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Federal Court Says Utah Must Recognize Same-Sex Marriages That Were Celebrated Before the Supreme Court Stay

Posted on: May 19th, 2014 by Art Leonard No Comments

U.S. District Judge Dale A. Kimball ruled on May 19 that the state of Utah must recognize the same-sex marriages that were performed in the state from December 20 to January 6. Another federal district judge, Robert Shelby, ruled on December 20 in Kitchen v. Herbert that Utah’s ban on same-sex marriage was unconstitutional. Judge Shelby, and subsequently the 10th Circuit Court of Appeals, refused to stay that decision pending appeal and more than 1300 marriage licenses were issued to same-sex couples before the U.S. Supreme Court responded affirmatively to the state’s request for a stay pending appeal. After the Supreme Court issued its stay, Governor Gary Herbert declared that the same-sex marriages that had been performed were “on hold” as the stay had “revived” the state’s marriage ban. In this ruling in Evans v. State of Utah, Judge Kimball found that the state is barred by the Due Process Clause of the 14th Amendment from putting legally valid marriages “on hold,” but temporarily stayed his own ruling for 21 days to give the state an opportunity to appeal to the 10th Circuit.

There was some confusion on the part of the state government after Judge Shelby issued his injunction against the state’s marriage ban. Some clerks began issuing licenses quickly, while others hesitated, awaiting instructions from the state government. Finally, upon the attorney general’s advice that clerks who refused to issue licenses could be held in contempt by the federal district court, many clerks fell into line and issued more than 1300 licenses, as state officials announced that such marriages were valid. However, when the Supreme Court issued its stay and the governor declared that those marriages were now “on hold” because the state could not recognize them under the “revived” laws, the ACLU filed suit on behalf of several recently-married couples, seeking an injunction requiring the court to recognize the marriages.

The result was to interfere with the ongoing efforts by recently-married same-sex couples to assert their rights, including several adoption proceedings that were thrown into limbo as Utah trial judges were uncertain how to proceed. Indeed, the state is facing the threat of a contempt proceeding from one trial judge who issued an adoption order that state officials are refusing to honor by issuing an appropriate birth certificate, and there are already questions pending at the Utah Supreme Court about the status of these marriages. The court has temporarily stayed various adoption proceedings while it decides whether the state must recognize the marriages. It will be interesting to see what weight it accords to the federal district court’s ruling on vested rights, which depends on that court’s reading of Utah precedents.

The ACLU filed its lawsuit in state court, but the state removed the suit to federal district court, and opposed the plaintiffs’ motion to certify to the Utah Supreme Court the question whether couples legally married under Utah law have vested rights in their marriage that could not be taken away by the state without a compelling interest. The plaintiffs moved for a preliminary injunction, arguing that as a matter of law their vested rights were being abridged by the state for no valid reason. The state, in response, argued that the Supreme Court’s stay had a retroactive effect, restoring the marriage ban going back to December 20, 2013, thus rendering the marriages invalid. And, after having opposed the plaintiff’s motion to certify the question to the Utah Supreme Court, the state reversed course and urged Judge Kimball to certify virtually the same question, but Judge Kimball refused to do so, finding that Utah precedents are clear on the question of vested marriage rights.

Judge Kimball found that the state’s arguments were contradicted by well-established principles of Utah law as well as the Due Process Clause of the 14th Amendment. Judge Kimball placed heavily reliance on the California Supreme Court’s ruling in the somewhat analogous situation created when California voters adopted Proposition 8 in November 2008 after thousands of same-sex couples had married in the five months after that court’s marriage equality decision went into effect in June 2008. In that case, Strauss v. Horton, the California Supreme Court said that those who had married at a time when same-sex marriage was legal had vested rights in their marital status and everything that went with that status, which could not be taken away by a subsequent constitutional amendment. Kimball found that Utah cases dating back to the 19th century had also taken the position that once a couple was legally married, they had vested marriage rights protected against retroactive rejection by the state.

Utah’s attorneys argued that the California situation with Proposition 8 was distinguishable. The Utah licenses were issued in compliance with an injunction by a single federal trial judge that the state had promptly appealed. Thus, they said, it was not in that sense a final order in the case, unlike the California Supreme Court’s ruling on marriage equality, which could only be overturned by a state constitutional amendment. (That amendment was subsequently ruled unconstitutional by a federal district court in the famous Perry v. Schwarzenegger case, which went into effect last June after the U.S. Supreme Court ruled that the proponents of Proposition 8 did not have standing to appeal the court’s ruling, which had not been appealed by state officials.) Judge Kimball was not persuaded by this distinction, and he also pointed out the strong bias against retroactive application of new legal rulings. The Supreme Court did not issue any explanation about the impact of the stay it issued on January 6, and Judge Kimball pointed out that such an action would not be deemed to have any sort of retroactive effect unless the Supreme Court had voiced such an intention.

He also found that there were strong Utah judicial precedents concerning vested rights in marriage, holding that such rights vest when the marriage was performed. According to Judge Kimball, from the time Judge Shelby issued his injunction until the time the Supreme Court stayed the injunction pending appeal, it was legal for same-sex couples to marry in Utah, and as soon as any such marriage was performed, the couple had vested rights in the marriage that could not be abridged by the state. He pointed out that this was consistent with the Supreme Court’s DOMA ruling, U.S. v. Windsor. “The Windsor Court held that divesting ‘married same-sex couples of the duties and responsibilities that are an essential part of married life’ violates due process,” he wrote.

Judge Kimball went through the wording of the Utah constitutional and statutory same-sex marriage bans, and found that all of those provisions were stated in the present tense and made no mention of retroactive application. Thus, if one construed the Supreme Court stay to have “revived” those provisions while the case was on appeal, there was no basis to apply them retroactively.

“The State argues that application of Utah’s previously existing marriage bans after the Supreme Court’s Stay Order is not retroactive application of the bans because the laws were enacted long before the Plaintiffs entered into their marriages,” he wrote. “However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State’s argument fails to recognize that Utah law defines a retroactive application of a law as an application that ‘takes away or impairs vested rights acquired under existing laws in respect to transactions or considerations already past.’ Under this definition, the State’s application of the marriage bans to place Plaintiffs’ marriages ‘on hold,’ necessarily ‘takes away or impairs vested rights acquired under existing law.” Judge Kimball concluded that even if Judge Shelby’s decision is eventually reversed and the injunction dissolved, the marriages that were performed would remain valid under the vested rights theory and the strong policy against retroactive application of law.

After analyzing the factors applied in the 10th Circuit to determine whether a preliminary injunction should be issued, Judge Kimball found that all the factors had been satisfied. “Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim,” he wrote, and he found that they had also established the necessary irreparable harm if their marriages were not recognized. On the other hand, he found, “The State has no legitimate interest in depriving Plaintiffs of their constitutional rights,” and he also found “no harm to the State based on an inability to apply the marriage bans retroactively.” As to the public interest, “the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs’ marriages.”

The state’s lawyers had asked the court to stay its preliminary injunction so that the state could appeal it to the 10th Circuit. Judge Kimball concluded that “the State has not met its burden of establishing the factors required for a stay pending appeal,” but decided to exercise discretion to grant to the state a “limited 21-day stay during which it may pursue an emergency Motion to Stay with the Tenth Circuit.” His explanation: “The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21-day stay.” However, unless the 10th Circuit responds favorably to the state’s request, Judge Kimball’s order will go into effect requiring recognition of the marriages.

The plaintiffs were represented at the court’s hearing on the preliminary injunction motion by attorneys Erik Strindberg, Joshua A. Block and John Mejia.

Judge Kimball was appointed to the federal district court by President Bill Clinton in 1997 and took senior status and a reduced caseload in November 2009 upon reaching age 70. He teaches at Brigham Young University Law School, and is an active member of the Mormon Church, in which he has held various leadership positions.

Utah Applies for Stay of Marriage Equality Ruling

Posted on: December 31st, 2013 by Art Leonard No Comments

Late this afternoon the state of Utah petitioned the Supreme Court to stay the ruling by U.S. District Judge Robert Shelby in the marriage equality case, Kitchen v. Herbert.  The Petition is addressed to Justice Sonia Sotomayor, who is assigned to hear such petitions emanating from the states in the 10th Circuit.  Last week, a pair of 10th Circuit judges, sitting as a panel to hear such petitions, supported Judge Shelby’s decision to deny a stay.

The state of Utah was caught by this decision without an attorney general, the incumbent having resigned in some sort of scandal earlier in December, so “Acting” Attorney Generals were caught in the middle of a political storm when Judge Shelby’s decision was handed down on Friday, Dec. 20.  Somebody slipped up in that office by not including in their summary judgement motion a request for a stay in case the court granted the plaintiff’s cross-motion.  As a result, Judge Shelby didn’t grant a stay, and rebuffed an attempt by the state to get one through a simple telephone call a few hours after the decision was issued.  Instead, he responded, with careful regard for due process of law, that they would have to file a petition and give the plaintiffs an opportunity to respond.  After considering the papers that were filed and oral argument on Monday, December 23, Shelby denied the stay, ultimately issuing a lengthy opinion justifying his decision.  Then the 10th Circuit motions panel unanimously affirmed Shelby, finding that a stay was not warranted.

The state hired an eminent Idaho litigator, Monte Stewart, and his firm, and the new Attorney General, Sean Reyes, was sworn in yesterday.  So now the new team of Stewart and Reyes, a different crew from those who fell short last week, has taken the reigns, and the Petition filed with the Supreme Court is expertly put together.  I’m in the midst of writing the January issue of Lesbian/Gay Law Notes, and have just composed the following about the stay petition:

“Stewart’s petition argued that the case meets the Supreme Court’s criteria for a stay.  He argued that it is likely that the Supreme Court would grant review to a 10th Circuit decision affirming Shelby’s opinion, likely that the full Court would reverse the 10th Circuit, and that failure to stay the ruling would cause irreparable injury to the state.  On the first point, he’s undoubtedly correct.  A 10th Circuit decision affirming Shelby would probably draw at least four votes on the Court for certiorari, all that is needed for a grant.  The second point is questionable, and depends heavily on trying to repurpose the operative portions of Justice Kennedy’s Windsor decision as a federalism ruling, as it was hopefully characterized in his dissent by the Chief Justice but curtly disputed in his dissent by Justice Scalia.  But all Stewart has to do to win a stay is to persuade a majority of the Court that it is possible that a 10th Circuit decision would be reversed.  His argument on irreparable injury is highly contentious, suggesting that Utah suffers a dignitary injury when a court orders it to let same-sex couples marry against the political will of the state, and arguing that the plaintiffs suffer no injury because they are not being deprived of an “established” constitutional right.  In this, of course, he is arguing that the case is not about the right to marry, but rather about a right of “same-sex marriage.”  This is the same conceptual error that the Supreme Court embraced in Bowers v. Hardwick (1986), and that the majority in Lawrence v. Texas (2003) identified as a fatal flaw in the earlier case.”

It is impossible to predict what will happen with this.  Now the ball is in the plaintiffs’ counsel’s court, and one hopes they quickly come up with a persuasive response.  Somebody is going to be working furiously over the New Year holiday.  It is likely that this petition will be referred by Justice Sotomayor to the full Court, but probably not until later in the week.

P.S. – After writing this I learned that Justice Sotomayor has given plaintiffs’ counsel until noon Friday, January 3, to respond.  So there will be no decision on the Petition until the end of the week, if then. 



Monday Trifecta: Three significant same-sex marriage rulings on December 23, 2013

Posted on: December 23rd, 2013 by Art Leonard No Comments


December 23, 2013, was an incredibly busy day on the same-sex marriage legal front.:  

In Utah, U.S. District Judge Robert Shelby denied a motion by the state to stay his ruling of a few days before holding that same-sex couples have a federal constitutional right to marry, and the state filed an “emergency” appeal to the U.S. Court of Appeals for the 10th Circuit (their third such motion) seeking a stay pending appeal.   Meanwhile, hundreds of same-sex marriages were performed throughout the day in Utah, although a handful of county clerks kept their offices closed to refuse to issue licenses.  The 10th Circuit directed that the plaintiffs in the marriage case file a response to the state’s motion by 5 pm Mountain Time on the 23rd.

In Virginia, U.S. District Judge Michael F. Urbanski rejected a motion by Virginia’s registrar of marriages, Janet M. Rainey, and the Staunton County Clerk, Thomas E. Roberts, to dismiss a marriage equality case that had been filed jointly by Lambda Legal and the ACLU LGBT Rights Project, rejecting their arguments that the plaintiffs lacked standing and the dispute was not “ripe” for adjudication.  At the same time, Judge Urbanski held that Governor Robert F. McDonnell, who was sued in his official capacity, was immune from suit under the 11th Amendment.  Since McDonnell’s term ends shortly, and his elected successor, Democrat Terry McAuliffe, is a marriage-equality supporter, that is just as well.

Finally, in Ohio, U.S. District Judge Timothy S. Black issued an injunction against Ohio officials, mandating that henceforth Ohio death certificates record as married any decedent who had been lawfully married to a same-sex partner in another jurisdiction.  Although Black’s order was narrow, the extensive decision he issued to explain it was worded sufficiently broadly to confirm his view that in light of the Supreme Court’s DOMA decision of June 26, same-sex couples have the right to marry.

But Black based his ruling, however, on a narrower theory: the right to remain married.  “Once you get married lawfully in one state,” he wrote, “another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.”  Furthermore, he wrote, “by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages ( e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection.”

The original plaintiffs in the case before Black were James Obergefell and John Arthur , a same-sex couple who had recently married out-of-state, hoping to tie the knot legally before Arthur, seriously ill with Lou Gehrig’s disease, died, and David Michener, a surviving spouse who had married his partner, William Herbert Ives, just weeks before, only to lose him suddenly and unexpectedly.  Judge Black allowed Robert Grunn, gay funeral director, who handled Mr. Arthur’s funeral in October, to join as a plaintiff.  Under Ohio law, funeral directors have direct responsibility for accessing the state’s database to submit the facts for death certificates, and must attest to their accuracy, placing Grunn in the position of risking prosecution under state law if he listed as married somebody whose marriage would not be recognized under state law.   Judge Block issued preliminary relief during the summer, directing state officials to designate Arthur and Ives as married on their death certificates.  The December 23 ruling made that relief permanent and prospective, requiring  Ohio officials to list similarly situated decedents on death certificates as married.

In explaining his ruling, Judge Black recounted the many ways that Ohio’s refusal to recognize validly-entered same-sex marriages of its gay citizens imposed substantial injuries and complications.  He found that the right to remain married and have one’s state of domicile honor that marriage was a fundamental right, and that at least heightened scrutiny should apply to require the state to prove an important policy reason for refusing to recognize such a marriage when it recognized many other kinds of different-sex marriages contracted out-of-state that could not be contracted within the state.  He found that Ohio failed to meet that burden.

“Defendants cite “’Ohioans’ desire to retain the right to define marriage through the democratic process,’ ‘avoiding judicial intrusion upon a historically legislative function,’ ‘Ohio’s interest in approaching social change with deliberation and due care,’ ‘the desire not to alter the definition of marriage without evaluating steps to safeguard the religious rights and beliefs of others,’ and ‘[p]reserving the traditional definition of marriage,’ although they raise these interests in the context of a rational basis equal protection analysis.,” he wrote.  “In the intermediate scrutiny context, however, these vague, speculative, and unsubstantiated state interests do not rise anywhere near the level necessary to counterbalance the specific, quantifiable, and particularized injuries evidenced here and suffered by same-sex couples when their existing legal marriages and the attendant protections and benefits are taken from them by the state.”

While he conceded that the Supreme Court in Windsor had acknowledged the traditional interest of states in controlling the institution of marriage, he noted that the Supreme Court had intervened in the past to strike down state marriage provisions that violated federal constitutional rights.  That Ohio voters had adopted an anti-gay marriage amendment did not matter, in his view, because federal constitutional rights cannot be abridged by a popular vote.

“The fact that each state has the exclusive power to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages from other co-equal states absent due process of law. Perhaps the interests raised by Defendants may be more compelling in the context of marriage creation than they are in the context of marriages that have already taken place and same-sex relationships that already exist, i.e., marriage recognition.”  This recognition that the state’s interests might be different in a more wide-ranging case undoubtedly led Judge Black to frame his order narrowly, rather than broadly ordering Ohio to recognize same-sex marriages contracted elsewhere in all circumstances.  But he clearly signaled that the logic of the Windsor ruling led in that direction, quoting (as had Judge Shelby in Utah) Justice Antonin Scalia’s dissenting opinion to that effect.

Having concluded that Ohio’s refusal to recognize these marriages violated the due process clause by abridging a fundamental right without sufficient justification, Black could have ended his decision, but instead, picking up on the themes of his original ruling in July when he granted temporary relief to Obergfell and Arthur, he wrote a lengthy equal protection analysis, reaffirming his earlier conclusion that Ohio’s treatment of same-sex marriages differently from first-cousin marriages, and other marriages that might be contracted in other states violated the equal protection rights of same-sex couples.  “Here, in derogation of law,” he wrote, “the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.”  This language was drawn from Justice Anthony Kennedy’s Windsor opinion, in which he said that the federal government could not create “two tiers” of couples, recognizing the marriages of one and not the other, without some rational justification, and the Supreme Court found that the state failed this test.

In a footnote, Black referenced Section 2 of the Defense of Marriage Act, which he had not mentioned in his July ruling, only to dismiss its relevance and suggest that after Windsor it probably could not withstand judicial review.

Black extensively considered the appropriate level of judicial review for an equal protection challenge to Ohio’s refusal to recognize same-sex marriages, and concluded that such sexual orientation discrimination met all the requirements for a suspect classification meriting heightened or strict scrutiny, but concluded that the Ohio policy would not even survive rational basis review.

“Because there is no rational connection between Ohio’s marriage recognition bans and the asserted state interests, this Court can conclude that the ban violates equal protection even without considering whether it is motivated by an impermissible purpose,” he wrote.   “In this case, however, the lack of any connection between Ohio’s marriage recognition bans and any legitimate state interest also leads to the conclusion that it was passed because of, not in spite of, its burden on same-sex couples.”  Citing the Windsor case as his authority on this point, he wrote further, “Even if it were possible to hypothesize regarding a rational connection between Ohio’s marriage recognition bans and some legitimate governmental interest, no hypothetical justification can overcome the clear primary purpose and practical effect of the marriage bans … to disparage and demean the dignity of same-sex couples in the eyes of the State and the wider community. When the primary purpose and effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve some other neutral governmental interest cannot save it from unconstitutionality.”

Finally, Judge Black concluded that granting the injunction would inflict no harm on the state of Ohio or its citizens, while denying it would cause harm to the plaintiffs.  For one thing, it would require amending the death certificates of Arthur and Ives and depriving their surviving spouses of the protections and benefits of the law that Ohio extends to surviving spouses.  For another, it might require the exhumation of Arthur, since he had expressed the wish to be buried next to his husband, and restrictions on his family’s cemetery plots would exclude Obergfell if the marriage were not legally recognized.  And, of course, with the prospective relief sought by Grunn, the funeral director, similar married couples would suffer the same deprivation of rights in the future. 

For Black, the conclusion was clear, and he granted the injunctive relief.  The Governor and Attorney General of Ohio announced they would appeal the ruling to the U.S. Court of Appeals for the 6th Circuit.