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Posts Tagged ‘Virginia Attorney General Mark Herring’

Florida Federal Court Rules for Marriage Equality; 10th Circuit Stays Colorado Ruling; Virginia Clerk Petitions for Certiorari

Posted on: August 24th, 2014 by Art Leonard No Comments

There were several developments on the marriage equality front late last week.  On August 21, U.S. District Judge Robert L. Hinkle, of the Northern District of Florida, granted a preliminary injunction to the plaintiffs in Brenner v. Scott, 2014 WL 4113100, a consolidation of two marriage equality cases, but stayed his ruling pending the state’s appeal to the U.S. Court of Appeals for the 11th Circuit.  On the same day, two judges of the U.S. Court of Appeals for the 10th Circuit granted a motion by Colorado Attorney General John Suthers to stay a marriage equality Order by U.S. District Judge Raymond P. Moore, who had ruled on July 23 that Colorado’s same-sex marriage ban violates the 14th Amendment.  Finally, on August 22, Norfolk County, Virginia, Clerk of Court George E. Schaefer, III, one of the defendants in the Virginia marriage equality case, filed a Petition for Certiorari with the U.S. Supreme Court, seeking review of the 4th Circuit’s July 28 decision finding Virginia’s same-sex marriage ban unconstitutional.

Judge Hinkle’s ruling on the merits was relatively brief in light of the growing list of prior federal marriage equality rulings that has accumulated since the Utah decision from last December 20 by District Judge Robert Shelby.  In his introductory section, after briefly summarizing the background of the case, Judge Hinkle wrote, “Indeed, except for details about these specific parties, this opinion could end at this point, merely by citing with approval the circuit decisions striking down state bans on same-sex marriage,” citing the 10th Circuit’s Utah and Oklahoma cases and the 4th Circuit’s Virginia case.  But since Hinkle was the first district court to rule on a marriage equality claim within the 11th Circuit (which includes Alabama and Georgia as well as Florida), he clearly felt obliged to provide an explanation for his ruling.

He explained the obligation of federal courts to strike down unconstitutional state laws “when necessary to the decision in a case or controversy properly before the court, so the suggestion that this is just a federalism case — that the state’s laws are beyond review in federal court – is a nonstarter.”  He also noted that because 20 out of the 22 plaintiffs in the cases before him were seeking recognition of marriages performed in other states, “the defendants’ invocation of Florida’s prerogative as a state to set the rules that govern marriage loses some of its force.”  He also found that the “general framework” that applies to the plaintiffs’ rights to due process and equal protection “is well settled.”

Relying on the Virginia interracial marriage decision from 1967, Loving v. Virginia, and subsequent rulings by the Supreme Court, he agreed with the 10th and 4th Circuits that this case involves a fundamental rights claim, requiring strict scrutiny of the state’s purported justifications for denying marriage rights to same-sex couples.  Judge Hinkle provided a very clearly written argument as to why this is a fundamental rights case.

In discussing the application of strict scrutiny, he wrote, “A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest.  A variety of justifications for banning same-sex marriages have been proffered by these defendants and in many other cases that have plowed this ground since Windsor [the Supreme Court’s 2013 DOMA decision].  The proffered justifications have all been uniformly found insufficient.  Indeed, the states’ asserted interest would fail even intermediate scrutiny, and many courts have said they would fail rational-basis review as well.  On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive.  All that has been said there is not repeated here.”

However, Judge Hinkle was moved to address the state’s procreation argument.  “The defendants say the critical feature of marriage is the capacity to procreate.  Same-sex couples, like opposite-sex couples and single individuals, can adopt, but same-sex couples cannot procreate.  Neither can many opposite-sex couples.  And many opposite-sex couples do not wish to procreate.  Florida has never conditioned marriage on the desire or capacity to procreate.  Thus individuals who are medically unable to procreate can marry in Florida.  If married elsewhere, their marriages are recognized in Florida. The same is true of individuals who are beyond child-bearing age.  And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to do so, are allowed to remain married.  In short, the notion that procreation is an essential element of a Florida marriage blinks reality.”

“Indeed,” Hinkle continued, “defending the ban on same-sex marriage on the ground that capacity to procreate is the essence of marriage is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that, in another context, might be ‘accompanied by a suspicion of mendacity.’  The undeniable truth is that the Florida ban on same-sex marriages stems entirely, or almost entirely, from moral disapproval of the practice.  Properly analyzed, the ban must stand or fall on the proposition that the state can enforce that moral disapproval without violating the Fourteenth Amendment.”  And who is Judge Hinkle’s source for this assertion?  Our old unintended ally in the marriage equality struggle, Supreme Court Justice Antonin Scalia.  Judge Hinkle quotes his statements to this effect from Scalia’s dissent in Lawrence v. Texas, the 2003 sodomy law decision.

“In short,” wrote Hinkle, “we do not write on a clean slate.  Effectively stripped of the moral-disapproval argument by binding Supreme Court precedent, the defendants must fall back on make-weight arguments that do not withstand analysis.  Florida’s same-sex marriage provisions violate the Due Process and Equal Protection Clauses.”  The judge went on quickly to dispose of the state’s remaining argument that his ruling was precluded by the Supreme Court’s 1972 dismissal of a marriage equality appeal from Minnesota in Baker v. Nelson.  “Every court that has considered the issue has concluded that the intervening doctrinal developments — as set out in Lawrence, Romer, and Windsor – have sapped Baker’s precedential force,” he wrote.

He also rejected the argument that he was bound by an 11th Circuit ruling issued shortly after Lawrence, in which that court resisted a constitutional challenge to Florida’s statutory ban on gay people adopting children, pointing out that it was a rational basis case, and that the state courts had subsequently invalidated the statute under the state constitution.  According to Judge Hinkle, that 11th Circuit ruling makes it the “law of the circuit” that sexual orientation equal protection claims do not get heightened scrutiny, but since he was treating this case as a fundamental rights claim, that was not relevant to his decision.

Judge Hinkle concluded that plaintiffs were entitled to a preliminary injunction barring Florida from enforcing its ban.  However, he found that there is a “substantial public interest in implementing this decision just once – in not having, as some states have had, a decision that is on-again, off-again.”  Thus, although he might be inclined to deny a stay pending appeal, the examples from the past year counseled against that route.  “There is a substantial public interest in stable marriage laws,” he wrote.  “A stay thus should be entered for long enough to provide reasonable assurance that the opportunity for same-sex marriages in Florida, once opened, will not again close.  The stay will remain in effect until stays have been lifted in Bostic, Bishop, and Kitchen [the 10th and 4th Circuit cases that have been stayed pending Supreme Court appeals], and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the 11th Circuit or the Supreme Court.”

The judge did make one exception, however, for a plaintiff who was seeking to have a properly completed death certificate for her deceased spouse.  “There is little if any public interest on the other side of the scale,” wrote Hinkle.  “There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse’s death certificate.  Indeed, the state’s refusal to let that happen is a poignant illustration of the controversy that brings us here.”

In the course of his ruling, Hinkle dismissed as defendants the governor and attorney general, finding that other state officials who were responsible for administering the relevant laws directly were the most suitable defendants.  He directed that Florida’s Surgeon General “must issue a corrected death certificate for Carol Goldwasser showing that at the time of her death she was married to Arlene Goldberg,” and set a deadline of the later of September 22, 2014 or 14 days after all information is provided that would normally be necessary to complete a death certificate.

Florida Attorney General Pam Bondi reacted to the decision by reaffirming her commitment to defend the Florida marriage ban.  Appeals from four state court rulings are already pending in the Florida court of appeal, and Bondi has argued that these cases should be put “on hold” as other appellate cases are going forward to the Supreme Court.  Presumably she will notice an appeal of Judge Hinkle’s decision with the 11th Circuit, but she might ask the Circuit to delay scheduling consideration of the case until the Supreme Court acts on the petitions from Utah, Virginia, and one expected to be filed from Oklahoma.  However, the plaintiffs would be expected to strongly oppose any such request, arguing that any delay in vindicating their constitutional rights would impose irreparable injuries on the plaintiffs.

Judge Hinkle was nominated to the federal bench by President Bill Clinton in 1996.  The two cases the judge was deciding were brought by private attorneys and the ACLU of Florida.

The 10th Circuit’s decision to stay the Colorado ruling was fully expected, in light of that court’s decision to stay its own Utah and Oklahoma rulings while the defendants in those cases petitioned the Supreme Court for review.  The brief Order from the court cited those prior actions and said that this stay was being issued “in the interests of consistency,” noting as well that just the day before the Supreme Court had issued a stay in the 4th Circuit’s Virginia case.

In that Virginia case, George Schaefer’s petition for Supreme Court review sounded very much like the petition filed earlier by the state of Utah in seeking review of the 10th Circuit’s marriage equality decision.  Schaefer argued that this is at heart a federalism case — who decides whether same-sex couples can marry, federal courts or the Virginia legislature and electorate? — and, echoing Chief Justice John Roberts’ dissent in the Windsor case, that the 4th Circuit’s disposition of the case was inconsistent with Windsor.  He also argued that the 4th Circuit had not properly identified the right at issue, thus mistakenly holding that plaintiffs were not seeking the recognition of a new constitutional right, but rather the existing right to marry.  Perhaps the most salient part of Schaefer’s petition was his argument about why the Court should grant his petition rather than the one filed a few weeks ago by Virginia Attorney General Mark Herring.  Herring, who has become a marriage equality advocate and who directed that the state “change sides” in this lawsuit, filed his petition for review even though he agreed with the 4th Circuit’s ruling, pointing out that the state would continue to enforce the marriage ban until instructed not to do so in a definitive ruling and that he wanted to move the case forward expeditiously to the Supreme Court.  Schaefer point out that as a consistent, vigorous defender of the ban, he was the better party to appeal the 4th Circuit’s ruling to the Court.  He also pointed out that this would not preclude Herring from participating as an amicus on the side of the plaintiffs.

Schaefer hired S. Kyle Duncan of Washington D.C. and two lawyers from Chesapeake, Virginia, to represent him on the Supreme Court appeal.  The plaintiffs are represented by lawyers from the ACLU and Lambda Legal together with pro bono attorneys from private firms in the Harris case (Virginia class action) and Ted Olson and David Boies for the American Foundation for Equal Rights in the Bostic (individual plaintiffs) case.  If the state of Virginia gets to argue in the Supreme Court, it would be represented by Solicitor General Stuart Raphael, who signed Herring’s petition to the Court.

Virginia’s Cert Petition in the Marriage Equality Case

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

Virginia Attorney General Mark Herring filed a petition for certiorari in the Supreme Court on August 8 on behalf of Virginia State Registrar Janet M. Rainey, a named defendant in Bostic v. Rainey, one of the two challenges to Virginia’s same-sex marriage ban decided by the U.S. Court of Appeals for the 4th Circuit on July 28.  (The other, Harris v. Rainey, was joined for decision at the requestof the plaintiffs, after the district court put their case “on hold” pending a decision in the Bostic appeal.)  Herring’s Petition is a bit unusual in that he is asking the Supreme Court to grant review of the case and then affirm the decision below holding the state’s ban unconstitutional.  On the other hand, in the recent saga of marriage equality litigation, this is perhaps not so unusual, as Herring is in the same position as was U.S. Attorney General Eric Holder, when the Solicitor General’s Office under his direction petitioned the Supreme Court to review and affirm the 2nd Circuit’s decision in Windsor v. United States, challenging the constitutionality of Section 3 of the Defense of Marriage Act.

Herring’s Petition, actually filed by counsel of record Stuart A. Raphael, Virginia’s Solicitor General who argued the case for the state in the 4th Circuit (listing as well on the brief Deputy Solicitor General Trevor S. Cox), makes a strong bid for the Court to take this case in preference to the pending cases from Utah and Oklahoma as the best vehicle for the Court to address the question that it decided not to address in June 2013 when it held that the Proposition 8 litigation could not be addressed on the merits by the Supreme Court because the petitioners lacked Article III standing to bring the appeal.

Therein lies Herring’s strongest argument for granting this petition in preference to the others recently filed from Utah and Oklahoma:  As of December 2012, at least four members of the Court had decided that the question whether states are obligated by the 14th Amendment to allow same-sex couples to marry was deemed worthy of Supreme Court review, although the Court then signaled its jurisdictional concerns by adding the question of Petitioners’ standing to the grant of certiorari.  But Herring has other strong arguments to make as to why Virginia’s Petition is the best one to grant:  There is no possible standing problem in this case, as two county clerks of court are also petitioning for review and are vigorously defending the Virginia ban using qualified outside counsel.  (The Virginia Attorney General’s office does not provide legal counsel to the independently elected county clerks.)  By contrast, there may be a standing question in Utah, where the Salt Lake County clerk decided not to join the appeal of the case, and there is some question whether the Attorney General and Governor are appropriate defendants-appellants.  There is a standing issue as to the recognition question in the Oklahoma case, which resulted in the 10th Circuit’s Oklahoma ruling being more narrowly focused just on the right-to-marry issue.  Furthermore, he argues, Virginia’s ban is the most wide-ranging and exclusionary of those states whose Petitions are now before the Court.

But there are good traditional reasons for the Court to grant a Petition in at least one and possibly several of the marriage equality cases when it reconvenes later in September to review the summer petitions received.

Although there have now been about three dozen consecutive federal constitutional rulings in favor of marriage equality by state or federal trial courts and two federal courts of appeals, if one casts the chronological net back before Windsor there are certainly enough contrary rulings to say that there is a split of appellate authority on the questions presented by this case.   One of the most significant factors considered by the Court in deciding to grant review is whether lower courts are divided on the question presented.  The 8th Circuit rejected a 14th Amendment challenge to Nebraska’s marriage amendment as recently as 2006, and the highest courts of several states rejected similar challenges under their analogous constitutional provisions.  The Virginia Petition cites as examples the Washington Supreme Court’s 2006 decision, a dismissal of an appeal from an adverse decision in Arizona in 2004, and the three early 1970s cases from Washington State, Minnesota and Kentucky.  Surprisingly, the Petition does not cite the relatively recent adverse decisions from New York and Maryland, perhaps because both of those states have since become marriage equality jurisdictions – but the same could be said of Washington and Minnesota, of course, both of which legislated for marriage equality in recent years.  The overriding point remains, however: there is an actual split of U.S. appellate authority over whether denying same-sex couples the right to marry denies them liberty and equality protection in violation of constitutional norms.  Furthermore, there are appellate arguments pending in the 7th and 9th Circuits, and by the time the Court reconvenes to evaluate petitions, there may be one or more decisions from the 6th Circuit as well.  There is litigation pending in every state that does not allow same-sex marriages.  Clearly there is a national controversy to resolve.

Furthermore, after listing to the oral arguments before the 6th Circuit last week in cases from Michigan, Ohio, Indiana and Kentucky, it seems possible that there may be a first post-Windsor circuit split, depending how Judge Jeffrey Sutton, the likely swing voter, resolves his doubts.  Sutton did indicate that if one were to subject the marriage bans to heightened scrutiny, they would probably fall.  But he also seemed to signal a willingness to find the 6th Circuit bound by prior precedent not to accord heightened scrutiny, and even to find the challenges foreclosed in lower federal courts by the Supreme Court’s 1972 pronouncement in Baker v. Nelson, the Minnesota case, that the issue of same-sex marriage did not present a substantial federal question.  Every court to rule thus far since Windsor has rejected that argument, pointing out that as of 1972 it was a plausible assertion but remains so no longer in light of cases like Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor.  Of course, Baker is not binding in any sense on the Supreme Court itself, as it can certainly decide that what was not a “substantial question” in 1972 has become one as a result of intervening decisions and new understanding of the facts.

The Petition persuasively argues in support of the 4th Circuit’s fundamental rights analysis, but also makes a persuasive argument, within the limited confines of a Petition for Certiorari, of the equal protection arguments that could be made in support of heightened scrutiny.  While pointing out that many of the post-Windsor rulings (including the trial court ruling in this case) found no rational basis for the marriage ban, a route that the Supreme Court could take without opining on whether anti-gay discrimination necessarily merits heightened scrutiny, the Petition makes a telling argument for heightened scrutiny.  After summarizing the factors that the Supreme Court has looked to in the past in deciding whether a form of discrimination merits heightened scrutiny — that is, is deemed to employ a “suspect classification” – the Petition states:

“Yet a single unifying principle underlies all four considerations.  Courts apply heightened and strict scrutiny because they are properly suspicious of laws that discriminate based on traits that are often the subject of stereotypes and prejudice — traits like race, national origin, gender, and illegitimacy.  We put a heavy burden on government to justify laws that rely on suspect classifications like those.  It defies credulity to argue that courts have no reason to be similarly suspicious of laws that discriminate against gay people.”

The Petition observes that the question of heightened scrutiny was fully brief and argued in the Proposition 8 case, but was not decided because of the way the Court dispensed with that case.  This new appeal would provide the Court with another opportunity to take on that issue, if it wants to.

In reviewing this Petition, I discovered only one outright error — attributing the dissent in the 2nd Circuit in Windsor v. U.S. to the wrong judge.  Otherwise, it is a masterful job and one hopes would be very persuasive to the Supreme Court.

It is very clear that the only way the incredible string of marriage equality victories in the lower courts will ultimately pay off will be if the Supreme Court allows them to go into effect.  They are all stayed at present awaiting definitive appellate resolution.  If the Court decides it should duck this issue and dismiss the various petitions that come in, then the marriage equality rulings will go into effect piecemeal, circuit by circuit, and there may remain areas in the country where same-sex marriage remains unavailable, due to adverse circuit rulings or the lack of circuit rulings as remaining cases get bogged down.  Peculiarly, as other circuits have put these cases on an expedited calendar, the 5th Circuit has dragged its heels, not scheduling oral argument in the Texas case, where an appeal was docketed on March 1.  And there is no marriage equality appeal pending in the 8th or 11th Circuits, where things are still mired in the district courts or state courts.

As these Certiorari Petitions are being filed, the law reviews are starting to fill up with interesting articles positing various theories about how U.S. v. Windsor can be used to construct a winning marriage equality argument.  Most of these articles seem to have been written last winter, before most of the 36 marriage equality rulings from lower courts.  A few of the more recent ones make particularly interesting reading, and I hope that attorneys writing future Certiorari Petitions and merits briefs will take a look at them, because there are some new ideas about how to formulate the arguments that might prove helpful.  I’ll list a few of the recent articles and suggest that the most recent, by Chris Bower, struck me as particularly ingenious:

Chris Bower, Juggling Rights and Utility: A Legal and Philosophical Framework for Analyzing Same-Sex Marriage in the Wake of United States v. Windsor, 102 Cal. L. Rev. 971 (August 2014).

Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 Sup. Ct. Rev. 183 (2013).

Perry Dane, Natural Law, Equality, and Same-Sex Marriage, 62 Buff. L. Rev. 291 (April 2014).

Michael Dorf and Sidney Tarrow, Strange Bedfellows: How an Anticipatory Countermovement Brought Same-Sex Marriage Into the Public Arena, 39 L. & Soc. Inq. 449 (Spring 2014).

Jeremiah A. Ho, Weather Permitting: Incrementalism, Animus, and the Art of Forecasting Marriage Equality after U.S. v. Windsor, 62 Clev. St. L. Rev. 1 (2014).

Christopher R. Leslie, Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny, 99 Cornell L. Rev. 1077 (July 2014).

Mark Strasser, Windsor, Federalism, and the Future of Marriage Litigation, 37 Harv. J. L. & Gender 1 (Nov. 2013).

Kenji Yoshino, The Anti-Humiliation Principle and Same-Sex Marriage, 123 Yale L.J. 3076 (June 2014).