U.S. District Judge Aleta A. Trauger signed an order in Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463, on March 14 directing the state of Tennessee to recognize the same-sex marriages of three couples while their lawsuit is being considered by the court. Granting a motion for preliminary relief filed by the couples’ attorneys, Abby Rubenfeld of Nashville and the National Center for Lesbian Rights, Judge Trauger concluded that it was likely that the plaintiffs will ultimately win their case, and that all factors courts analyze in determining whether to grant relief before a final decision on the merits weighed in their favor. Lead defendant Governor Bill Haslam expressed disappointment with the ruling. On Tuesday, March 18, and announced that a motion had been filed with Judge Trauger seeking a stay of her order pending appeal to the 6th Circuit, and asserting, incredibly, that delaying recognition of these marriages would cause no harm to the plaintiffs, according to an Associate Press report. This makes it sound like the Governor didn’t read Judge Trauger’s opinion (which seems likely), since she specifically found that delaying recognition would harm the plaintiffs, thus balancing the equities in their favor.
With her order, Judge Trauger became the eighth consecutive federal district judge to issue a ruling in favor of plaintiffs in a marriage equality case. Some, as in this case, narrowly focused on whether a state is obligated to recognize a same-sex marriage that was celebrated in another state. Others dealt more broadly with the question whether the state is obligated to allow same-sex couples to marry. In either case, the legal analysis is substantially the same, and Judge Trauger found both kinds of rulings to be persuasive.
This case was filed on October 21, originally on behalf of four same-sex couples, but the parties stipulated to drop one of the couples from the case, for reasons not explained in Judge Trauger’s opinion. The defendants, all sued in their official capacity, are Governor Bill Haslam, Commissioner Larry Martin of the Department of Finance and Administration, and Attorney General Robert Cooper.
The lead couple, Doctors Valeria Tanco and Sophy Jesty, met at Cornell University in Ithaca, New York, while studying veterinary medicine, and were married in New York before they moved to Tennessee, where the University of Tennessee’s College of Veterinary Medicine offered positions to both of them. Dr. Tanco became pregnant last summer, presenting the court with an important deadline to decide the motion for preliminary injunction, since recognition of the Tanco-Jesty marriage is important in terms of parental rights and recording parentage on the birth certificate, and she is due to give birth next week. Sergeant Ijpe DeKoe, an Army Reserve officer, is stationed in Memphis, where he lives with his husband, Thomas Kostura. They married in New York prior to Sgt. DeKoe’s deployment to Afghanistan in 2011, while DeKoe was stationed at Fort Dix in New Jersey. Johno Espejo and Matthew Mansell, adoptive fathers of two children, met and married in California. Mansell works for a law firm that moved the department in which he was employed to their Nashville office, and the Espejo-Mansell family relocated to Tennessee so Mansell could continue working for the firm. Espejo, who has been the stay-at-home father for their two sons, found part-time employment in Nashville. These couples are typical of the mobility of 21st century America, having moved to Tennessee because their employment prospects took them there. They share in common the concern that Tennessee’s non-recognition of their marriages will harm or inconvenience them in various ways, in addition to signaling disrespect for their relationships.
Judge Trauger explained that courts analyze four factors in deciding whether to grant preliminary relief: whether plaintiffs are likely to succeed on the merits, whether they are likely to suffer irreparable harm in the absence of preliminary relief, whether the balance of the equities tip in the plaintiffs’ favor, and whether issuing an injunction would be in the public interest. The most significant threshold question, of course, is whether plaintiffs are likely to win their case on the merits.
On this point, Judge Trauger was convinced by the unbroken streak of marriage equality rulings that federal judges have issued since last June’s Supreme Court decision in U.S. v. Windsor, striking down Section 3 of the Defense of Marriage Act, a statute that had forbidden the federal government from recognizing same-sex marriages. “These courts have uniformly rejected a narrow reading of Windsor, such as that advanced by the defendants here,” she wrote, “and have found that Windsor protects the rights of same-sex couples in various contexts, notwithstanding earlier Supreme Court and circuit court precedent that arguably suggested otherwise. These cases include decisions both inside and outside of this circuit, finding that similar state anti-recognition laws are or likely are unconstitutional, decisions granting a preliminary injunction under similar circumstances, and decisions finding that same-sex marriage bans are unconstitutional in the first place. In these thorough and well-reasoned cases, courts have found that same-sex marriage bans and/or non-recognition laws are unconstitutional because they violate the Equal Protection Clause and/or the Due Process Clause, even under ‘rational basis’ review, which is the least demanding form of constitutional review.”
The judge characterized the recent developments as a “rising tide of persuasive post-Windsor federal caselaw,” and said that “it is no leap to conclude that the plaintiffs here are likely to succeed in their challenge to Tennessee’s Anti-Recognition Laws.” She pointed out that all the arguments defendants raised in opposition had been “consistently rejected” by other courts, and she found particularly persuasive the ruling by Judge John G. Heyburn against the Kentucky non-recognition law. “The anti-recognition laws at issue here and in other cases are substantially similar and are subject to the same constitutional framework,” she wrote, explaining why she was not persuaded that Tennessee’s laws “will suffer a different fate” from the laws previously struck down in Kentucky, Ohio and Texas.
Federal courts recognize the deprivation of constitutional rights as an “irreparable harm,” so that factor was quickly disposed of. Since the state has no legitimate interest in enforcing an unconstitutional law, the equities clearly favor the plaintiffs, and, similarly, it is in the public interest to grant the injunction. Tennessee’s lawyers argued that granting the injunction would “override by judicial fiat the results of Tennessee’s valid democratic process,” pointing out that the anti-same-sex marriage constitutional amendment had won 80% of the vote when it was enacted in 2006, but that didn’t faze Judge Trauger. “Although the defendants are correct that issuing an injunction will temporarily stay the enforcement of democratically enacted laws,” she wrote, “that is essentially the case with any federal decision that overturns or stays enforcement of a state law that violates the federal Constitution,” and she pointed out that the 6th Circuit Court of Appeals, with appellate jurisdiction over this case, had stated in a past ruling that “it is always in the public interest to prevent a violation of a party’s constitutional rights.”
The judge took pains to emphasize the narrowness of her ruling, which merely temporarily enjoins enforcement of the anti-recognition law for the three couples who are plaintiffs in this case. “The court is not directly holding that Tennessee’s Anti-Recognition Law are necessarily unconstitutional or that Tennessee’s ban on the consummation of same-sex marriages within Tennessee is unconstitutional,” she wrote. When evaluating the four factors, she pointed out that granting preliminary relief in favor of three couples was no great imposition on the state, distinguishing this case from some others in which plaintiffs are suing on behalf of all those similarly situated and seeking state-wide relief. Of course, there is nothing to stop the plaintiffs in this case from filing a further motion to certify a plaintiff class of all those similarly situated, but that would be an issue for another day.
Judge Trauger was appointed to the federal bench by President Bill Clinton. Abby Rubenfeld, lead attorney for the plaintiffs, was the first legal director for Lambda Legal during the 1980s, and is Tennessee’s leading LGBT rights attorney. Other Tennessee lawyers representing the plaintiffs include the law firm of Sherrard & Roe, Maureen Holland, and Regina Lambert.
The judge’s penultimate paragraph intimated that she did not expect to make a ruling on the merits in this case before the 6th Circuit Court of Appeals, and perhaps even the Supreme Court, has ruled in one of the other pending cases. On March 31, Kentucky Governor Steve Beshear signed a contract with the Kentucky law firm of VanAntwerp, Monge, Jones, Edwards & McCann to represent him in appealing the Kentucky marriage recognition ruling to the 6th Circuit, after the state’s attorney general had declined to defend the non-recognition law on appeal. The state of Ohio is already appealing a marriage recognition ruling to the 6th Circuit. Appeals are even further along in the 4th and 10th Circuits, which have scheduled arguments in the Virginia, Utah and Oklahoma cases for this spring. The 9th Circuit had scheduled oral argument in the Nevada recognition case for April 9, but then announced that the hearing would be delayed to give the panel more time to review the numerous briefs that have been filed in the case. With all these appeals pending and arguments beginning soon, it is highly likely that the Supreme Court will be entertaining petitions to take up the issue of same-sex marriage during its 2014-15 Term.Tags: Abby Rubenfeld, Judge Aleta Trauger, National Center for Lesbian Rights, Tanco v. Haslam, Tennessee recognition of same-sex marriages, Tennessee same-sex marriage