Circuit Party

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  So I apologize if by the time this post is uploaded, it is already hopelessly out of date.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.

Oct 5 Map

Here it is now.

Oct 12 Map

(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.

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.*** [Edit: Well, that was wrong.]

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.

Footnotes:

* 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.

Rewriting History: The Revolution Began In 2008

Recently, The New York Times published an excerpt from Jo Becker’s forthcoming book Forcing the Spring: Inside the Fight for Marriage Equality.  The excerpt in question detailed the end of President Obama’s phony “evolution” in coming to support marriage equality.  Becker’s book however, has set off something off a nuclear reaction of criticism.  I have not read the book, but from all that I have read, that opprobrium is more than merited.

The basic flaw of Becker’s book, which she herself does not deny, is that she either ignores or disregards practically everything about the marriage equality movement prior to the 2008 election when both Obama and California’s noxious Proposition 8 won at the polls.  The heroes of Becker’s book are: (1) a then-unknown political consultant named Chad Griffin who founded Americans for Equal Rights (AFER) to overturn Prop 8 in the courts and later became president of the Human Rights Campaign; (2) David Boies and Ted Olsen, the superstar lawyers who headed up the legal team (hired by AFER) to overturn Prop 8 and by extension bring marriage equality to the whole nation; and (3) Ken Mehlman, the (gay) former head of the Republican National Committee who, along with Olsen, allegedly helped make marriage equality palatable to Republicans–and who was also a major fundraiser for AFER.  According to Becker it was their combined efforts that led first to public White House embrace of marriage equality and then victory at the Supreme Court.

Except, of course, that is not how the story goes.  2008 was an important touchstone, but it is only one part of a larger story that has not been written yet and has not been finished.  In framing her story as such, Becker ignored the entirety of the marriage equality movement, and worse, has slighted its most important architects.  One of those architects, Andrew Sullivan, is outraged, and has posted a great many blog posts to that effect.

Now I am no fan of Andrew Sullivan.  He is myopic, stubborn, self-promotional, and at times downright dishonest.  His continued bashing of the gay left for the resignation of Brandon Eich, rather than say, Mozilla (who got rid of him) or Eich himself (for donating to Prop 8) is more about Sullivan’s political agenda than any kind of passion for free speech.  In Sullivan’s world, the gay left deserves the blame.

Nevertheless, in this instance his reading appears to be absolutely true.  It is because Sullivan is the messenger, probably too many people will refuse to hear his message, and it is a message that needs to be heard.  Becker, for her part, herself did not acquit herself particularly well in her response to the criticism, effectively saying she was not trying to write an overarching history–an about-face from her publisher’s publicity materials and even her own writing.  What Becker’s critics (including Sullivan, Nathaniel Frank, Chris Geidner, Isaac Chotiner, Gabriel Arana, Dan Savage, Frank Rich, Jim Messina, John Aravosis, Michelangelo Signorile, Noah Feldman, and many others) have pointed out is that Becker disregarded or ignored the marriage equality movement’s most important activists and touchstone moments while propping up the lesser lights of the Prop 8 team to whom she had full access.  Among the disregarded include Evan Wolfson, Mary Bonauto, and Sullivan, as he himself was quick to note.

But Sullivan, despite being correct, engaged in a little revisionism of his own.  Yes, it is true that his 1989 cover story for The New Republic was a major statement, particularly as he made a conservative case for marriage equality, and yes it is also true that many gay people criticized him (and Wolfson), sometimes especially viciously, for advocating marriage rights.  But Sullivan’s rants make it seem like marriage equality was his brainchild, born in 1989, and aided in part by Wolfson (a staunch liberal) and some other gay conservative and libertarian thinkers.  Sullivan was by no means the first person to make the case for marriage equality; same-sex unions have existed around the world throughout recorded history.  In fact, a little over a month after Sullivan wrote his cover story, six same-sex couples in Denmark entered into the world’s first registered partnerships, which was like civil unions but without child custody rights.  As the New York Times noted at the time, registered partnerships in Denmark were the culmination of “a 40-year campaign by gay rights advocates.”  (Full marriage equality did not come to Denmark until 2012.)  While it is tempting here in the United States to think that the rest of the world follows our lead on LGBT rights because of Stonewall and such, the truth is that the movement for gay rights and same-sex marriage was a central European (re: German) innovation.

Even in the United States, the push for same-sex marriage did not start with Sullivan or even Wolfson, whose 1983 law school thesis was about marriage equality.  (Wolfson was probably the most unfairly maligned figure in Becker’s book, tarred as a reactionary and an obstacle to progress, when the truth is that no one has been more important to the success of the marriage equality movement.)  In truth, even Wolfson was late to the game.  In 1970, Richard John Baker and James Michael McConnell tried to get a marriage license in Minnesota and were tried.  They appealed their case all the way to the United States Supreme Court, who turned it down for “want of a substantial federal question.”  (Although Minnesota now has marriage equality and clearly the Supreme Court has recognized that there is a substantial federal question involved, Baker and McConnell’s case, Baker v. Nelson, was not explicitly overturned and still lurks in opposition briefs in marriage equality cases.)  Other same-sex couples in the 1970’s also tried to get marriage licenses with no more lasting success.

The most important motivating factor in the battle for same-sex marriage however, was not a person but an epidemic–a fact that no one involved in the marriage movement would deny.  When the AIDS pandemic hit in the early 1980’s, it was seen as a gay disease; the original name was not AIDS, it was GRID–Gay Related Immune Deficiency.  The AIDS epidemic was therefore treated not as a health crisis, but as a moral judgment on a deserving population of degenerates.  (Never mind that other populations were also suffering.)  The lack of legal protections for couples became immediately and horrifically apparent.  Two men who built a life together learned that the law did not protect them when the worst hit.  Same-sex partners were denied hospital access to their dying lovers, often by spiteful, homophobic family members.  Survivors were thrown out of their homes, and their assets were seized.  (Those who now call gay people bullies?  They were the ones who remorselessly threw same-sex partners out in the streets.)   It was out of this mass tragedy, not Prop 8, that the marriage movement took on an urgency that is only now coming to fruition.  There were major setbacks along the way, most famously DOMA in the 1990’s, and the slew of state constitutional bans that followed, particularly in the 2004 elections.*  Nevertheless, despite the worst backlashes, it was clear to all but the most pigheaded reactionaries that progress was marching only forward, just longer than hoped.  This was not a movement that had lost its way as Becker would have you believe, but one that was steadily influencing the law and public opinion to get to the point where a federal court challenge was feasible.  And until 2003, the movement labored under the shadow of Bowers v. Hardwick, a reminder of the dangers of a Supreme Court setback.

To disregard all this, to treat Evan Wolfson, a man who devoted most of his professional life to the cause of marriage equality, so disdainfully, to nearly ignore Mary Bonauto,** in favor of Griffin, Boies, and Olsen is both shameful and misguided.  Let us not forget that Prop 8 was not a resounding victory for marriage equality; it was a limited case won on a technicality and will be forever overshadowed by its immensely more important companion case United States v. Windsor, which Becker astonishingly downplays (Signorile claims that Becker threw Edie Windsor and her attorney Roberta Kaplan under the bus).  Getting back California was a big win, but it was nowhere near the “marriage everywhere” decision that AFER had promised.  Windsor, on the other hand, (and I cannot say this enough) is the most significant civil rights decision since Brown v. Board of Education.  Around the country, every federal court decision about marriage equality orbits around Windsor.  In that sense, Olsen and Boies dramatically failed.  Even now, it is entirely likely that Boies and Olsen will not be first in the race back to the Supreme Court, as they are focused in Virginia and the cases in Utah and Oklahoma are much more likely to get there first.  (I linked to Feldman’s piece above, and it is worth linking to again to note how risky a game Boies and Olsen played, and how we can only hope they don’t get a second bite at the apple.)

So as easy (and tempting) as it is to Sullivan, he is absolutely correct that Jo Becker’s history of the battle for marriage equality is access journalism of the worst kind.  Griffin, Olsen, and Boies gave her the unfettered access, and they are the ones who are lionized.

Footnotes: 

*  I once went to hear Dan Savage speak, something I recommend everyone should do, and someone asked him whether Ken Mehlman has done enough to be forgiven for his part in the 2004 elections.  Savage equivocated during the course of his answer moving from “not yet” to “yes,” which shows how much ambivalence Mehlman engenders in the LGBT community.  For my part, no matter what Ken Mehlman does, no matter how many times he apologizes, no matter how much money he raises for AFER, no matter how many Republican politicians he talks to, I will never forgive him for his part in 2004.  He exploited fear and hatred of gay people in order to make the world a worse place for everyone.  Sometimes an apology, no matter how sincere, can’t undo the damage.

** I greatly admire Mary Bonauto, who has proved time and time again to be the most important LGBT rights attorney in the country.  Bonauto brought the LGBT rights movement its first two important, permanent legal victories in Vermont (civil unions) and Massachusetts (marriage).  Bonauto and her organization Gay & Lesbian Advocates & Defenders (GLAD) were involved in every single marriage equality triumph in New England, including wildly successful challenges to DOMA that were concurrent with Windsor.  In fact, had Elena Kagen not overseen the Justice Department’s response to the DOMA cases in the First Circuit, we might today be extolling the virtues of Gil rather than Windsor.  The Supreme Court chose Windsor, a legally–if not factually–identical case, because all nine Justices would be present.  Bonauto did play an important part in Windsor; she coordinated the amicus briefs, which meant that she was heavily involved in Supreme Court strategy.  Having said that however, Bonauto is not–as some people refer to her–the Thurgood Marshall of the LGBT rights movement, despite the fact that she is the movement’s most important legal figure.  This is a statement which misunderstands the history of the Civil Rights movement and makes a false analogy.  The Civil Rights movement was a decades long, well-structured, campaign that ran almost entirely through the NAACP and its autonomous-in-name-only legal arm the Legal Defense Fund (the two entities are now completely separate).  As head of the Legal Defense Fund, Thurgood Marshall was the central figure of the movement’s legal strategy, especially at the Supreme Court where he personally argued multiple cases.  A somewhat better analogy is in the (non-abortion) gender equality cases of the 1970’s, which ran through the ACLU’s Women’s Rights Project.  As head of the Women’s Rights Project, Ruth Bader Ginsburg shaped the movement and its direction.  GLAD however, is one of several LGBT rights organizations and, unlike some others, limited to a geographic region (New England).  Although groups like GLAD, Lambda, and the ACLU may work in tandem, there is also a competition between them, which Ariel Levy discussed in her New Yorker article about Edie Windsor.  There is no Thurgood Marshall (or Ruth Bader Ginsburg) of the LGBT rights movement.  This is not a knock on anyone, it is a recognition of the LGBT movement’s decentralization.

Michiganers May Marry

Another day, another state marriage ban on same-sex marriage falls.  This time, the case, DeBoer v. Snyder, from Michigan.  The legal portion of the opinion is not particularly groundbreaking albeit emotionally compelling.  Judge Bernard Friedman (a Reagan appointee, not that it matters) struck down the law based on a rational basis review under the Equal Protection Clause.  Other courts have been more groundbreaking legally or have interpreted United States v. Windsor more expansively, but Judge Friedman’s opinion is just as important, although for a completely different reason.

Until now, every post-Windsor victory has come via summary judgment, or in the case of Texas, preliminary injunction.  This means that none of those cases has gone to trial.  DeBoer however, did go to trial, and the reason for that is because unlike the other cases, DeBoer actually predates the Supreme Court’s Windsor decision.  Originally DeBoer was about adoption rights.  The lesbian plaintiffs–who are a couple–could not jointly adopt their three children because Michigan law allows only married couples to jointly adopt, and same-sex couples cannot marry under the Michigan constitution.  The plaintiffs, when they initially went to court, were concerned only about adoption not marriage.  Judge Friedman concluded that the plaintiffs were making the wrong argument.  He offered the plaintiffs the chance to amend their complaint to challenge the state’s marriage ban, which they did.  Michigan filed to dismiss the complaint, and Judge Friedman put the case on hold until after the Supreme Court handed down Windsor.

Following Windsor, Judge Friedman concluded that he could not just grant summary judgment to either side.  Therefore, he ordered a trial to be fast tracked.  After this decision, federal courts in Utah, Oklahoma, Virginia, Texas, Kentucky, and Ohio all struck down state marriage bans in part or in total.  I suspect (but cannot prove) that had the summary judgment motions in DeBoer been considered after other post-Windsor decisions, Judge Friedman would have also issued summary judgment.  Judges are conservative creatures by nature, and when there is no precedent (like, for example, four or five other federal judges striking down marriage bans on preliminary motions), they are more likely to act methodically.  In this case, “methodically” meant a full trial in which both sides brought in expert witnesses.

What makes the Michigan case so important however, is the trial itself.  Trials are slow, frustrating, and boring.  Yet, now when these cases finally reach the Supreme Court there will be a record of a neutral arbiter hearing the actual evidence and deciding accordingly.  Appellate courts hear the law, but the fact finder (usually the jury, but in this case the trial judge) hears the facts, which the appellate court almost never touches.  In this case, Michigan’s entire argument was based around a belief that marriage should be limited to heterosexual couples because children do better in homes with a mother and a father.  Judge Friedman found the evidence presented at trial did not support this argument.  Ergo, Michigan had no legitimate reason to ban same-sex marriage (the test for rational basis review).  While an appellate court may say that Judge Friedman somehow misapplied the law, that court will almost certainly not dispute his findings.  In other words, no future opinion in this case will look at the record and conclude that heterosexual couples make better parents.  Which means that Michigan’s central argument will not hold water.

~*~*~*~*~*~*~*~*~*~.

DeBoer was not the first trial in which a state constitutional amendment was adjudicated (and struck down).  The Prop 8 case also went to trial, although because of its procedural issues, the Supreme Court never addressed the substance of the case.  That will not happen here; Michigan will fight until the end.

Back when Prop 8 was being litigated, supporters of same-sex marriage had mounds of evidence on their side whereas opponents were caught pretty much flat-footed.  Their expert witnesses were terrible on the stand, and for good reason; few of them were anything remotely like experts.  None of them held up under David Bois’s ruthless cross-examination.  One of opponents’ witnesses, David Blakenhorn, has even since reversed his position and now supports marriage equality.

Following their humiliation in California, right-wing institutes, most prominently the Heritage Foundation, commissioned a series of studies in which data was manipulated so as to appear that children who grow up in same-sex households suffer as compared to their peers.  Unsurprisingly, the authors of these studies had a not-very-hidden religious and conservative agenda.  The most infamous of these studies was authored by University of Texas sociologist (and arch-Catholic) Mark Regnerus.  His study, the New Family Structures Study (“NFSS”), was designed with litigation (specifically Supreme Court litigation) as the ultimate goal.  Almost from the moment the NFSS was published, it was attacked for its faulty methodology and disingenuous conclusions.  Regnerus’s own university condemned his study (and did so again on the eve of his testimony in Michigan).  The journal that published the NFSS commissioned an internal audit following the outcry and concluded that the study should not have been published at all.  Nevertheless, equality opponents trumpeted the NFSS and groomed Regnerus for trial.  (The same criticism is true about all the studies from all the state’s expert witnesses, and Judge Friedman dismissed them all accordingly.)

At trial, Regnerus and all of the other state’s experts folded under the intense questioning of ACLU attorney Leslie Cooper.  Regnerus in particular was absolutely humiliated on the stand.  Nathaniel Frank wrote a great summation of how Cooper tore apart Regnerus.  For my own part, from following the trial and reading the background, I suspected that this trial could only come out in favor of the lesbian plaintiffs.  Therefore, I was–for the first time–less interested in the law than in the facts of the case, which I usually skip altogether.  In particular, I eagerly awaited Judge Friedman’s take on Regnerus and his study.

I was not disappointed.  Judge Friedman did not just disregard the NFSS, he (there is only one to say this) tore Mark Regnerus a new asshole.  I highly recommend the entire opinion, but in particular the section on Regnerus is pure gold and must be highlighted.

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.”  In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes.  The funder also stated that “this is a project where time is of the essence.”  Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, and Windsor v. United States, [ed: these are the trial court decisions, not the Supreme Court decisions] were threatening the funder’s concept of “the institution of marriage.”

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned [American Psychological Association] position statement.

DeBoer v. Snyder, Slip Opinion, pages 13-14.  (Citations omitted, but the scare quotes around “study” are directly from the opinion.)  Judge Friedman flat-out called Regnerus a liar and a hack, which is a strong accusation for a judicial opinion, especially one of such import.  Regnerus’s reputation was weak before, but now it is in complete tatters.  In the legal world, he is persona non grata.

The reason DeBoer is so important is that this trial highlighted the best arguments the anti-equality forces could muster, and now they have run out of time.  Marriage equality had previously won on the law; now it has indisputably won on the facts too.  Full marriage equality is a matter of when not if.  And as a happy coda, Judge Friedman did not stay his decision.  As of Saturday March 22, 2014, the day after the decision, same-sex marriage comes to Michigan as four counties have announced they will start issuing licenses (until a stay is inevitably issued).

[Update: The Sixth Circuit issued a stay Saturday afternoon after 300 couples married.]

Finally, the plaintiffs reading the decision:

Breaking News: Texas Messed With

Today, yet another federal judge struck down yet another state marriage ban.  Again, the judge relied on United States v. Windsor, which is truly the gift that keeps on giving.  This time the state is Texas.  Texas is not necessarily the worst state in the country (that dubious honor perpetually belongs to Mississippi), but, Austin excluded, Texas has a pretty bad reputation, especially under the ever-growing Tea Party influence.  Unfortunately, Texas is the second most populous state in the country and is vitally important to the national economy, so as much as some of us may wish Mexico would take it back, that just ain’t gonna happen.

Since Windsor, marriage bans in full or in part have fallen in states with particularly heinous records on gay rights: Utah, Oklahoma, Virginia, Kentucky, and now Texas.  Texas was one of the few states that still enforced sodomy laws, and was the opposition party in Lawrence v. Texas, the Supreme Court case which struck down those laws.  The decision out of Texas today is not particularly groundbreaking legally–the ban was struck down through both a rational basis review under the Equal Protection Clause and a strict scrutiny review of the Due Process Clause–but that is only because at this point in time (post-Windsor) such an expansive decision is legally conservative.  This decision will be appealed to the very conservative 5th Circuit, and that will be the most interesting decision yet: either the most conservative court in the country will buck the heretofore unanimous trend and find in favor of a state ban or it will acknowledge that Windsor effectively prohibits such bans.

However the 5th Circuit rules, these cases are headed back to the Supreme Court–and sooner rather than later.  Within a matter of months, there will be decisions out of the 4th, 5th, 6th, 9th, and 10th Circuits.  Can the others be far behind (excluding the 1st and 2nd in which all the states are marriage equality states)?   My question is not about when the Supreme Court takes up the issue, because the answer is obviously next term.  My question is whether the Supreme Court will review just one of those cases (a la Windsor) or combine all of the pending cases into a days-long super-case like Brown v. Board of Education.

Stay tuned.

Misreading Windsor

Ever since the Supreme Court handed down United States v. Windsor last June, law professors and journalists have pondered over what it meant and criticized the majority’s perceived lack of clarity.  There are two major complaints: (1) ambiguous categorization; and (2) whether Windsor‘s holding relied on principles of federalism or Equal Protection.  

The complaint about ambiguous categorization in Windsor is a fair one.  When courts review laws that discriminate against a certain group, courts do so using a certain framework created by the Supreme Court to determine whether those laws violate the Equal Protection Clause of the Constitution’s 14th Amendment.  In most instances, the government–the defending party in such cases is always a governmental body–is given the benefit of the doubt and the law is upheld.  This is called rational basis review.  But when it comes to certain categories of people, the so-called “suspect classes,” the standard the government needs to meet is much higher, and therefore those laws are generally deemed unconstitutional.  This is called “heightened scrutiny.”  The major categorizations for suspect classes are race, gender, and national origin.

Sexual orientation is not one of the suspect classes that I named.  Despite the outcomes in Windsor and its predecessor cases Lawrence v. Texas and Romer v. Evans, the Supreme Court never explicitly said whether sexual orientation is a suspect class.  The judiciary, federal and state, has taken all sorts of approaches absent Supreme Court guidance.  In recent months, some federal courts, most notably the Court of Appeals for the Ninth Circuit, have looked at Windsor and decided that even though the Supreme Court was not explicit, overall jurisprudence indicates that gays and lesbians are indeed a suspect class.  This is the rationale behind the gay juror case that I addressed in my last post.

As I said above, this continued explicit guidance is a fair criticism.  I do not particularly agree with it, because I think the Ninth Circuit read the tea leaves correctly.  Nevertheless, I can understand the frustration and acknowledge its validity.

The other complaint though, I do not understand at all.  It follows as such: the Windsor majority left the judiciary in limbo because the Court did not distinguish whether Windsor was a federalism decision (i.e. whether the federal government unconstitutionally encroached onto states’ rights) or an Equal Protection decision.  This is important because when state bans on same-sex marriage come before courts, those bans will probably fail under an Equal Protection framework but succeed under a federalism one.  On Slate, Dahlia Lithwick and David S. Cohen co-wrote a column suggesting that Windsor is an Equal Protection decision, not because the Supreme Court wrote it that way, but because subsequent state and federal judges have unanimously interpreted it as such.  By Lithwick and Cohen’s count 18 of 18 court decisions (and 32 of 32 judges) have all come to this conclusion.  That unanimity is essential to Lithwick and Cohen’s thesis.  They posit that judges could have interpreted Windsor as a federalism decision, but because they are universally choosing not to do so, eventually nation-wide marriage equality is inevitable.

I don’t disagree with Lithwick and Cohen’s conclusions; Windsor is indeed an Equal Protection decision, and marriage equality is inevitable.  Where I disagree with them–and all the other law professors and journalists who have spilled much ink on this subject–is this misconception that the Windsor majority was unclear.  Windsor is not an Equal Protection decision because subsequent federal judges read it as such; Windsor is an Equal Protection decision because Windsor is an Equal Protection decision.  This is not a tautology; the Court’s methodology is in the text, and it is not hidden.  The reason that 32 of 32 judges have decided the way they did is because they can read.

I believe that the bulk of the Windsor decision comes not from the majority opinion, but from the dissents.  There are two dissents of note in Windsor, one from Chief Justice John Roberts, and the other from Justice Antonin Scalia.  (There was another one from Justice Samuel Alito, which amounts to, “I’m scared of new things because I don’t understand them, and I don’t like them.”  As such this dissent has been forgotten.)  Scalia’s decision is the more famous of the two, because it was written by Justice Scalia.  When he dissents, he fulminates with puffed up, operatic rage.  In his Windsor dissent, Scalia rewrote the majority opinion to apply to state laws.  Perhaps he thought he was being cutting, but to date at least four federal judges who ruled in favor of equality have cited his dissent as a basis for their opinions–classic benchslap.

While Scalia’s opinion is the more significant dissent, Roberts’s opinion is the reason why everyone is confused.  The Roberts dissent tried to limit the scope of Windsor by painting the majority decision as a federalism decision.  Significantly, none of the other dissenting Justices signed on to the Roberts dissent.  Scalia mocked it.  So why have so many law professors, pundits, and journalists wondered whether Windsor is federalism opinion?  Perhaps it is because John Roberts is a very smart man.  Perhaps it is because no one wants to believe that the Chief Justice of the United States deliberately misinterpreted a judicial opinion in a way unworthy of the cheapest political hack.  Perhaps it is because they need something to debate.  I have no idea, but they are wrong.

While at least three or four federal judges have gone toe-to-toe with Scalia, not even one has engaged the Roberts dissent.  Yes, they have heard federalism arguments, and yes, they all held that Windsor is not about federalism, but they have not refuted Roberts’s dissent so much as ignored it.  There is a reason for that, and it is not just that Roberts, whose opinion lacked hysteria, is a far less easy target to mock.

On pages 18 and 19 of the Windsor slip opinion, Justice Anthony Kennedy addresses the question about whether Windsor is a federalism opinion.  (Highlighting is mine, and I removed citations to previous cases, but otherwise kept the citation intact.)

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. ““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’””

The Federal Government uses this state-defined class for the opposite purpose——to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy’s language is flowery, as is his wont.  Nevertheless, his meaning is quite clear.  This quoted section is the pivot in the legal reasoning.  Prior to this excerpt, Kennedy wrote in great detail about federalism principles, and how it has historically been the right of the states to define marriage.  Had he stopped there, Windsor would have indeed been a federalism decision.  But in the above excerpt Kennedy writes that it is not principles of federalism that are central to Edie Windsor’s case.  Federalism principles mattered in Windsor only because Congress’ violation of those principles in enacting DOMA signaled a suspicious and insidious ulterior motive.  That something, Kennedy concludes in the next section, was animus toward gays and lesbians, which is unconstitutional under the implied equal protection guarantees of the 5th Amendment.*

Scalia understood all this and would not let it go unchallenged.  He also understood, that if the judicially manufactured equal protection guarantees of the 5th Amendment applies to same-sex couples, then the next logical step is that the actual equal protection guarantees of the 14th Amendment must also apply.  The only possible outcome is for state bans on marriage equality to also fail constitutional scrutiny.  The Windsor majority may not have explicitly stated this, but their inherent message to the federal judiciary was equally loud and clear as Scalia’s overwrought one.  That is why all subsequent decisions have unanimously sided with marriage equality.

Footnotes:  

*  There is no Equal Protection Clause in the 5th Amendment; the Equal Protection Clause is unique to the 14th Amendment.  The 14th Amendment however, applies only to the states and not the federal government, which could have been a source of major embarrassment for a Supreme Court that wanted to combat discrimination.  The most famous use of the manufactured 5th Amendment equal protection guarantees is found in Brown v. Board of Education.  There were actually five cases collectively known as Brown, and one of those cases, Bolling v. Sharpe, came from Washington DC.  As Washington DC is not a state and under federal government control, the 14th Amendment does not apply.  Thus, the Warren Court used the 5th Amendment for the DC case and the 14th Amendment for the state cases .

Marriage Momentum: Valentine’s Edition

Last night, Judge Arenda Wright Allen, a federal district court judge in Virginia, struck down that state’s ban on same-sex marriage.  It was a forceful opinion, finding that such a ban could not withstand scrutiny under the full force of the 14th Amendment’s Due Process Clause, nor a less exacting rational basis review under the Equal Protection Clause.  If you don’t understand this legal jargon, that’s okay.  Just know that the opinion is quite powerful, very pro-marriage equality, and is not outside the legal norm.

Like earlier decisions in Utah and Oklahoma, the one from Virginia is a grant of summary judgment, which means the judge decided that a trial was not necessary.  In fact, the judge had asked the parties if they felt oral argument on the motions was necessary (they did).  The fact that such a long opinion came down so quickly after oral argument suggests that the opinion had been worked out prior to oral arguments.

Witness again the power of United States v. Windsor.  I have said over and over again that this is the most important civil rights case since Brown v. Board of Education.  When Windsor struck down DOMA, the federal government was forced to recognize same-sex marriages.  All sort of federal rights that were previously denied to same-sex couples have been granted.  Also following Windsor, two state high courts, New Jersey and New Mexico, mandated marriage equality in their respective states.  But the real promise of Windsor is what is happening now; the federal judiciary has been unchained.  Prior to Windsor, federal judges would have hesitated to make sweeping rulings about marriage bans.  Even the trial and appellate decisions in Prop 8, the lone marriage case brought before the federal judiciary, were measured.  But post-Windsor, the flood gates have been opened.  The opinions issued have not just been favorable, they have been overwhelmingly forceful.  Moreover, these are not just happening in so-called blue states.

Here is a round-up of all the federal cases that have thus far been decided and which will all probably be ready to go to the Supreme Court in the 2014-2015 term.

1. Utah – A federal judge struck down the marriage ban.

2.  Oklahoma – A federal judge struck down the marriage ban.

3.  Ohio – A federal judge held that the state must recognize a valid same-sex marriage performed in another state for death certificate purposes (and implied that the marriage ban is unconstitutional).

4.  Kentucky – A federal judge held that the state must recognize same-sex marriages validly performed in other states where they is legal (and implied that the marriage ban is unconstitutional.)

5.  Virginia – A federal judge struck down the marriage ban.

6.  The Ninth Circuit – As always, the Court of Appeals for the Ninth Circuit is ahead of the curve.  In a case between two large pharmaceutical companies seemingly unrelated to marriage equality, the Ninth Circuit held that a gay juror cannot be removed by a peremptory challenge on the basis of his sexual orientation (just as one cannot be removed for race or gender).  Although there is nothing in the case about marriage, this is an extremely important decision for the marriage equality movement.  The Ninth Circuit held that sexual orientation is a protected class and thus deserves heightened scrutiny under the Equal Protection Clause of the 14th Amendment.  Which means that any law that discriminates against gay people has a high bar to meet in order to prove its legality.  No marriage ban can meet that standard.  After the gay juror decision, Nevada’s Attorney General (Democrat) and Governor (Republican) withdrew from the defense of their state’s ban.  The Ninth Circuit will hear that case shortly.  When Nevada’s ban falls (and it is a “when” not an “if”), the bans in the other Ninth Circuit states will also have to fall.  By my count that will apply to Montana, Idaho, Arizona, Alaska, and Oregon (if that state’s ban is not already overturned at the ballot box in November).

Which means that at least one, but more likely several, of these cases will be back at the Supreme Court in the next term for the final showdown.

Happy Valentine’s Day!

The Ongoing Saga Of Marriage Equality In Utah

When we last left off, a federal judge named Robert Shelby held that Utah’s ban against same-sex marriage (and same-sex partnerships of any kind) was a violation of the Constitution.  Immediately following the ruling, same-sex couples rushed to get marriage licenses.  That they were able to do this was in part due to the incompetence of the embattled Utah Attorney General’s Office which neglected to properly file for a stay of judgment.  When the AG properly filed for a stay, both Judge Shelby and (on appeal) the Tenth Circuit Court of Appeals refused to grant it.  Shelby’s refusal was not surprising given his earlier ruling, but the denial of stay from the Tenth Circuit was definitely a shock.  First, the Tenth Circuit is one of the more conservative in the country, which is not surprising considering that it has jurisdiction over Utah, Oklahoma, Wyoming, and Kansas.  Second, in denying the stay, the Tenth Circuit effectively played its hand, and let it be known how it planned on ruling.  In such a weighty case, a denial of stay is rare absent an almost overwhelming certainty that one side will win.  (Two comparisons are useful.  The much more liberal Ninth Circuit Court of Appeals stayed the decision in the Prop 8 case pending a decision by the Supreme Court.  Post-Windsor, the New Jersey Supreme Court rejected a stay from the Christie Administration, which led to the Administration dropping its case.)

Utah appealed the stay denial to Justice Sonia Sotomayor, the Circuit Justice for the Tenth Circuit.  She in turn referred the matter to the full Supreme Court which issued a stay.  This is not actually surprising.  The Supreme Court is a very conservative institution.  Not necessarily in the political sense (although it is currently that too), but in that the Justices are terrified of being seen as moving too quickly.  Remember, the Utah case (Kitchen v. Herbert) has not actually been litigated; Judge Shelby granted a motion for summary judgment, and no trial was held.  Had the Supreme Court also denied a stay, it would have sent a message to every trial and appellate judge in the country that bans on marriage equality were effectively dead without even a consideration of the issue.  That is much too fast for the Supreme Court.  (So please calm down, Jeffrey Toobin.)  The stay is written such that it is effective until the Tenth Circuit makes a determination.  The case has already been fast-tracked on that court’s docket.  Expect the issuance of another stay if the Tenth Circuit finds for the same-sex couples.

This is all basically cut and dry.  Very legal and routine.  After this point though, things get a little bit dicey.  In response to the Supreme Court’s stay, the Governor of Utah (the Herbert of Kitchen v. Herbert) told the state not to recognize the over 1300 same-sex marriages that had already taken place.  Although this action pleased homophobic activists like Brian Brown and Tony Perkins, the Governor is completely in the wrong.  The Supreme Court stay stopped the state from issuing any further marriage licenses to same-sex couples, but the Court said nothing about the ones that already took place.  Which, I might add, were performed legally under a decision that has not yet been overturned.  The legality of those marriage may yet be up for debate, but not at this time.  (For a comparison, the same-sex marriages in California that occurred between the In Re Marriage Cases decision and the passage of Prop 8 a few months later were still deemed valid by the California Supreme Court.)

The Tenth Circuit will not look kindly on Utah’s actions–first because the Governor has countermanded a court order, and second, because the Governor has caused an actual harm.  Needless to say, the ACLU has already begun the process of challenging Utah’s refusal to recognize the 1300 legally married same-sex couple.  Expect litigation to be undertaken immediately, as there is no shortage of plaintiffs.  In response to Utah, the Obama Administration announced that it will recognize those 1300 Utahan marriages for all federal purposes (immigration, tax, Social Security, and the like).  This a major, if expected, triumph and it largely offsets much of the damage done by Utah’s state government.  It also sets up a direct challenge for the Supreme Court that will be hard to ignore.  There can be no federalism feint anymore; Kitchen v Herbert is all about the equality of gays and lesbians and the fundamental nature of marriage.