the methodology approved by the Court in Washington v. Glucksberg in 1997, and that it violates the Court’s statement last year in U.S. v. Windsor that the federal government must defer to the states in defining marriage.  Finally, they note a split from the 8th Circuit’s pre-Windsor ruling in Citizens for Equal Protection v. Bruning, which had rejected an equal protection challenge to a same-sex marriage ban in a somewhat different context.

They argue that this case, the first in the door from the current wave of marriage equality litigation, is also the “ideal vehicle” for the Court to use in deciding the marriage equality question.  First, the Court is already familiar with this litigation from considering and granting two stay petitions.  Second, the petitioners are vigorous proponents of the child-centric marriage concept.  Third, the findings of the courts below that Utah did not act out of animus left the Court free to focus on the “pure legal question” rather than being distracted by the animus findings in some of the other pending marriage equality cases.  Fourth, they argue that the courts below were “unusually clear in embracing the adult-centric concept as the basis of their holdings that the fundamental right to marriage includes the right to marry someone of the same sex,” thus highlighting the clash of philosophy that is at stake.  Fifth, they note that unlike some of the other marriage equality cases now pending, this one presents both the issues of the right to marry and of recognition of out-of-state marriages, so it would provide a vehicle to address both issues in one case.  Sixth, there are no standing issues to prevent the Court from reaching the merits.  Seventh, “there is no need to let the issue percolate even more” in light of the litigation history and the U.S. Attorney General’s announcement that he will support the plaintiffs when the Court next takes up the marriage equality issue.  Finally, they emphasized that counsel on both sides of the case “are experienced and capable.”  (Counsel for the Respondents include Peggy Tomsic, who presented a brilliant oral argument at the 10th Circuit, and attorneys from the National Center for Lesbian Rights, whose Legal Director, Shannon Minter, triumphed in the oral argument on marriage equality before the California Supreme Court back in 2008.)

“The harm in waiting is significant,” they argue, “regardless of which side prevails.  Either thousands of couples are being denied their constitutional right to marry, or millions of voters are being disenfranchised of their fundamental right to retain the definition of marriage that has existed since before the People ratified the Constitution.  This Court should grant the petition and answer, once and for all, the important question presented.”

They close with a strong summary of their argument on the merits:  “Promoting marriage as an institution designed to honor every child’s fundamental right to know and be raised by a mother and father does not ban any other type of relationship.  But rewriting the Constitution to impose the Tenth Circuit’s marriage definition on every single State has consequences.  It communicates that the marriage institution is more about adults than children.  It teaches that mothers and fathers are interchangeable and therefore expendable.  And it instills an incentive that citizens seeking social change should use the courts, rather than the democratic process, to achieve it.  For all these reasons, the Court should grant Utah’s petition and reverse the Tenth Circuit.”

Throughout the petition Schaerr and Bursch make arguments and use vocabulary that could be sharply contested by marriage equality proponents.  Their goal in this document, however, is primarily to persuade the Court to take their case, and that should not be difficult in light of the prior certiorari grant in the Proposition 8 case.  One suspects that the Plaintiffs’ response to the Petition will not differ from the Petitioners on that primary goal, since they want a Supreme Court merits ruling that will finally lift the stay and allow same-sex marriages in Utah, but they will sharply counter many of the assertions concerning the merits.

To this reader, the suggestion by Justice Alito, adopted as a central point in this Petition, that there are two conceptions of marriage, adult-centric or child-centric, is absurd.  A strict binary is a distortion of reality and of the stakes in this litigation.  The Petitioners argue as if the decision to deny marriage to same-sex couples has no serious consequences for the children they are raising., and they seek to minimize any such consequence by asserting that relatively few same-sex couples raise children by comparison to opposite-sex couples, which is demographically faulty.  They contradict themselves at numerous points, but most seriously in suggesting that allowing same-sex couples to marry is all about the adults and ignores the interests of their children.  They also argue as if there is not a decade of experience with same-sex marriage in Massachusetts that can serve to challenge their speculations about the impact that allowing same-sex marriage would have on heterosexuals in terms of “signaling” that heterosexual marriage is not important or desirable to provide a setting for raising children.  (There is similarly a decade of experience from Canada and the Netherlands, if that be deemed relevant, as it should be.)  If this is really all about the children, as they argue, then — as virtually all the courts that have considered the matter over the past year have concluded — the interests of the children being raised by same-sex couples must be taken into account, as Justice Kennedy suggested during the oral argument in Hollingsworth v. Perry and forcefully asserted in the Windsor opinion.  They similarly misrepresent the Supreme Court’s marriage precedents by the sin of omission.  They suggest that the Supreme Court’s view of marriage as a constitutional right has been the child-centric view, when in fact the Court has specifically found a constitutional right to marry to be present in the case of prisoners who are not entitled to conjugal visits — a case in which the Court provided a list of adult-centric reasons for finding that right to trump the state’s contrary arguments.

But my reflections now go to the merits; for now the merits are secondary to the question whether the Court will take the case.  This Petition makes a very strong pitch, and it is difficult to believe that it would not attract the votes of at least the four members of the Court necessary to grant review.  By the time they decide whether to grant review, they will also have petitions on file from court clerks in Oklahoma and Virginia, and, depending how quickly the 6th Circuit takes action in the cases being argued on August 6, perhaps from as many as four other states.   The possibility that the Court would put off taking a marriage equality case until next term seems remote.

 

Court of Appeals Argument on Utah’s Appeal of Marriage Ruling Points to Variety of Potential Outcomes

Posted on: April 11th, 2014 by Art Leonard No Comments

A panel of three judges of the U.S. Court of Appeals for the 10th Circuit in Denver heard oral arguments on Thursday, April 10, in Utah’s appeal of a December ruling by U.S. District Judge Robert Shelby that the state’s constitutional and statutory ban on same-sex marriages is unconstitutional. Because both Judge Shelby and a 10th Circuit panel had refused to stay that ruling pending appeal, more than 1,000 same-sex couples married in Utah before the Supreme Court granted a stay on January 6. As usual at such hearings, the court did not indicate directly how it would rule, and an opinion is likely months away, not least because this panel will reconvene on April 17 to hear Oklahoma’s appeal of a similar district court ruling and might decide to combine the two cases in one opinion.

However, the questions and answesr and dialogue between the judges and the lawyers provided insights into the thinking of the judges about how the case might be decided. Perhaps most surprising to those in the courtroom or listening to the recording that the court quickly posted to its website, the court might not even decide the case on the merits, as judges raised questions about “standing” more than once, and one judge suggested that perhaps the case should not have been decided by Judge Shelby on a summary judgment motion because of disputed facts that might be relevant to a final decision.

The issue of standing occupied center stage last June when the Supreme Court ruled in Hollingsworth v. Perry that the federal appeals courts lacked jurisdiction to rule on California’s Proposition 8 same-sex marriage ban because the supporters of that ban, who had appealed the district court’s decision striking it down, lacked “standing” to do so. “Standing” is a principle of federal constitutional law that requires the party who files a lawsuit or who seeks to appeal a trial court decision to have a personal stake in the outcome of the case, not merely a theoretical or generalized interest in how the case would be decided. For example, in right-to-marry cases, the plaintiffs are couples whose right to marry is being denied by the state, so they clearly have standing to file suit against a public official, such as a county clerk, who refuses to issue them a marriage license. Courts are divided, however, over whether they can file suit against a state governor or attorney general, as neither of those officials plays a direct role in issuing marriage licenses or administering the state’s marriage laws. This turns into a “standing” issue on appeal of a trial decision in favor of plaintiffs, when the standing issue shifts to the defendants who are appealing. A county clerk clearly has standing to appeal, since issuing marriage licenses is a function of their job, and county clerks are the only appellants in the Virginia marriage equality case now pending in the 4th Circuit in Richmond. But in the Utah case, the appellants are the governor and attorney general. Although the Salt Lake County clerk, who denied licenses to the plaintiffs, was a defendant in the trial court, she did not join in the appeal, and the attorney who appeared for the state, Gene Schaerr, presented himself as representing Governor Gary Herbert and Attorney General Sean Reyes.

This led the court to pose the “standing” question to both sides. If neither Governor Herbert nor Attorney General Reyes has personal responsibility for the enforcement of the marriage laws, is the case properly before the court of appeals? The question here is different from that posed in Hollingsworth, because in that case the appellants were private parties, not government officials, who clearly had no personal stake in the outcome in the sense that their personal lives would not be affected by the result. Even then, the Supreme Court split 5-4 over the standing question, the dissenters arguing that the California Supreme Court’s advisory opinion stating that initiative proponents could represent the state in defending their initiative provided a sufficient basis for standing. In this Utah case, the question is “closer” since the governor and attorney general have taken oaths binding them to defend the state’s constitution and faithfully enforce its laws, and they would have a similar responsibility were Judge Shelby’s decision upheld. Neither party in this case had raised standing as an issue, and Peggy Tomsic, the plaintiff’s lawyer, agreed with Schaerr in arguing to the court that there was no problem with standing. Among other things, she appointed out that ultimately the governor and attorney general did have supervisory authority over the county clerks and could direct them regarding their role in issuing or denying licenses. Similarly, the governor and attorney general would likely play a role in supervising or directing agencies confronted with the question whether to recognize same-sex marriages from other jurisdictions, which is also an issue in this case. Indeed, it seems unlikely that the court would shy away from a ruling on the merits based solely on “standing.” Surely, the chief executive and chief law enforcement officer of a state have a direct interest in appealing a trial court’s ruling that state constitutional and statutory provisions violate the federal constitution.

The state itself is not a defendant in this case, because the federal constitution has been interpreted by the Supreme Court as barring citizens from suing their own state government in federal court. Thus we have the “legal fiction” of suing state officials in their “official capacity” in order to challenge the constitutionality of a state law. Due to standing concerns, the federal courts insist that particular officials can only be sued if there is a close connection between the law at issue and their official duties. Some federal courts have dismissed marriage lawsuits that were brought against governors and attorney generals when the plaintiffs did not also sue the state official with direct authority to administer the marriage laws or a county clerk who had actually denied the plaintiffs a marriage license, out of this concern for “standing.” For example, in Pennsylvania, Governor Tom Corbett was removed as a defendant in the pending marriage equality cases for this reason, and in Louisiana a federal court dismissed a marriage equality case where the only individual sued was the attorney general. The Supreme Court raised a “standing” concern in the DOMA case (U.S. v. Windsor) as well, asking whether the United States, as represented by the Solicitor General, had “standing” to appeal a lower court decision with which the government agreed, for lack of any actual “case or controversy.” Ultimately the Supreme Court found that the government has a real interest in having a binding ruling by the Supreme Court when a lower court declares a federal statute unconstitutional. The same logic should hold in this case. Even if Herbert and Reyes were not necessary defendants at the trial court level, they would surely have a direct interest in their official capacities to appeal a ruling striking down state laws.

The other suggestion floated by the court that could defer a ruling on the merits was that Judge Shelby should not have ruled on the motion for summary judgment because a trial was necessary in order to determine facts that were in dispute. Judges are supposed to grant summary judgment motions only when material facts are undisputed and there is no need for an evidentiary hearing to resolve factual disputes. At least one 10th Circuit judge questioned whether the plaintiffs and defendants actually agreed about all the facts necessary to decide this case. Interestingly, the recent marriage equality ruling from Michigan followed the first trial on the subject since last June. Michigan District Judge Bernard Friedman had denied summary judgment motions last fall, having concluded that there were facts in dispute about the state’s justifications for banning same-sex marriage that would have to be resolved if the case was being decided using the “rational basis” test, and the judge eventually ruled on the merits only after the trial had been concluded. The hearing was focused on expert testimony from both sides about the potential impact of allowing same-sex marriages on child-rearing results, and the judge concluded in his opinion that the state’s witnesses on the issue were “unbelievable.” If the 10th Circuit panel finds that there remain disputed issues of material fact, it could send the case back to Judge Shelby with directions to hold a trial on the disputed points.

However, it seems unlikely that the court will conclude that this is necessary, when all but one of the marriage equality rulings that have been issued since the Windsor decision last June have come from summary judgment motions, with only the Michigan case following a trial. Numerous federal judges have taken the position that this issue can be decided as a question of law based on undisputed facts or, perhaps more accurately, based on a finding that even if the state is correct about its factual assertions, they don’t justify denying the right to marry to same-sex couples. While Judge Friedman’s finding that expert testimony presented by Michigan was “unbelievable” is not binding on the 10th Circuit, it seems to have carried significant weight with Utah’s attorney, Gene Schaerr, who sent a letter to the court earlier in the week noting that his brief had cited the so-called Regnerus study but that he was not relying on it to prove that parenting by same-sex couples is inferior to parenting by different-sex couples.

As to the merits of the case, to the best one might conclude from hearing the argument, it seemed unlikely that there would be a unanimous decision one way or the other. Judge Carlos Lucero, a veteran of the court who was appointed by President Bill Clinton, clearly indicated by his questioning and comments that he most likely supported the plaintiffs’ position, while Judge Paul J. Kelly, Jr., who was appointed by President George W. Bush, seemed more disposed towards the state’s position, although he posed many fewer questions making it harder to discern his views. The tie-breaker may end up being another Bush appointee, Judge Jerome A. Holmes, who questioned both sides quite sharply, making it difficult to predict where he will come to rest.

Clearly, all the judges seemed to agree that the threshold question of the level of judicial scrutiny would likely determine the outcome of the case. In 2008, the 10th Circuit ruled in Price-Cornelison v. Brooks, 524 F.3d 1103 (2008), that a local law enforcement official had no rational basis for refusing to enforce an order of protection obtained by a lesbian and, in passing, observed that heightened scrutiny would not apply because the case did not involved a “protected class” under the Equal Protection Clause. Based on that, this 10th Circuit panel is bound to apply the rational basis test, the lowest level of judicial scrutiny, to sexual orientation discrimination cases, unless subsequent legal developments mandate a higher standard or this case is viewed as involving something other than just a sexual orientation discrimination claim. Thus, the question whether the Supreme Court’s decision last year in U.S. v. Windsor established a higher standard of review that would apply to this case was a central issue in the argument and may determine the outcome, since the judges might agree, as at least one suggested during the argument, that the Utah ban would survive the traditional rational basis test, which is very deferential to the state.

It was frustrating to listen to the questions and answers on this point, because they failed to come to grips with what Justice Anthony Kennedy wrote and did in his opinion for the Supreme Court in the Windsor case. Kennedy did not state that Windsor involved a fundamental right to marry or a suspect classification based on sexual orientation. Rather, he treated it as a case in which Congress discriminated against same-sex couples by excluding them from the recognition of their state-law marriages with the result that they were deprived of numerous federal rights and benefits. It was not just a sexual orientation discrimination case. Rather, it was a case of intentional unequal treatment of a defined portion of the population, having direct and wide-ranging adverse effects, and the Court concluded that none of the arguments mounted in favor of Congress’s policy decision were sufficient to justify the magnitude of the deprivation. As in his prior gay rights opinions, Romer v. Evans and Lawrence v. Texas, Kennedy avoided invoking the categories and classifications that the Court had used in prior cases involving race or sex discrimination, instead applying a mode of judicial review particularly tailored to the issues before the Court.

Lower federal courts have difficulty applying such precedents, because, being bound by Supreme Court opinions, they are looking for clear direction about the application of existing doctrinal categories, and they are not getting such clear direction because Kennedy did not speak in terms of these categories. However, this observer suggests that Windsor bears directly on the question before the 10th Circuit in this case, because the Court, in effect, applied something like heightened scrutiny in case where Congress was discriminating against same-sex couples regarding an important social status and set of rights and benefits. Kennedy referred disparagingly to “second tier marriages” that enjoyed state but not federal recognition, and wrote about the specific stigma and burdens imposed upon children whose parents’ marriages were not recognized. He emphasized the failure of the federal government to recognize the “dignity” that legal state marriages conferred on same-sex couples. In this sense, Windsor is very much like Romer, the Colorado Amendment 2 case from 1996. A state constitutional amendment or statute that discriminates on its face against a distinct group of people must have a legitimate policy justification, and that justification must have some logical connection to the discrimination at issue.

Thus, if a state’s concern is that the “best” setting for raising a child is a family headed by a husband and a wife, it would have to show not just that this is a legitimate policy concern, but also that banning same-sex couples from marrying is a way of effectuating that policy. Schaerr was reduced to arguing that letting same-sex couples marry would send subtle messages to boys that would somehow undermine their masculinity, leading them to become bachelor outlaws. (This is a paraphrase, but not off the mark.) The state offers no factual support for this argument, merely hypothesis, and admits that the phenomenon of same-sex marriage is too new for there to be any proof that it will have this effect, as the right to marry in the United States dates back only to May 2004 when the Massachusetts Goodrich decision went into effect, and same-sex marriages in Canada and the Netherlands only began a year or two earlier. If the right to marry is a recognized constitutional right, Tomsic argued, it could not be trumped by such unproven speculation. The state should have to show that allowing same-sex couples to marry would have some sort of deleterious social effect. This certainly hasn’t manifested itself in the near-decade since same-sex couples began marrying in Massachusetts, and so far every federal judge confronting this argument since the Windsor decision has rejected it. Tomsic pointed out that the same sort of justifications were voiced by members of Congress in 1996 when they voted for DOMA, and the Supreme Court found them insufficient to justify withholding federal recognition from same-sex marriages.

Justice Antonin Scalia, in his dissenting opinion in the DOMA case, saw Kennedy’s approach in Windsor as leading ineluctably to a constitutional right for same-sex couples to marry. Chief Justice John Roberts disagreed, insisting that the case was a “federalism” case that respected the right of states to decide who could marry. But Kennedy was clear in writing that the state’s right to determine who could marry was subject to constitutional requirements of equal protection and due process, and that, in line with the reasoning in Windsor, the state would need good justifications to exclude same-sex couples from this right. Furthermore, Kennedy made clear that he was basing his opinion entirely on the 5th Amendment’s Due Process Clause and its equal protection component, and not on the concept of federalism as such, although federalism concerns clearly entered into the equation.

So far, every federal trial judge who has ruled in a marriage equality case has agreed (with Scalia) that the reasoning of Kennedy’s opinion for the Court requires striking down state bans on same-sex marriage. If the 10th Circuit ends up being divided on this question, it will be the first time since last June that any federal judge has not reached that conclusion after more than half a dozen trial court rulings.

The one certain thing about the 10th Circuit’s opinion, however, is that it will not mark the end of the case. If there is no standing for an appeal, Judge Shelby’s decision would stand as unappealed, unless Governor Herbert could persuade the full 10th Circuit to take up and reverse the panel’s decision, or even take the issue directly to the Supreme Court. The Supreme Court’s stay of Judge Shelby’s order was issued pending a ruling by the 10th Circuit, so by its terms it would expire upon the 10th Circuit issuing a decision, and the state would have to go back to get it renewed. If the case is sent back to Judge Shelby for trial, this litigation may become moot when the Supreme Court eventually rules on a case from another circuit. If the 10th Circuit rules on the merits, the losing party will certainly either seek review from an expanded panel of judges (en banc review) or petition the Supreme Court for review. So the 10th Circuit judges know that their ruling, while momentous in the short term, will likely be about as significant in the long run as the 2nd Circuit’s ruling in U.S. v. Windsor — a footnote to history.