This is a post I have wanted to write for almost a week. The problem is that every day has brought some new and exciting marriage equality drama, which completely changed my intended reflection. My hope was that today, Sunday, would be a day off. But then about two hours ago, a federal judge in Alaska struck down that state’s ban on same-sex marriage. So I apologize if by the time this post is uploaded, it is already hopelessly out of date.
Marriage equality has moved very quickly since the Windsor decision. The past week may have been the quickest it has moved. A quick trip to Wikipedia is helpful. Here is the status of same-sex marriage in the United States a week ago.
Here it is now.
(Here is a description for colors. One thing to note though is that in the previous map, Nevada, Colorado, and Wisconsin allowed only civil unions or registered partnerships to same-sex couples. As of this week that is no longer the case for any US state.)
This is one week.
Currently, every state with a ban on same-sex marriage is either defending the ban in federal court or has given up and started allowing gay and lesbian couples to wed. With the exception of one poorly reasoned case out of Louisiana, all of those cases decided in federal courts have been wins for marriage equality. To date, five Circuit Courts of Appeals, the 4th, 6th, 7th, 9th, and 10th, have heard marriage equality arguments. Prior to last week, three of those Courts–the 4th, 7th, and 10th–issued decisions. Those decisions struck down bans in five states (Utah, Oklahoma, Indiana, Wisconsin, and Virginia). All were appealed to the Supreme Court.
On October 6, 2014, the Supreme Court denied certiorari (i.e., declined to review) to all of those cases. There was no explanation, nor was their any public dissent. No one outside of the Justices’ chambers knows the reasons review was denied, but the one guarantee is that fewer than four Justices wanted to hear those cases. (It takes votes from four Justices to grant certiorari).
The Supreme Court’s action was, to say the least, unexpected. Matters of tremendous constitutional import in which state constitutional bans are struck down by the handful are the type that one generally expects the Supreme Court to hear. (Although no equivalent issue actually comes to mind.) Furthermore, the Court was under no immediate deadline as to whether to grant or deny certiorari. Therefore, it is all the more surprising that the denials in all the cases–there were seven in all–were handed down the first day of the 2014-15 term. The implications were hugely significant in both a tangible and symbolic way. Tangibly, by denying reviewing, the Justices left in place the decisions of the 4th, 7th, and 10th Circuits. All five states’ bans are effectively null, and marriage licenses (or recognition of a marriage performed in another state) must be extended to same-sex couples. The Circuits Courts’ decisions had been on hold pending Supreme Court review, but now they were full force. Almost immediately (literally a matter of hours in some cases), all five states began issuing marriage licenses to same-sex couples.
The story however, does not end there. In the 4th and 10th Circuits, there are other states with similar bans on same-sex marriages. The Supreme Court’s denial of review spelled the end to other state bans. This is because–in the absence of Supreme Court guidance–in matters of federal law, states are governed by the law of their assigned Circuit Court of Appeals. The 4th Circuit Court of Appeals struck down Virginia’s ban on same-sex marriage as unconstitutional, and that is the law for the entire 4th Circuit, which includes North Carolina, South Carolina, and West Virginia. Because the bans of Utah and Oklahoma were declared unconstitutional by the 10th Circuit, the same applies to Kansas, Wyoming, and Colorado.*
Colorado immediately gave up the fight, and West Virginia did too a few days later. North Carolina’s executive branch effectively gave up as well, although some legislators are still fighting it. On Friday October 10th, a federal district court judge denied them relief and counties in North Carolina have begun issuing marriage licenses to same-sex couples. Despite resistance in South Carolina, Wyoming, and Kansas, it only a matter of time, and marriage equality will come to those states sooner rather than later.
Left alone that would be a dramatic enough situation, but the day after the Supreme Court denied certiorari, the 9th Circuit Court of Appeals–a court incapable of acting without drama–issued its own marriage equality opinion striking down same-sex marriage bans in Idaho and Nevada. The 9th Circuit has a well-earned reputation as the most liberal circuit in the country even as the Supreme Court becomes ever more conservative. Certain Justices even appear to believe that being overturned on appeal by the Supreme Court is a badge of honor. One of those judges, Stephen Reinhardt, wrote the opinion in the Idaho and Nevada cases.
Because the 9th Circuit law is very progressive on LGBT issues, Nevada’s state government declined to defend the ban on appeal to the Ninth Circuit.** Idaho’s governor, Butch Otter, was quite adamant about defending the law, and asked the Supreme Court to stay the 9th Circuit’s opinion until it could review.
Here is where things gets very complicated. Every Supreme Court Justice supervises one or more of the 13 federal Circuit Courts of Appeals. This meant much more back in the early circuit riding days before the federal Courts of Appeals were created. The Justice in his or her supervisory role as Circuit Justice may “stay” (put on hold) decisions of the Circuit Court. Sometimes the Justice acts alone and sometimes he or she asks the full Court for a vote. Anthony Kennedy, the author of the Windsor decision, is the Circuit Justice for the 9th. Therefore, Idaho appealed to Justice Kennedy. Justice Kennedy agreed to stay the decisions in both Idaho and Nevada, confusing everybody because Nevada did not actually ask for a stay (or want one), and Idaho could not–and did not–ask on Nevada’s behalf. Kennedy lifted the stay on Nevada within a few hours, but a citizen group that had defended Nevada’s ban on appeal requested the stay be reinstated. The problem is that the citizen group has no standing to appeal to the Supreme Court because of the Prop 8 decision from 2013. Very shortly afterwards, the citizen group gave up, and now Las Vegas Elvis impersonators may officiate at same-sex weddings as well.
The mistakenly granted stay was a clerical embarrassment, but easily forgotten as these things happen. What was truly shocking was that Justice Kennedy, after referring the matter to the whole Court, eventually lifted the stay in Idaho as well. The strong implication of this is that the Supreme Court would deny review Idaho’s case as well. Governor Otter gave up, and no doubt same-sex couples in Idaho will be able to marry as soon as tomorrow. Keep in mind, it was the Supreme Court that began issuing the stays (in the Utah case after both the District Court and the 10th Circuit would not). The rest of the federal courts simply followed what they believed the Supreme Court wanted.
The Ninth Circuit, is the largest Circuit Court in the country and encompasses the most states (and Guam and the Northern Mariana Islands). In addition to Idaho, Nevada, and the states that already had marriage equality–California, Washington, Oregon, and Hawaii–the Ninth Circuit also presides over Alaska, Montana, and Arizona, states which all have bans. As I mentioned above, Alaska’s ban was struck down as I was writing this post. The bans in Montana and Arizona may have fallen by the time you have finished reading this.
At this point, 30 states in this country now have marriage equality, and presumably another five will join those ranks when the errant children in the 4th, 9th, and 10th Circuits are brought into line. Thus, all eyes turn to the only Circuit Court that has heard a marriage equality case, but still has a decision outstanding–the 6th Circuit. Reports from oral argument suggest that two of three judges on the panel seemed likely to uphold the marriage bans. I have a theory why this is so.
Let me say at the outset, I have no connection whatsoever with the 6th Circuit, or with any of the Circuit Courts of Appeals. Therefore the speculation is entirely my own. I believe that 6th Circuit (which, if I am not mistaken, held oral argument before both the 9th and the 7th Circuits) had a decision ready to uphold the bans. However, the judges did not want to release the decision once certiorari petition arrived at the Supreme Court, and the Justices began looking at them. I believe that the judges on the 9th Circuit did the same thing. Why bother making a decision if the Supreme Court will make one this term, especially if that decision overturns the one you make? Most judges hate being overturned by a higher court.
I believe that both the 6th and 9th Circuits planned on withholding their decisions until the Supreme Court granted certiorari. That would allow for both Circuit Courts to issue stays on their opinions pending Supreme Court review. In this way, they would the follow the Supreme Court’s guidance and not be overturned. But then the Supreme Court did the unthinkable and denied certiorari. Although such denials have no value as legal precedent, in this case, it sent out a strong message that the 4th, 7th, and 10th Circuits did the right thing by striking down the bans. Furthermore, while at the University of Minnesota Law School, Justice Ruth Bader Ginsburg practically dared the 6th Circuit to uphold the bans, implying that the Supreme Court would take a marriage case only if a Circuit Court deviated from the others. My theory is that the judges on the 6th Circuit have been busy rewriting the case, changing the disposition from one that upheld the bans to one striking them down. Therefore, the panel may avoid the wrath of the Supreme Court Justices, who clearly do not want to deal with another marriage case this soon.***
Three other Circuit Courts, the 5th, the 8th, and the 11th, also have cases working their way through the system. The 5th Circuit, possibly the most conservative in the country, is next after having fast-tracked and joined together cases in Texas and Louisiana. The 8th and the 11th Circuits will be equally as fascinating, particularly the former which previously issued a pro-marriage ban decision, but that was pre-Windsor. The circuit party is well underway. Stay tuned, there’s plenty more to come.
* Maryland in the 4th Circuit, New Mexico in the 10th Circuit, and Illinois in the 7th Circuit already had laws extending marriage licenses and recognition to same-sex couples and are therefore not affected by the Circuit Courts’ decisions.
** The Nevada case, Sevcik v. Sandoval, was actually a victory for the state at trial. Sevcik was argued and a decision issued prior to the Windsor decision. This past week, the trial judge, whose opinion in Sevcik was nothing short of insulting toward gays and lesbians, recused himself from taking further part in the case, and thereby did not have to issue an order compelling Nevada to allow same-sex marriages.
*** Spare a thought for poor Judge Jeffrey Sutton. He is a strong favorite for the Supreme Court the next time a Republican wins the Presidency, but now he is in a really awkward position. If he strikes down marriage bans, he will anger his more ardent supporters who are uncompromising and already angry with him (he upheld the Affordable Care Act). On the other hand, if he votes to uphold the bans–particularly in the face of strong evidence that the Supreme Court really, really, wants those bans to be struck down–not only will he be remembered as a villain by history, if he should ever be nominated to the Supreme Court, he will also be remembered by a strong opposition who will tar him as homophobic and unfit to serve.