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7th Circuit Panel Roughs Up State Attorneys in Marriage Equality Arguments

Posted on: August 26th, 2014 by Art Leonard 1 Comment

A panel of three judges of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, gave a very rough time to attorneys from the states of Indiana and Wisconsin on August 26 during oral arguments about marriage equality appeals from those states.  Three district court rulings from Indiana and one from Wisconsin issued earlier in 2014 had found unconstitutional those states’ refusal to allow same-sex couples to marry or to recognize their marriages contracted in other jurisdictions, and the states had appealed.  Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson probably anticipated tough questioning from Democratic appointees Ann Claire Williams and David Hamilton, but one suspects they were not anticipating the kind of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by President Ronald Reagan back in the 1980s.

Judge Posner, a father of the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, but anyone who has been following the trend of marriage equality decisions over the past year might have predicted this result in light of Posner’s record of relentlessly pursuing facts and logic in his decisions.  Posner pressed both attorneys for some reason why neither state would allow or recognize same-sex marriages.  Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents, about 3,000 of whom are in Indiana, he pressed Fisher for a reason why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples, and Fisher could give him no real answer.

Wouldn’t it help those children if their parents could marry, asked Posner?   What’s better for the welfare of these children — that their parents be allowed to marry or prevented from marrying?  Posner’s insistent questions followed up on Supreme Court Justice Anthony Kennedy’s comment in his opinion for the Court in U.S. v. Windsor about the way denial of marriage to same-sex couples humiliates their children, who are being told by the state that their families are second class and not worthy of marriage.

Fisher insisted, as virtually the sole justification for Indiana’s marriage ban, on a state interest in making marriage available to different-sex couples so that their children would be tied to their biological parents in stable families.  But, having conceded that the state’s interest extended to the families in which children are raised, he could not satisfactorily answer questions from all three judges about how excluding same-sex couples from marriage advanced that interest.  If you let gay people adopt, asked Posner, why not let their children have the same benefits?

Fisher’s response – that same-sex couples can only get children intentionally and don’t need to be “nudged” into marrying – seem puny.  Posner also pointed out the large number of children in foster care who needed adoptive parents and asked whether letting same-sex couples marry would lead to more adoptions.  Fisher disclaimed knowledge about such a result, but Posner, the law-and-economics expert, suggested that it is less expensive for married couples to adopt than for unmarried couples to adopt precisely because of all the benefits that accompany marriage.

Judge Hamilton, seizing upon an argument in Indiana’s brief claiming that the state’s marriage statute did not discriminate based on sexual orientation, seemed to throw Fisher into a panic by suggesting that the state was conceding that its law classified based on sex and was thus subject to heightened scrutiny under the Equal Protection Clause.  Virtually all judges seem to agree that if heightened scrutiny is used, bans on same-sex marriage are doomed to fail.

Samuelson did not fare much better arguing for Wisconsin.  He contended that the due process clause was a source of negative rights but not positive rights, and asked the court to consider whether Wisconsin is required to have a marriage law at all.  He suggested that if Wisconsin repealed its marriage law and substituted domestic partnerships, nobody would have cause for complaint because, in his view, the Due Process Clause does not contain an affirmative right to marry.  He argued that all the prior Supreme Court marriage cases were concerned with negative rights, not affirmative rights, in that the Court was striking down instances in which the state had interfered with existing marriage rights.  The judges did not seem impressed by this argument and gave it short shrift.

During Samuelson’s argument on behalf of Wisconsin, Judge Posner really cut to the chase.  As Samuelson blundered on about tradition and “Burkean values” Posner finally asked, “Isn’t this based on hate?” and referred to the history of “savage discrimination” against gay people, including discrimination by government.  Samuelson countered by pointing out that Wisconsin was the first state to pass a statute banning discrimination because of sexual orientation in housing, employment and public accommodations.  Posner responded, “Why draw the line there?”  Why not cease discriminating in marriage?  To Samuelson’s response that this was a matter of “legislative policy,” Posner said, “Give me a rational basis for that legislative policy,” but Samuelson could not.

What did distinguish the 7th Circuit argument from the approaches of the 10th and 4th Circuit courts of appeals, which ruled in marriage equality cases over the summer, was that the judges seemed more inclined from their questioning and comments to treat this as an Equal Protection case rather than a case about a fundamental right to marry.  They pressed the attorneys from plaintiffs — Lambda Legal’s Camilla Taylor, the Indiana ACLU’s Kenneth Falk, and the National ACLU LGBT Rights Project’s James Esseks – for some limiting principle by which to described a constitutional right to marry.  Would that endanger laws forbidding incest, first-cousin marriages, polygamy?  Esseks came back with the strongest answer, pointing to Justice Kennedy’s description of the liberty encompassed by the Due Process Clause in his opinion for the Court in Lawrence v. Texas, the 2003 decision striking down that state’s homosexual sodomy ban.  Kennedy listed the right to select a marital partner as one of the fundamental rights within the scope of constitutionally-protected liberty, and commented, to the outspoken chagrin of Justice Scalia, that homosexuals had the same liberty interest.  Scalia’s dissent asserted that once the Court had eliminated tradition and moral disapproval as grounds for adverse treatment of gay people, there seemed no basis to deny gay people the right to marry.  His comment has been noted by many of the federal trial judges who have struck down marriage bans in recent months.

Most of the questioning for the plaintiffs’ attorneys focused on how to describe the liberty interest and where to find limiting principles for it.  Hamilton particularly suggested that equal protection provided the stronger argument for plaintiffs, since the discriminatory purpose and effect of the marriage bans was clear.  Esseks made a strong pitch for the court to use heightened scrutiny if it decided the case using an equal protection theory, but the judges seemed unreceptive.  Judge Williams suggested that the concept of “heightened scrutiny” was not helpful.  To her, the issue was whether the challenged laws caused harm, and whether there was some balancing benefit to the state that justified the harm.  Her questioning suggested that she understood the harms very well, but that attorneys for the states were unable to name any concrete benefits associated with these bans.

During Fisher’s brief rebuttal argument, Judge Posner came back to his issue of children of adoptive parents, pushing Fisher again to give a reason for denying them benefits, and asking how the marriage ban could possibly advance the state’s interests.  Do you really believe that you get less extramarital sex by pushing heterosexuals to marry, he asked.  You let all these sterile people marry, he commented.  Are they supposed to be role models for channeling procreation?  He characterized this argument as ridiculous.

Posner asked Fisher whether he read the amicus brief filed by the Family Equality Council, which was devoted to relating the stories of harms incurred by children whose parents were not allowed to marry.  Fisher claimed to have read it but not remembered it.  Posner referred to the “harrowing information” about problems created for children raised by couples forbidden to marry, the misfortunes they suffered, and asked incredulously whether Fisher was not moved by that.  He also asked whether Fisher had any empirical basis for anything he had said, in a void dripping with sarcasm.

It was hard to imagine that either of the appellant states are going to win even one vote from this panel, if the judges vote along the lines suggested by their questions and comments during the oral argument.


Federal Judge Rejects Delay in Wisconsin Marriage Equality Case

Posted on: March 25th, 2014 by Art Leonard No Comments

U.S. District Judge Barbara B. Crabb has rejected an attempt by Wisconsin officials to delay the marriage equality case pending before her. Ruling on March 24, Judge Crabb confirmed a schedule established by Magistrate Judge Stephen Crocker to complete briefing in the case by the end of May 2014, with arguments on a motion for summary judgment expected soon after. “Abstaining or staying the case would serve no purpose but to delay the case,” wrote Crabb in Wolf v. Walker, 2014 U.S. Dist. LEXIS 38554 (W.D. Wis., March 24, 2014).

Eight same-sex couples filed suit in the Western District of Wisconsin challenging the state’s ban on same sex marriage, which is contained in a constitutional amendment and statutes. They had filed a motion for a preliminary injunction, but Judge Crabb suggested that if they would withdraw the motion, she would set an expedited scheduled to get the case through discovery to a summary judgment hearing quickly. They withdrew their motion, the magistrate set a short briefing schedule, and then the defendants — Governor Scott Walker, Attorney General J.B. Van Hollen, Secretary of Revenue Richard G. Chandler, State Registrar Oskar Anderson, and two district attorneys — filed a new “motion to abstain and stay,” arguing that Crabb should put the case “on hold” until a case now pending before the Wisconsin Supreme Court concerning interpretation of the state’s marriage amendment is decided, and to “abstain” from ruling in this case because the relief requested by the plaintiffs — injunctions against three county clerks – “would disrupt the state’s important interest in the uniform and coherent administration of state marriage laws.” The three county clerks are also defendants in the case, but they actually side with the plaintiffs on the merits.

After reviewing the grounds upon which a federal court might hesitate to decide a case concerning the validity of state laws, Judge Crabb concluded that this is not such a case. Sometimes it is prudent for a federal court to hold its fire because the meaning of a state law is ambiguous and litigation pending in the state court system might clarify the meaning in a way that would resolve any federal constitutional review. The defendants argued that Appling v. Walker, the pending state supreme court case concerning whether the marriage amendment prevents the state from providing domestic partner benefits to state employees, might “materially alter” the federal constitutional analysis, but Judge Crabb rejected that argument. “The state defendants do not suggest that there is any uncertainty regarding whether the Wisconsin Constitution prohibits same-sex couples such as plaintiffs from marrying in Wisconsin,” she wrote. “That is obvious from the language of the amendment. Further, defendants acknowledge that Appling v. Walker will not ‘obviate the need for a federal constitutional ruling’ in this case. As made clear by the Wisconsin Court of Appeals, Appling ‘is not about whether the Wisconsin or United States Constitutions require, on equal protection or other grounds, that same-sex couples have the right to a legally recognized relationship that is identical or substantially similar to marriage.” Rather, Appling is concerned with whether the simple extension of partner benefits to state employees creates such a “legally recognized relationship” and thus is barred by the Wisconsin Marriage Amendment. The answer to that question is basically irrelevant to the question pending before Judge Crabb.

“As plaintiffs point out,” she wrote, “if the Wisconsin Supreme Court upholds the domestic partnership law, nothing changes. If the court invalidates the law, the only effect is to make the deprivation imposed on plaintiffs [by the Marriage Amendment] more severe. Thus, it is difficult to envision any scenario in which the state defendants could rely on the supreme court’s decision to strengthen their position.” Thus they failed to show that “exceptional circumstances” would justify delaying the case in order to wait for the Wisconsin Supreme Court’s decision.

On the abstention point, the defendants argued that because the plaintiffs had not certified a class action, the court’s ruling in their favor would be binding only on the three clerks named in the complaint. As none of the other named defendants are responsible for issuing marriage licenses, say the defendants, the result would be a lapse in the “uniform and coherent administration” of Wisconsin’s marriage laws because same-sex couples would be able to marry in some counties but not others, since none of the other state defendants had any authority under state law to “direct the actions of Wisconsin’s county clerks with regard to the issuance of marriage licenses.” They urged the court to “take steps to address the uniformity concern they have raised.”

The three county clerks who are defendants in the case apparently sympathize with the plaintiffs on this point, as they submitted to the court that it was likely that if the court ruled in favor the plaintiffs, county clerks around the state would comply with any orders that were issued in the case, since the state registrar, who is a defendant, “establishes the form for marriage licenses that clerks must use.” Indeed, Crabb found that the defendants had, in effect, conceded that abstention was not appropriate on this constitutional question, and she rejected the idea that it was necessary to join all the county clerks in Wisconsin as defendants to resolve this “problem.” She pointed out that since the plaintiff couples in the case were not seeking marriage licenses from any of the other clerks, they would lack standing to sue the other clerks in federal court. “In any event,” Crabb wrote, “the state defendants do not suggest that a judgment in plaintiffs’ favor would subject any existing party to inconsistent obligations.”

She criticized the defendants for “seeking to place an extraordinary burden on plaintiffs without any authority for doing so,” essentially asking the court to require them to “forfeit their case” unless they can round up same-sex couples from every county in the state to join as plaintiffs or “replead their case as a class action.” But, she concluded, plaintiffs have a right to bring a lawsuit to vindicate their own constitutional rights, suing the officials who have refused to issue them marriage licenses. “Thus, even if I assume that state defendants are correct that the judgment in this case would not bind nonparty county clerks,” she wrote, “I see no legal grounds for granting the state defendants’ request.”

The plaintiffs are represented by lawyers from the ACLU’s LGBT Rights Project and the ACLU of Wisconsin, with cooperating attorneys from Mayer Brown LLP’s Chicago office. Judge Crabb is a Senior District Judge who was appointed by President Jimmy Carter in 1979 and served as Chief Judge of the district from 1980 to 1996. She took senior status in 2010. From her rulings in the case so far, it sounds like she is thoroughly enjoying presiding over this litigation, and there seems little doubt how she is likely to rule on the summary judgment motion, which is why the state defendants are doing everything they can to try to delay things as long as possible. But Judge Crabb is having none of that!

New Developments in Marriage Equality Cases in Wisconsin and Pennsylvania

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

1. Palladino v. Corbett, 2014 U.S. Dist. LEXIS 27154 (E.D. Pa., March 4, 2014) – This is the marriage recognition case pending in U.S. District Court in Philadelphia. A right-wing Christian group calling itself “Philadelphia Metro Task Force” petitioned to intervene as co-defendants, in order to make arguments about morality and family values in opposition to the plaintiffs. This is a case where the state’s Attorney General has refused to defend the state’s marriage ban and the governor has hired outside counsel. District Judge Mary McLaughlin DENIED the petition for intervention. The court said that they did not have the kind of interest necessary for federal standing, and even if they did, the court was not convinced that the existing defendants would not adequately represent their interests. The main basis for the intervention motion was that the A.G. would not adequately defend the statute, but the court said that the question now is whether the governor will adequately defend the statute. Also, Judge McLaughlin preemptively denied this group the right to file an amicus brief, saying that “there are no legal arguments made by the movants that would assist current counsel.” Although she doesn’t come right out and say it, I think McLaughlin is signaling that religious or moralistic arguments are irrelevant to the legal question of marriage recognition, so she sees no purpose in allowing an extra party into the case to make those arguments.

2. Wolf v. Walker, 2014 U.S. Dist. LEXIS 27225 (W.D. Wis., March 4, 2014) – This is the right to marry and marriage recognition case pending in U.S. District Court, Western District of Wisconsin, before Judge Barbara Crabb. The plaintiffs filed a motion for a preliminary injunction that would order the state to allow and recognize same-sex marriages immediately, arguing that they are likely to prevail on the merits and that any delay in recognizing their marriage rights imposed an irreparable injury. Judge Crabb observed that since the Supreme Court stayed the Utah marriage decision, every subsequent court ruling in a marriage equality case has stayed its decision. In light of that, she doesn’t see the purpose of issuing a preliminary injunction that would have to be stayed. So she offered the plaintiffs a deal: if they will withdraw their motion, she will promise expedited treatment for a motion for summary judgment or trial, so that the losing side can get its case up to the court of appeals (which would be the 7th Circuit) as quickly as possible. In other words, if they want to be in the running for their case being the one that goes to the S.Ct., they should accept this deal. She also said if they are not willing to withdraw, they should file a memorandum with the court explaining whether, in light of the Utah stay, it would be appropriate for the court to enforce a preliminary injunction before the case could be heard by the 7th Circuit. This strikes me as a totally pragmatic move by a judge who is inclined to rule on the merits for the plaintiffs if they file a summary judgment motion, so she is saying “why waste time on a preliminary injunction that won’t be enforced until the case is over at the highest appellate level?”