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Art Leonard Observations

Victory Put on Hold, and More Holds Looming in Marriage Equality Struggle

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

The way to achieve marriage equality right away is to persuade a state legislature and governor or to secure a final order from the highest appellate court of a state holding that same-sex couples are entitled to marry. Last year we saw this scenario unfold in several states, including most spectacularly in Hawaii and Illinois and New Jersey and New Mexico.

The way to achieve marriage equality eventually, perhaps, is to win a ruling from a federal district court that a state’s ban on celebrating or recognizing same-sex marriages is unconstitutional. Since January 6, 2014, when the Supreme Court stayed the district court marriage equality decision in Utah, the marching orders for federal trial judges have been clear: Thou shalt stay thy ruling pending appeal. On February 12, U.S. District Judge John G. Heyburn II issued an Order requiring the state of Kentucky to recognize same-sex marriages contracted out of state. Kentucky’s attorney general took a few days deciding whether to file an appeal to the U.S. Court of Appeals for the 6th Circuit, and the court granted an interim stay through March 20 to give the attorney generalplenty of time to make up his mind and to allow state officials to take necessary steps preparatory to complying with the court’s Order. Shortly after the interim stay was granted, the attorney general announced that he would not appeal, and the governor announced that he would, subsequently hiring a law firm with money appropriated by the legislature. The governor’s attorney then moved for a stay pending a ruling on appeal by the 6th Circuit. On March 19, just before the interim stay would expire, Judge Heyburn granted the motion for stay pending appeal in Love v. Beshear, No. 3:13-CV-750-H, as the case is now titled.

In a short opinion explaining his action, Judge Heyburn first reviewed the four factors courts consider in deciding whether to stay injunctive relief while an appeal is pending, and concluded that they produce a “mixed” result. On the one hand, Judge Heyburn is clearly convinced that denying recognition of same-sex marriages is unconstitutional, but he concedes that the question has not yet been decided at the appellate level. After pointing out that “the applicant [for the stay] has not made a strong showing of a likelihood of success on the merits,” and that the district courts that have ruled so far have been unanimous, “the ultimate resolution of these issues is unknown.” Heyburn characterized as a “legitimate concern” the state’s argument that failing to stay could result in some harm to the state if an appellate reversal results in “potential granting and then taking away of same-sex marriage recognition to couples,” but he pointed out the well-established principle that any delay in protecting constitutional rights will cause irreparable harm. As to the public interest, “The Court has concerns about implementing an order which has dramatic effects and then having that order reversed, which is one possibility. Under such circumstances, rights once granted could be cast in doubt.”

Even though the court found the factors to be “mixed,” providing no clear answer whether a stay should be issued, ultimately the Supreme Court’s Utah stay was highly persuasive. In light of the fact that the 6th Circuit has not granted expedited argument in pending marriage equality cases, the judge noted, “there is no such guarantee of expedited briefing before the Sixth Circuit” and “it may be years before the appeals process is completed.” Furthermore, this case, involving recognition, is different from the Utah case, which involved the right to marry. “Nevertheless,” he wrote, “the Supreme Court has sent a strong message by its unusual intervention and order in that case. It cannot be easily ignored.” And this court is not going to ignore it. “It is best that these momentous changes occur upon full review,” concluded Heyburn, “rather than risk premature implementation or confusing changes. That does not serve anyone well.”

So, as every district court decision has been stayed except for the Ohio case (which is already pending on appeal in the 6th Circuit), federal district judges are uniformly interpreting the Supreme Court’s January 6 action on Utah to be a clear signal to federal judges to stay their decisions in marriage equality cases pending appeal, and this court was not willing to depart from that practice.

Building on this string of stays, Tennessee Governor Bill Haslam filed a motion on March 18 seeking a stay of District Judge Aleta Tauger’s order from March 14 in Tanco v. Haslam, holding that Tennessee must recognize the marriages of the three plaintiff same-sex couples. The big difference between the Tennessee case and the Kentucky case is that in Kentucky Judge Trauger limited her relief to the three couples who are plaintiffs in the case, whereas in the Utah and subsequent marriage equality cases in which stays have been granted, the cases were not so limited, seeking to vindicate marriage and recognition rights broadly on behalf of similarly-situated couples throughout those states. In a memo supporting the motion, Haslam argued that 6th Circuit precedents would support granting a stay so long as “there is at least a serious question going to the merits of Plaintiffs’ claims,” and further that the trial court had improperly placed a burden on the defendants to prove the constitutional validity of their marriage ban. As to irreparable injury, the applicant contended that no such injury would occur as a result of delay, contending in particular that plaintiffs Tanco and Jesty, expecting a child, could undertake various contractual arrangements that would protect Jesy’s parental status vis-√†-vis the child, but this part of the argument is plain wrong, since no contractual or other paper arrangement can fully substitute for being recognized as a legal parent immediately upon birth of the child.

The motion, filed by Attorney General Robert E. Cooper, Jr. on March 18, ends by pointing out that Judge Trauger had explicitly stated that she was not ruling on whether Tennessee’s ban on same-sex marriage was unconstitutional, but merely finding that there was a valid constitutional question presented that plaintiffs were likely to win. Cooper was upfront about the intimations in Judge Trauger’s opinion that she was likely to find the state’s marriage ban unconstitutional, but, wrote Cooper, the state had announced it would appeal, so “It is only right for the status quo to be maintained during that process.” This argument has the plausible air of relying on a neutral, non-discriminatory legal principle as justification for delaying the right of same-sex couples to have their marriages recognized in Tennessee, but that analysis ignores a big part of the context, in which people may be suffering real injuries because of the failure of the government to recognie their marriage.

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