State authorities in Wyoming announced that Attorney General Peter Michael will file a notice with the U.S. District Court on Tuesday, October 21, certifying that the state will not appeal U.S. District Judge Scott W. Skavdahl’s Order, filed on Friday, October 17, confirming that under 10th Circuit precedents the state must allow same-sex couples to marry. The judge had stayed his order until October 23 at 5 pm unless the state certified earlier that it would not be appealing. “After reviewing the law and the judge’s decision that binding precedent requires recognition of same-sex marriage, I have concluded that further legal process will result in delay but not a different result,” said Michael in a statement released by his office.
When the ruling goes into effect, Wyoming will be the 32nd marriage equality state.
Skavdahl’s ruling in Guzzo v. Mead, 2014 U.S. Dist. LEXIS 148481, 2014 WL 5317797 (D. Wyoming, Oct. 17, 2014), came one day after the lead defendant, Governor Matthew Mead, stated during an election debate that he would not appeal a ruling by the court, in light of the 10th Circuit precedents. The 10th Circuit ruled in Kitchen v. Herbert, 755 F.3d 1193 (2014) and Bishop v. Smith, 760 F.3d 1070 (2014), that the Utah and Oklahoma constitutional and statutory bans on same-sex marriage violate the 14th Amendment by depriving same-sex couples of the fundamental right to marry in the absence of sufficient justification under the test of strict scrutiny. The U.S. Supreme Court denied petitions to review these two rulings on October 6, and subsequently rejected applications by two states in the 9th Circuit to stay marriage equality rulings pending further appeal.
The Supreme Court’s actions sent a clear message to lower federal courts and to state officials fighting marriage equality lawsuits: the Supreme Court is not interested at present in hearing appeals from pro-marriage equality rulings or in delaying them from going into effect. Thus, attempts to delay or appeal are “futile,” as Arizona’s attorney general, Tom Horne, said in explanation of his decision not to appeal last week’s ruling in that state by U.S. District Judge John Sedwick.
Wyoming is one of a handful of western states that had not adopted a constitutional amendment banning same-sex marriage, so a lawsuit had previously been filed in state court, Courage v. State of Wyoming (filed in Laramie County District Court on March 5, 2014), claiming that a statutory ban violated the state constitution. However, in the recent acceleration of federal marriage equality litigation spurred by the 10th Circuit’s rulings during the summer and then the Supreme Court’s surprise announcement on October 6 that it would not review the pro-marriage equality rulings by the 4th, 7th and 10th Circuit Courts of Appeals, a federal suit was filed in Wyoming to push things forward more quickly as the state action was not really progressing anywhere. National Center for Lesbian Rights joined with local attorneys Tracy Zubrod, the law firm of Arnold & Porter LLP, and the law firm of Rathod Mohamedbahi LLC, to move the Wyoming case forward quickly to a summary judgment ruling. The suit was filed on behalf of four same-sex couples and Equality Wisconsin, a gay rights political organization.
Judge Skavdahl’s opinion did not display the enthusiasm and passion of earlier district court opinions issued over the past year. He clearly projected that he was issuing a ruling that he had to issue rather than a ruling that he wanted to issue. “This Court is bound to apply and follow Tenth Circuit precedent unless and until it is overruled by the Tenth Circuit en banc or superseded by a contrary United States Supreme Court decision,” he explained. “The Tenth Circuit’s decisions in Bishop and Kitchen are binding upon this Court and determinative.” The judge devoted a page of his opinion to setting out his understanding of constitutional history and the separation of powers, as well as extolling the doctrine of “judicial restraint” in the face of politically-charged legal issues. “The preferred forum for addressing the issues presented by Plaintiffs in this case is the arena of public debate and legislative action,” he wrote with seeming regret. “However, that ship has sailed. It is not the desire or preference of this Court to, with the stroke of a pen, erase a State’s legislative enactments. Nonetheless, the binding precedent of Kitchen and Bishop mandate this result, and this Court will adhere to its Constitutional duties and abide by the rule of law.”
Clearly, were he not bound by 10th Circuit precedent, Judge Skavdahl would have preferred to rule that this case involves a political question and that the court would defer to the legislative choices of Wyoming. In this, he was siding with U.S. District Judge Martin Feldman of Louisiana, the sole federal district judge over the past year to rule against marriage equality. But Feldman was ruling in a state in the 5th Circuit, where there is no court of appeals precedent. An appeal from Feldman’s ruling will be argued in the 5th Circuit in November, together with the state’s appeal of a pro-marriage equality ruling from Texas.
Although the pending state court action is independent from this federal court ruling, the state is likely to be successful in getting it dismissed on grounds of mootness after the federal ruling takes effect on October 21.
Judge Skavdahl was appointed to the federal bench by President Barack Obama in 2011. In an interview with Jeffrey Toobin published in The New Yorker on October 17, President Obama said that the best Supreme Court action during his administration was the Court’s October 6 decision to deny review of the circuit court marriage equality rulings. “Ultimately,” he told Toobin, “I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states.”