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Unanimous 7th Circuit Panel Strikes Down Wisconsin and Indiana Same-Sex Marriage Bans

Posted on: September 4th, 2014 by Art Leonard No Comments

Less than two weeks after roughing up attorneys for the states of Wisconsin and Indiana in a heated oral argument, a three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit issued a unanimous decision in Baskin v. Bogan, 2014 WL 4359059  (September 4, 2014), striking down the bans on same-sex marriage in those states.  Writing for the panel, Circuit Judge Richard Posner, one of Ronald Reagan’s earliest judicial appointees in 1981, decisively rejected all the states’ arguments in support of their anti-marriage laws, stating that “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”

With stays pending appeal in effect in both states, the 7th Circuit ruling did not effect any immediate practical change.  Both states promptly signified that they would petition the Supreme Court for review.

Judge Posner’s forty-page opinion was telegraphed by his questioning during the oral argument, for the issues that he raised and pressed repeatedly dominate his written analysis.  His first questions to the attorney for Indiana concerned the welfare of children — the children being raised by same-sex couples in Indiana whom the state prohibits from marrying and whose out-of-state marriages are denied legal recognition.  And his opinion starts in much the same way: “Formally these cases are about discrimination against the small homosexual minority in the United States.  But at a deeper level, as we shall see, they are about the welfare of American children.  The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.  Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”

During the oral argument, all three judges on the panel (Posner being joined by Obama appointee David Hamilton and Clinton appointee Ann Claire Williams) were skeptical about treating this as a “fundamental right to marry” case, expressing concern about how such a right could be described in a way that would not open up arguments about a constitutional right to polygamy or incest.  Unlike the panel majorities in the 4th and 10th Circuits, who based their marriage equality rulings on the fundamental rights theory, the 7th Circuit panel preferred to take the equal protection route.  That yielded a double hit from this opinion: Not only did the court hold that the states had no rational basis for denying marriage to same-sex couples, but it also ruled, in line with a decision earlier this year by the San Francisco-based 9th Circuit, that claims of anti-gay discrimination by the government are subject to heightened scrutiny, placing the burden on the government to show that its discriminatory law significantly advances an important government policy.

Most importantly, however, Posner’s opinion for the panel is sheer fun to read because of his plain-speaking, cut-through-the-cant style of dealing with ridiculous arguments.  When he finds an argument ridiculous, he does not politely abstain from commenting, in the manner of some of his more restrained judicial colleagues.  He cuts to the chase and calls ’em as he sees ’em.  Herewith some choice examples:

“Our pair of cases is rich in detail but ultimately straight-forward to decide.  The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”

“Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”

“It is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.  Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it — except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson to reject them. . .  Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.  Subsequent decisions such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative.  At least we think they’re distinguishable.  But Justice Scalia, in a dissenting opinion in Lawrence, joined by Chief Justice Rehnquist and Justice Thomas, thought not.  He wrote that ‘principle and logic’ would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.”

Nothing like enlisting Scalia on your side in a gay rights decision. . .

After extensively criticizing Indiana’s “channeling-procreation” argument and pointing out its inconsistency with the state’s convoluted rules concerning marriages between elderly first cousins, Posner focused on the “irresponsible procreation” argument, and observed:  “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combinations of sticks and carrots) to marry, but that gay couples, unable as they are to produced children unwanted or wanted, are model parents — model citizens really — so have no need for marriage.  Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

He also points out that if Indiana and Wisconsin are trying to reduce out-of-wedlock births by denying marriage to same-sex couples, their strategy is not working, citing statistics showing the rate of children born in such circumstances went up in each state after they adopted explicit bans on same-sex marriage.  He also pointed out that gay couples are more likely to adopt children than straight couples, and many of those children will be the out-of-wedlock children surrendered for adoption by single mothers.  “If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason,” he wrote, “this should be true whether the child’s parents are natural or adoptive.  The state’s lawyers tell us that ‘the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.’ Why the qualifier ‘biological’?  The state recognizes that family is about raising children and not just about producing them.  It does not explain why the ‘point of marriage’s associated benefits and protections’ is inapplicable to a couple’s adopted as distinct from biological children.”

He suggested that letting same-sex couples raising adopted children marry would provide emotional comfort to their children.  “Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).  Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.  If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple.  Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.”

Judge Posner took apart the argument by Wisconsin’s lawyer that “tradition” justifies the marriage ban.  “Tradition per se has no positive or negative significance,” he wrote.  “There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery,’ bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween).  Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”  He went on to quote the same passage from Oliver Wendell Holmes that the late Justice Harry Blackmun cited in his dissent from the infamous 1986 Supreme Court sodomy case, Bowers v. Hardwick: “Holmes thought it ‘revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”  Posner helpfully added that the English King Henry IV died in 1413.  To show the age of the tradition underlying this marriage ban, he went on to quote Leviticus 18:22, and concluded on this point, “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.”

Responding to Wisconsin’s argument about “thousands of years of collective experience” showing that different-sex marriage is “optimal for the family, society, and civilization,” Posner pointed out that Wisconsin provided no evidence in support of this claim, and then he listed several countries that today allow polygamy, adding, in a little flourish, “parts of Utah.”  “But suppose the assertion is correct?” he asked.  “How does that bear on same-sex marriage?  Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is ‘optimal?’  Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality?  Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?”

As to the contention that allowing same-sex marriage will harm society, Posner pointed to estimates of the gay population ranging from 1.5% to 4%, and concluded: “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.”  He pointed out that the states had provided no evidence that “any heterosexuals have been harmed by same-sex marriage,” and observed that even though some people might be “distressed by the idea or reality of such marriage,” this could not count as a harm that would justify the ban.  Even though many people disapproved of or were offended by interracial marriage and sodomy, the Supreme Court struck down laws against both.

As to the argument by Indiana and Wisconsin that the popularly enacted marriage amendments should enjoy some immunity from constitutional attack, Posner responded: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Although the court found no rational basis for the marriage bans, and thus could have avoided ruling on whether sexual orientation discrimination merits heightened scrutiny, Posner took that issue on, rejecting the states’ arguments that gay people are a political powerful group that needs no help from the courts.  The marriage amendment passed in Wisconsin would surely argue otherwise.  Posner emphasized the history of anti-gay discrimination — which he characterized during oral argument as “savage”, the extensive scientific literature on the issue of immutability, and the lack of relevance of sexual orientation to a person’s ability to contribute to society, finding that all the factors for finding a “suspect classification” applied to sexual orientation.  While not strictly necessary to support the court’s ruling, this finding may be very useful in future cases in the 7th Circuit challenging discriminatory state policies.

With this opinion, three federal courts of appeals have ruled in favor of marriage equality, and it is widely predicted that the 9th Circuit will add to that number after hearing arguments on September 8.  Less certain is the outcome in the Cincinnati-based 6th Circuit, which heard arguments weeks before the 7th Circuit but has yet to issue its opinion.  (Posner is a notoriously fast writer of judicial opinions, and this one bears the hallmarks of haste, including one page where some lines of text seem to have been omitted from the opinion as first released by the court.)  Appeals are now pending in the 5th Circuit, where Texas has appealed a pro-marriage equality ruling and plaintiffs are about to appeal an absurdly reasoned federal anti-marriage ruling from Louisiana.  On the same day the 7th Circuit ruled, Florida Attorney General Pamela Bondi announced that she had filed a notice of appeal with the 11th Circuit from a recent federal court marriage equality ruling in that state.  There will be no marriage equality rulings from the 2nd or 3rd Circuits, as every state in both circuits already allows same-sex couples to marry, either by legislation or court order.  The Boston-based 1st Circuit might still be heard from; even though all the states in the circuit have marriage equality, its jurisdiction also covers Puerto Rico, where a lawsuit challenging the commonwealth’s marriage ban is pending.  The 8th Circuit, where cases are pending in several district courts, has yet to be heard from in the current round of litigation, although it rejected a challenge to Nebraska’s marriage amendment in 2006.   The 7th Circuit’s ruling brings closer the possibility that marriage equality might be achieved nationwide through circuit court opinions without Supreme Court intervention, if that court were to let petitions accumulate and denying them all once the boards have been swept clean.  But one dissenting circuit would virtually guarantee Supreme Court review.

Attorneys from Lambda Legal and the Indiana and National ACLU argued the case for plaintiffs before the 7th Circuit, while the states of Indiana and Wisconsin were represented by the Indiana Solicitor General and a Wisconsin Assistant Attorney General.  It seems likely that the Republican governors of both states will petition the Supreme Court for review, although Wisconsin’s governor has been less outspoken than Indiana’s in opposition to same-sex marriage.  Wouldn’t it be grand if both read Posner’s extremely persuasive opinion and followed the example of Pennsylvania’s Republican governor in dropping further appeals?

 

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?”