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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.

Supreme Court Stays Virginia Marriage Ruling

Posted on: August 20th, 2014 by Art Leonard No Comments

The Supreme Court issued an unsigned order today staying the 4th Circuit’s mandate in Bostic v. Schaefer, the Virginia marriage equality case.  The 4th Circuit panel had rejected Prince William County Clerk Michele McQuigg’s motion to stay pending Supreme Court review, and McQuigg promptly renewed her request for a stay by filing the motion with Chief Justice John Roberts.  Roberts requested input from the other parties, and then referred the matter to the full Court, which issued the unsigned order on August 20.  If the order had not been issued, the 4th Circuit’s ruling would have gone into effect tomorrow morning, August 21, at 8 am.

Virginia Attorney General Mark Herring has already filed a petition for certiorari with the Supreme Court seeking review and affirmance of the 4th Circuit’s decision.  He had supported McQuigg’s motion for a stay.  The plaintiffs in the underling cases, represented by the ACLU and Lambda Legal, had opposed the stay request, and urged the Court that if it were to stay the 4th Circuit ruling, it move quickly to grant cert and decide the case on the merits.

County clerks and various licensed marriage celebrants in Virginia were already gearing up for the possibility of issuing licenses and performing ceremonies on August 21, since Virginia law does not require couples to observe any waiting period after getting their licenses.  But the Supreme Court’s granting of the stay was really no surprise, because it stayed the 10th Circuit’s Utah marriage ruling and, as lower courts have generally acknowledged, sent a clear signal that if a state wants to appeal a marriage equality ruling, the Supreme Court is willing to stay the ruling pending appeal.

If one applies the “guidelines” that the Supreme Court has set out in the past as its standard for granting stays pending appeal, then one can attribute to this stay ruling a view among the Justices that it is likely that a petition for certiorari will be granted in a marriage equality case this term, that there is at least a fair possibility that the Supreme Court might reverse the 4th Circuit’s decision, that irreparable harm to the state might result from allowing the 4th Circuit’s decision to go into effect and the balance of equities weighs in favor of the party seeking the stay.  But I would question how stringently the Court is applying these standards, and I think the issuance of this stay is more about politics and prudence than about applying these tests.

On the one hand, it seems highly likely to me that the Court will grant cert in one of the pending marriage equality cases.  Since U.S. v. Windsor last year, the Court’s latest word on same-sex marriage, was a 5-4 decision, there is certainly a “fair” possibility that the swing voter in the prior case could swing the other way on this one, and marriage equality proponents should not count any chickens before they are hatched.  But the rhetoric of Justice Anthony Kennedy’s opinions in Windsor, Lawrence v. Texas and Romer v. Evans strongly suggests that he may rule similarly in favor of the plaintiffs-respondents if the Court grants cert in the Utah, Oklahoma or Virginia cases.  As to irreparable harm, unless one accepts without question the contention that a state suffers irreparable harm every time a federal court blocks the enforcement of a state law, no matter how ill-conceived or potentially unconstitutional is the law, I have trouble seeing it.  Now that same-sex couples have been getting married in 19 states and the District of Columbia, in some states for several years, it is possible to see quite clearly that allowing such marriages to take place or be recognized does not cause any irreparable harm to the states.  In terms of the balance of the equities, it seems pretty clear that the harm to a state is to its “sovereign dignity” but will not adversely affect the public welfare or the economy of the state or its institution of marriage, whereas delaying the marriage rights of same-sex couples could clearly work irreparable injuries to them in terms of dignitary and economic losses, and even loss of life and liberty.  So the balance of the equities on these stay petitions clearly favors the respondents, in my opinion.

At any rate, what the Supreme Court says, even without explanation of its reasoning, is binding upon all parties, so the 4th Circuit’s mandate is stayed.

In its Order, the Court is very specific in providing that the stay will automatically be dissolved if the Court denies the petition for certiorari that Clerk Michele McQuigg is expected to file.  This suggests to me that if the Court decides to grant one of the other petitions, it will “hold” the McQuigg petition and neither deny nor grant it until it has decided on the merits the case that it accepts for review.

On the other hand, the Court is also very specific in stating that if the petition is granted, “the stay shall terminate upon the sending down of the judgment of this Court.”  Perhaps, as Chris Geidner suggests in his report on today’s Order, this is intended to avoid the court of appeals “jumping the gun” and allowing same-sex couples to start marrying right away upon announcement of the Supreme Court’s opinion, as happened in 2013 when the 9th Circuit lifted its stay shortly after the Supreme Court dismissed the appeal in Hollingsworth v. Perry on jurisdictional grounds.  The big difference, of course, is that in Hollingsworth the stay had been granted by the 9th Circuit at the request of the appellants, so it was up to the 9th Circuit when to lift it.  In this case, however, the stay is being granted by the Supreme Court (having previously been denied by the 4th Circuit), so it is the Supreme Court that sets the terms, and presumably the Court will not “send down” its judgment formally to the court of appeals until the time has expired for filing motions for reconsideration or for reargument.  Thus, if the Supreme Court affirms the 4th Circuit, the Court will retain control over the timing of its decision going into effect.  This seems like a pragmatic move, inasmuch as a sweeping Supreme Court marriage equality ruling will require the remaining 31 states that ban same-sex marriage to make whatever adjustments are necessary to their forms and procedures in order to facilitate the volume of license applications they may subsequently experience, as well as the filing of stepparent adoption petitions, employee benefit plan enrollment forms, etc., from already-married same-sex couples seeking recognition of their marriages.  There might even be a small flood of pent-up divorce petitions….

To those unfamiliar with the workings of the Supreme Court and the appellate process, do not be misled by headlines reporting today’s development along the lines of “Supreme Court Blocks Virginia Same-Sex Marriages.”  While it is technically true that the stay “blocks” same-sex couples from marrying in Virginia on August 21, this is not a ruling on the merits by the Supreme Court, and it does not represent a judgment by the Court that same-sex couples are not entitled to marry.  It is a technical move by the Court to preserve its jurisdiction and the orderly appellate process by relieving the state of Virginia of the obligation to ignore its same-sex marriage ban until the Supreme Court has decided whether to weigh in on the controversy.

And, Justice Ruth Bader Ginsburg has already stated publicly her opinion that the Court will not “duck” a ruling on marriage equality this time around, as it did in 2013 in the California Prop 8 case.  The pending cert petitions present no major jurisdictional impediment to a ruling on the merits.  If the Court grants review in one of the marriage equality cases, there is likely to be a ruling on the merits before the end of the term that gets underway on October 6 — most likely sometime in the spring or early summer of 2015.

4th Circuit Votes to Strike Down Virginia’s Ban on Same-Sex Marriages

Posted on: July 28th, 2014 by Art Leonard 1 Comment

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit voted 2-1 to declare Virginia’s ban on same-sex marriage unconstitutional.  The opinion for the court issued on July 28 in Bostic v. Schaefer, 2014 U.S. App. LEXIS 14298, 2014 WL 3702493, did not go into immediate effect.  The court’s rules give the defendants up to two weeks to file a motion for rehearing or en banc review, or to file a notice to all parties that they are seeking review in the Supreme Court.  If the defendants don’t take any of those steps, the mandate must be issued within seven days, so the earliest date this ruling would go into effect would most likely be August 18.  However, since the two county court clerks who are the appellants are represented by Alliance Defending Freedom, a right-wing litigation group strongly dedicated to opposing same-sex marriage, it seems likely that a motion for en banc review or a petition to the Supreme Court will be filed, which would stay the ruling until the Supreme Court disposes of the case.

The circuit court’s decision will dictate the result of pending litigation in North and South Carolina and West Virginia, where pending cases have been “on hold” while the district judges waited to see what the 4th Circuit would do.  Those district judges might decide to wait to see whether there is further review before issuing their rulings, however.  One state in the 4th Circuit, Maryland, already has marriage equality as a result of state legislation ratified by the voters in 2012.

The consolidated cases decided by the 4th Circuit, Bostic v. Schaefer and Harris v. Rainey, took a circuitous route to get to the appeals court.  After the Supreme Court issued its decision on June 26, 2013, striking down Section 3 of the Defense of Marriage Act, the ACLU’s LGBT Rights Project announced that it was seeking plaintiffs for a lawsuit to challenge Virginia’s marriage ban, which is contained in statutes and a constitutional amendment.  While the ACLU was preparing its case, to be filed in the U.S. District Court for the Western District of Virginia, a same-sex couple in Norfolk, which is in the Eastern District of Virginia, decided to go forward on their own with their own private attorney.  Timothy Bostic and Tony London filed their lawsuit and the ensuing publicity brought an offer by the American Foundation for Equal Rights (AFER), which had litigated against California Proposition 8, to provide representation by Ted Olson and David Boies.  AFER’s offer was accepted, and the new legal team expanded the lawsuit by adding another couple as plaintiffs, Carol Schall and Mary Townley, who had married in California in 2008 and were seeking recognition of their marriage.

Olson and Boies pushed their case ahead more quickly than the ACLU, which filed its lawsuit shortly after the Bostic case was filed.  The ACLU focused on getting the trial judge in the Western District, Michael Urbanski, to certify their case as a class action, seeking to ensure that a win would be binding throughout the state.  Olson and Boies focused on pushing forward quickly to a summary judgment that would get their case up to the court of appeals, and District Judge Arenda L. Wright Allen accommodated them with a grant of summary judgment on Feburary 13, which she stayed pending appeal.  When the appeal was filed, the ACLU moved to intervene on behalf of their plaintiff class, as Judge Urbanski had put their case on hold pending a ruling by the 4th Circuit, and it was agreed that the ACLU would participate in the briefing and argument.

Things were also complicated on the defense side of the case.  Bostic and London had originally sued the governor and attorney general, as well as the local clerk in Norfolk who would not take their marriage application.  After the Schall-Townley plaintiffs were added, the amended complaint added Virginia State Registrar Janet Rainey, whose office plays a role in recognizing out-of-state marriages, as a defendant. The 2013 election in November turned out the Republicans and brought in the Democrats, and the new state leadership, Governor Terry McAuliffe and Attorney General Mark Herring, are marriage equality supporters who were not inclined to defend the ban.  Herring filed notices with the courts that the state would not provide a defense, which left that role to the clerks:  Norfolk Clerk George E. Schaefer, III, and Michele McQuigg, the Prince William County Clerk whose motion to intervene had been granted shortly before Herring, who was representing Rainey, notified the court that he would not offer a defense.  David Oakley, a local attorney from Chesapeake, Virginia, and Austin Nimocks, an attorney from Alliance Defending Freedom, a right-wing religious litigation group opposed to same-sex marriage, ended up representing the clerks in appealing Judge Wright Allen’s ruling.

At the oral argument before the three-judge panel in Richmond on May 13, Oakley and Nimocks argued for the clerks, Virginia Solicitor General Stuart Raphael argued on behalf of Rainey (now representing the Virginia executive branch’s position that the ban was unconstitutional), Olson argued for the AFER plaintiffs, and James Esseks, Director of the ACLU’s LGBT Rights Project, argued for the class action plaintiffs.

The three-judge panel selected for the argument was suitably diverse.  The senior member of the panel, Paul V. Neimeyer, was appointed to the court by George H.W. Bush in 1990.  Roger L. Gregory was appointed by Bill Clinton toward the end of his second term, was blocked in the Senate, and then was reappointed by George W. Bush as part of a deal to break a deadlock over Bush’s first group of appellate appointees.  Gregory is the first African-American to serve on the 4th Circuit.  Finally, the junior member of the panel, who ended up writing the opinion for the court, was Henry F. Floyd, appointed by Barack Obama in 2011.

Floyd’s opinion followed closely on the path set by the 10th Circuit Court of Appeals in June when it struck down the Utah marriage ban.  Both courts, faced with prior circuit precedent holding that sexual orientation discrimination claims were subject to deferential rational basis review, avoided that route entirely, instead basing their decisions on the conclusion that the plaintiffs were being denied a fundamental right, which required the court to subject the state marriage ban to strict scrutiny.  Under the strict scrutiny test, a challenged law can only survive if it is narrowly tailored to achieve a compelling state interest.  Most laws subjected to strict scrutiny are held unconstitutional.

Before getting to the main issue, however, Floyd contended briefly with the defendants’ contention that the plaintiffs lacked standing to bring the case, a make-weight argument of virtually no substance in these lawsuits, and that the Supreme Court had foreclosed this challenge by its 1972 ruling in Baker v. Nelson, a Minnesota case, that same-sex marriage did not present a “substantial federal question.”  Floyd pointed out that “every federal court to consider this issue since the Supreme Court decided U.S. v. Windsor [the DOMA case] has reached the same conclusion,” that the old case is no longer relevant.  He then cited the 10th Circuit’s ruling and ten U.S. District Court rulings.  He also quoted Justice Ruth Bader Ginsburg’s comment when this issue was raised during the oral argument in the Proposition 8 case: “Baker v. Nelson was 1971.  The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. . .  Same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

Turning to the main issue, Floyd asserted that the plaintiffs in this case were not seeking a new constitutional right – a right of same-sex marriage – but rather an individual right to get married to the partner of their choice.  As such, the majority of the court saw this case as falling into the same category as Loving v. Virginia, the Supreme Court ruling from 1967 that struck down Virginia’s ban on interracial marriages.  Floyd went through the various Supreme Court right-to-marry cases, finding a common thread supporting the plaintiffs’ contention.  “Over the decades,” he wrote, “the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”  After briefly describing the most important marriage precedents, he wrote, “These cases do not define the rights in question as ‘the right to interracial marriage,’ ‘the right of people owing child support to marry,’ and ‘the right of prison inmates to marry.’  Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.  The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of ‘freedom of choice’ that ‘resides with the individual.’  If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.”

Dissenting, Judge Niemeyer vehemently disagreed.  “In reaching this conclusion,” he argued, “the majority has failed to conduct the necessary constitutional analysis.  Rather, it has simply declared syllogistically that because ‘marriage’ is a fundamental right protected by the Due Process Clause and ‘same-sex marriage’ is a form of marriage, Virginia’s laws declining to recognize same-sex marriage infringe the fundamental right to marry and are therefore unconstitutional. . .  This analysis is fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly-proposed relationship of a ‘same-sex marriage.’  And this failure is even more pronounced by the majority’s acknowledgement that same-sex marriage is a new notion that has not been recognized ‘for most of our country’s history.’  Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.”  Niemeyer also suggested that the majority’s approach would lead to the argument that polygamous and incestuous marriages came within the fundamental right to marry.

The difference between the majority and the dissent over whether a fundamental right was involved was determinative of their outcomes.  Judge Floyd examined the five rationales advanced by the county clerks for maintaining a ban on same-sex marriage and found that none of them met the test of strict scrutiny.  Judge Niemeyer asserted confidently that several of these rationales would suffice to uphold the ban under the rational basis approach.  While disclaiming any view about whether same-sex couples should be allowed to marry as a matter of public policy, Niemeyer asserted that this was a decision for the state to make, and its voters had made the decision by adopting their marriage amendment.

Judge Floyd’s discussion of the various state rationales followed now-familiar paths after two dozen prior marriage equality rulings by federal courts.  There was the usual quotation from Justice Scalia’s dissent in Windsor, the usual invocation of an amicus brief from various learned professional association’s pointing out the consensus of reputable authority on the parenting abilities of same-sex couples, and the usual observation that denying marriage to same-sex couples disadvantaged their children without in any way increasing the likelihood that different-sex couples would forgo procreating outside of marriage.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Judge Floyd.  “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.  Civil marriage is one of the cornerstones of our way of life.  It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security.  The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life.  Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

With his dissent, Judge Niemeyer became only the second federal judge to rule against a marriage equality claim since the ruling last December by U.S. District Judge Robert Shelby that the Utah marriage ban was unconstitutional.  The first, of course, was the dissenting 10th Circuit judge, Paul Joseph Kelly, also appointed by the first President Bush a quarter century ago.  Every other federal judge to rule in a marriage equality case, regardless the party of the president who appointed her or him, has ruled for marriage equality.

There are fourteen active judges serving on the 4th Circuit, nine of whom were appointed either by Bill Clinton (counting Judge Gregory) or Barack Obama.  Faced with that line-up, it seems most likely that the clerks’ attorneys would by-pass a motion for en banc review and petition the Supreme Court directly, as the state of Utah has indicated that it will do in response to the 10th Circuit’s ruling.

Virginia Marriage Equality Ruling Both a Big Deal and the New Normal

Posted on: February 14th, 2014 by Art Leonard No Comments

Since the U.S. Supreme Court ruled last year that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition for same-sex marriages, was unconstitutional, a wave of litigation over marriage equality has descended on the federal (and some state) trial courts, and so far every judge who has ruled on a motion for summary judgment has concluded that bans on performing or recognizing same-sex marriages violate the 14th Amendment of the U.S. Constitution as a matter of law. In that sense, there is really nothing new about U.S. District Judge Arenda L. Wright Allen’s decision in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19080, announced on February 13 in the case of Bostic v. Rainey, holding Virginia’s ban on same-sex marriage unconstitutional, since the opinion falls within what is now the mainstream of a growing body of trial court decisions issued by judges of just about every political stripe.

On the other hand, each of the decisions issued so far, by federal judges in Ohio, Utah, Oklahoma, Kentucky, and now Virginia, presents its own particular perspective on the issue, and each of the judges has managed to inject his or her own brand of eloquence in explaining why the quest for equal marriage rights deserves to win.

Judge Wright Allen, who was appointed to the bench by President Obama and unanimously confirmed by the Senate in 2011, prefaces her decision with a lengthy quote from a public statement issued by Mildred Loving, one of the parties in the historic 1967 case of Loving v. Virginia, in which the Supreme Court laid the doctrinal foundations for Judge Write Allen’s decision. Mildred, whose maiden name was Mildred Jeter, and her husband Richard Loving, had been prosecuted by Virginia for going to the District of Columbia to marry and then returning home to Virginia, living in open defiance of that state’s law forbidding marriages between people of color and white people. The Supreme Court ruled in that case that Virginia’s law was an unconstitutional interference in the right of individuals to marry the partner of their choice, not only because the statute enacted race discrimination, but also because of the fundamental role of marriage in our society.

Mrs. Loving said, in marking the 40th anniversary of her Supreme Court victory, “The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. . . I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. . . I support the freedom to marry for all. That’s what Loving (the case), and loving, are all about.”

And, to close out her opinion, Judge Wright Allen quoted remarks by Abraham Lincoln, from a letter he wrote in May 1860 while contemplating his bid for the Republican presidential nomination in the upcoming national election. Reflecting the coming struggle over slavery, Lincoln wrote, “It can not have failed to strike you that these men ask for just the same thing – fairness, and fairness only. This, so far as in my power, they, and all others, shall have.” Echoing Lincoln, the judge concluded her opinion by stating, “The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.”

This lawsuit was initiated last summer by Timothy Bostic and Tony London, a gay couple who inquired about getting a marriage license from the Norfolk court clerk and were advised that Virginia law prohibited it. Although the ACLU and Lambda Legal had put out the word that they were planning a lawsuit in the wake of the DOMA decision, Bostic and London were not inclined to wait and filed their own lawsuit in the Eastern District of Virginia. The American Foundation for Equal Rights (AFER), which had litigated the California Proposition 8 case, quickly offered them the opportunity to be represented by Ted Olson and David Boies, the prominent appellate litigators who presented that case to the federal courts, and Bostic and London accepted the offer. The case was amended to add a second couple, Carol Schall and Mary Townley, who had married in California in 2008 but whose marriage was not recognized in Virginia. As a practical matter, this non-recognition had raised a barrier to Schall adopting their daughter, who was born in 1998 through donor insemination, since Virginia’s adoption law does not permit second-parent adoptions for same-sex couples. The Virginia marriage and recognition bans are embodied both in statutes and in a state constitutional amendment adopted in 2006.

The lawsuit originally named as defendants then-Governor Bob McDonnell and then-Attorney General Ken Cuccinelli, as well as George E. Schaefer III, the Norfolk Circuit Court Clerk whose office had denied the license to Bostic and London. As the case developed, McDonnell and Cuccinelli were dropped as defendants, Janet Rainey, the state’s Registrar of Vital Records was added, and the Prince William County Circuit Court Clerk, Michele McQuigg, was allowed to intervene as a defendant. Perhaps equally significant for the direction of the lawsuit, soon after the newly-elected Democratic governor and attorney general, Terry McAuliffe and Mark Herring, took office, they announced that the executive branch of the state government was no longer interested in defending Virginia’s marriage ban, and the state’s Solicitor General was dispatched by Herring to join the plaintiffs during the summary judgment hearing a few weeks ago to argue that the ban is unconstitutional. Thus, the only defenders of the ban at this stage of the litigation are two county clerks, who are represented by their own counsel, including lawyers from Alliance Defending Freedom, a curiously-named group that has intervened in several marriage equality cases to oppose the freedom of same-sex couples to marry. ADF claims to be vindicating religious freedom as its main goal, but evidently just the religious freedom of those who share ADF’s religious opposition to same-sex marriage.

In the first part of her opinion, the judge rejected defendants’ argument that the plaintiffs in this case lacked standing to pursue a federal court challenge, and also rejected their argument that the Supreme Court’s 1972 holding in Baker v. Nelson that same-sex marriage does not present a “substantial federal question” was binding on the court. In line with the other recent marriage equality rulings, Judge Wright Allen concluded that “doctrinal developments since 1971 compel the conclusion that Baker is no longer binding,” and observed that the 2nd Circuit Court of Appeals, based in New York, had “recognized this explicitly” when it ruled against the constitutionality of DOMA in U.S. v. Windsor. The judge also referred to District Judge Robert Shelby’s opinion in the Utah marriage case, Kitchen v. Herbert, holding that Baker “has little if any precedential effect today.”

Judge Wright Allen considered both due process and equal protection arguments against the ban, and concluded that it was unconstitutional on both theories.

Focusing first on due process, she concluded that the Supreme Court had established in Loving v. Virginia and subsequent cases that the right to marry is a fundamental right, and as such could not be abridged by the state without a narrowly-tailored law that was justified by a compelling state interest. “The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some ‘new’ creation,” she wrote. “Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens.” She continued, “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

Having found that a fundamental right was at stake, Judge Wright Allen asserted that the “strict scrutiny” standard of judicial review applied to this case, and rejected the defendants’ arguments that the marriage ban could be justified by tradition, federalism, or the “responsible procreation” and “optimal child rearing” theories. Her analysis is by now quite familiar, following the lines of the recent decisions from Ohio, Utah, Oklahoma and Kentucky. Responding to the federalism point, she quoted from Justice Scalia’s dissent in Windsor, where he wrote: “As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” The judge rejected the argument that on grounds of federalism the court should abstain from ruling on the merits in order to give the Virginia electorate and legislature a chance to reconsider their position, remarking that this “proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens.”

In addition to rejecting the argument that there was no logical connection between any state goal to channel procreation responsibly or provide an optimal setting for child rearing and forbidding same-sex couples from marrying, she also asserted that this “rationale misconstrues the dignity and values inherent in the fundamental right to marry as primarily a vehicle for ‘responsibly’ breeding ‘natural’ offspring,” which “ignores the profound non-procreative elements of marriage, including ‘expressions of emotional support and public commitment,’ ‘spiritual significance,’ and ‘expression of personal dedication.'” The quotations were from an opinion for the Supreme Court by Justice Sandra D. O’Connor, striking down a state’s ban on marriage for prison inmates.

Having found the Virginia marriage ban in violation of the Due Process Clause, Judge Allen Wright turned to the Equal Protection Clause. The standard of review for equal protection claims can vary depending upon whether the challenged discrimination involves a fundamental right or discriminates because of a so-called “suspect classification.” As she had already found a due process violation based on the conclusion that the right to marry is fundamental, the judge concluded that the marriage ban also violated the Equal Protection Clause by discriminating concerning a fundamental right. But she also addressed the “suspect classification” issue, finding that same-sex and different-sex couples are “similarly situated” for purposes of an equality analysis. “Deference to Virginia’s judgment on this question is unwarranted,” she wrote, “because there are reasonable grounds to suspect ‘prejudice against discrete and insular minorities which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities,'” quoting a venerable Supreme Court precedent from 1938 that is foundational in equal protection doctrine. She found plenty of evidence “manifest in Virginia in state-sanctioned activities” that showed animus against gay people, including, for example, Ken Cuccinelli’s action as attorney general directing colleges and universities to rescind their anti-discrimination policies on the ground that Virginia’s civil rights statutes provided no protection against discrimination to gay people.

However, she concluded that it was not necessary for her to determine an appropriate level of judicial review in this case. “Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose,” she wrote, “and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs’ compelling arguments that the Laws should be subjected to heightened scrutiny.”

“The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.” Having reached this conclusion, the judge stated that the plaintiffs are entitled to injunctive relief commanding the state to stop enforcing the marriage ban. However, acknowledging that the Supreme Court had stayed the Utah decision and thus signaled its view that district judges should not order states to allow same-sex marriage until any appeals to higher courts are exhausted, Judge Wright Allen “stayed execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.”

Presumably the two county clerks will quickly file their appeals with the 4th Circuit, which is based in Richmond, Virginia. The state, represented by Ms. Rainey, could also appeal, although in light of the governor and attorney general both stating their view that Virginia should allow and recognize same-sex marriages, that seems unlikely. In any event, unless the 4th Circuit handles the case with extraordinary speed, it is unlikely that it would be ruling before the 9th and 10th Circuits rule on the pending appeals from Nevada, Utah and Oklahoma. The 10th Circuit has already scheduled oral arguments on Utah and Oklahoma during April, and the 9th Circuit has granted a motion by Lambda Legal for an expedited hearing in the Nevada case, with the date to be set shortly. Final reply briefs are due in the Nevada case by February 25, and the court has granted a request by the state government to withdraw its brief, leaving the field in that case to an intervenor group that had supported the passage of the state’s anti-gay marriage amendment. Ted Olson and David Boies got involved in the Bostic case with the explicit goal of taking it to the Supreme Court, but as of now it seems more likely that the National Center for Lesbian Rights, which has become associated with the Utah case, or Lambda Legal, which represents plaintiffs in the Nevada case, may get there first. There is another Virginia marriage equality case, Harris v. Rainey, filed in the Western District by the ACLU and Lambda Legal, which is also pending. In that case, the trial judge certified the case as a class action, but arguments on summary judgment have yet to occur, so it is uncertain whether there might be a second Virginia ruling to present to the 4th Circuit before it decides any appeal in the Bostic case.

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.