As I am deciding whether to keep this blog, I have become addicted to the ABC Family Show “The Fosters.” I have my issues with the show, which I may or may not write about, but nevertheless it is highly entertaining. But one thing recently struck me; the terrific Maia Mitchell, who plays the central character Callie Jacobs, so much resembled Linda Cardellini from her “Freaks and Geeks” days. I’m not comparing the two shows, “Freaks and Geeks” was, despite only having one season, one of the most perfect shows ever to air on television, and “The Fosters,” despite its addictive quality, has a very strong tendency to repeatedly dive into needless melodrama. But Mitchell’s Callie not only looks like Lindsay Weir, she has many of the same mannerisms. Put her in an army jacket (please, someone, make it happen!) and it would be like Lindsay reborn.
Trust Alabama to go full-on crazy.
A quick recap.
Since Windsor was handed down just over a year and a half ago, judge after judge has struck down same-sex marriage bans throughout the country (the exceptions being Louisiana, Puerto Rico, and the Sixth Circuit)*. Some states like Pennsylvania and Oregon quietly accepted the decision and went about their business. Some officials in other states ranted and fumed and continued appealing to the Supreme Court, but backed down after that failed, even in the most retrograde states like Oklahoma and Utah.
Following the Supreme Court’s clear signal that it had no intention of stopping the lowers courts from striking down marriage bans, even more bans fell. Arizona, Idaho, Alaska, Montana, North Carolina, South Carolina, Wyoming. All these states were in circuits that had ruled in favor of same-sex couples, all their bans fell, and the Supreme Court refused to hear any of them.
The Sixth Circuit, in contrast to all other Circuits that heard the issue, upheld the bans in four states and that decision was appealed to the Supreme Court. While those cases were pending a certiorari decision, a judge in Florida struck down that state’s marriage ban and, although there was a stay, it was finite. The 11th Circuit would not continue the stay, and then, another shock, neither would the Supreme Court–the first time it allowed a stay to lapse before the appropriate Circuit Court of Appeals heard the case. That too gave further ammunition of those observers who believed the Justices were preparing to rule in favor of nation-wide marriage equality.
Which brings us to Alabama. A few weeks ago a federal judge** struck down Alabama’s constitutional ban on same-sex marriage. The stay was to expire on February 9th, just enough time to allow the state to appeal to the 11th Circuit and, if need be, the Supreme Court. The 11th Circuit refused to extend the stay, and this morning, as the stay was set to lapse, the Supreme Court weighed in. Or rather it didn’t weigh in. The Justices denied the stay request. This is all the more significant because the four cases out of the Sixth Circuit have been granted cert, and in such cases issuing a stay to other like cases is almost pro forma. By not acting, the Supreme Court’s message is loud and clear: marriage bans are doomed. Certainly Justice Thomas (and Justice Scalia) believes that. In fact what he wrote was that not extending the stay “may well be seen as a signal of the court’s intended resolution of that question.”
Whereas previous negative reactions from state officials to federal courts striking down marriage bans in their states have largely been sound and fury signifying nothing, Alabama has gone completely off the rails. On February 8th, knowing that the stay in the Alabama case would expire the next morning, the lunatic, fanatical-Christianist, already-removed-from-office-once, state Supreme Court Chief Justice Roy Moore ordered all the probate judges in the state to not issue marriage licenses to same-sex couples. Officials in 52 of Alabama’s 67 counties have thus far complied with Moore, even though in denying the stay request, the Supreme Court clearly undercut him. So Alabama is in complete chaos right now.
If this sounds familiar to you, well… obviously.
No doubt the good people of Birmingham, Huntsville, and Montgomery (where same-sex marriages are taking place without problem) are embarrassed and thinking to themselves, “Not again.” And they can’t even take comfort in Mississippi being an even bigger embarrassment because the decision striking down Mississippi’s ban is currently stayed pending appellate review. (But if the Fifth Circuit rules in favor of same-sex couples before the Supreme Court does, then we’ll see if Mississippi can out-Alabama Alabama.)
So thank you, Alabama for the needless drama which you will ultimately lose. Way to shore up that reputation!
* The Louisiana decision looks likely to be struck down by the Fifth Circuit, the Puerto Rico decision is pending First Circuit review, and the Sixth Circuit decision will be heard by the Supreme Court this spring.
** Who, fittingly enough, is the granddaughter of Richard Rives of the “Fifth Circuit Four,” four southern federal judges who the vanguard in the legal battle for equality during the Civil Rights Era.
The Supreme Court has finally granted certiorari to a marriage equality case, specifically the four from Michigan, Ohio, Kentucky, and Tennessee. In those cases, the intermediate appellate court, the Court of Appeals for the 6th Circuit, overturned all the trial court judges’ decisions and upheld the states’ constitutional bans on same-sex marriage. Predicting a Supreme Court decision is risky, but there are many signs that a majority of Justices will reverse the 6th Circuit and find a constitutional right to same-sex marriage.
If one looks at the situation logically, the Supreme Court has already given its answer to the impending cases in United States v. Windsor, the 2013 case that struck down the part of the Defense of Marriage Act (DOMA) that prevented the federal government from recognizing same-sex marriages. Despite what you may have read in the newspapers, Windsor was in no way a federalism case. Those who says otherwise are deluding themselves (and Chief Justice John Roberts is in that camp with his Windsor dissent.) The language in Windsor, its narrative if you will, underscores the fact that it is an Equal Protection Clause case and not a federalism case. The disregard of federalist principles, according to Windsor, is important only insofar as it is evidence that points the way to DOMA’s true crime: the violation of the promise of equal protection.
Windsor rests on one of the Supreme Court’s most famous sleights of hand. The Equal Protection Clause is found in the 14th Amendment, and it only refers to the 50 states, not the federal government. Windsor however rests on the 5th Amendment’s implied promise of equal protection, a constitutional precept that does not actually exist.* The Supreme Court created this legal fiction in 1954 because one of the five school segregation cases was in Washington DC, which, as a federal district, is not covered by the 14th Amendment. It would have completely undermined the Supreme Court to exempt DC schools from Brown v. Board of Education. In Windsor, the Supreme Court majority held that the implied Equal Protection Clause protects same-sex couples from discriminatory laws. Logically, one must acknowledge then that the actual Equal Protection Clause protects against the exact same discrimination. (Very little commentary I have read discusses this, but it is hugely important for the impending cases. That was why Justice Scalia was so animated in his dissent; he understands logic.)
The Equal Protection argument is so strong that opponents have all but abandoned federalism. Federalism is all well and good, but it does not trump the distinctly anti-federalist 14th Amendment. The dominant arguments that have been made since Windsor are as follows:
1. Baker v. Nelson already decided this. Baker was a decision from the early 1970’s in which the Supreme Court received a petition from a gay couple seeking to marry in Minnesota. The Justices did not hear the case. Rather, they issued a short dismissal, saying that the issue (same-sex marriage) lacked a substantial federal question. Opponents (including the 6th Circuit) have clung to Baker, which is ridiculous as Windsor, by its very nature, overrules Baker. Regardless of whether Baker is intact or not (and it’s not), the Supreme Court is not bound by it. By granting cert to these new cases and creating two federal questions for the case,** the Supreme Court has explicitly overruled Baker.
2. Same-sex marriage is too new, and therefore scary. Constitutionally speaking, there is no such thing as a “Too New” doctrine. Nevertheless that formed the basis of Justice Alito’s dissent in Windsor. Additionally, same-sex marriage is not too new; it has existed in the United States since May 2004 (Massachusetts) and abroad since 2001 (Netherlands). Registered partnerships for same-sex couples are older (Denmark 1989, Vermont 2000), and gay and lesbian parenting is older still. There is a large body of scientific and sociological literature studying all aspects of same-sex marriage. In the Michigan case, probably the most significant of the four the Supreme Court will hear, there was a trial in which much of this evidence was considered. Notably, the trial judge found the evidence in favor of same-sex marriage credible and the opposing evidence completely non-credible. As an appellate court, the Supreme Court (theoretically) has to accept as a given the trial judge’s findings and may not reexamine the evidence. Theoretically.
3. Let the people decide! This, along with Baker (above), was the basis of the 6th Circuit opinion. This argument says that the people voted by overwhelming majorities to ban same-sex marriage, and the people have the right to decide. Of course, the answer to that is the people do not have the right to enact an unconstitutional law by majority vote or any other means.
4. Responsible breeding. Given that this argument was so thoroughly eviscerated by Richard Posner in the 7th Circuit cases, it is amazing that opponents still try to use it. That probably has more to do with the fact that there are really no better arguments left in defense of the state bans. The gist of the responsible breeding argument goes like this: same-sex couples cannot have babies due to irresponsible sex, rather they have to plan and prepare for them. Because they are so responsible, they do not need the protections or inducements offered by marriage–unlike those lazy, irresponsible heterosexual parents who just get drunk and start popping out kids and who would not stay together were it not for those state benefits. Attention all heterosexuals, I think you should be insulted by this argument.
5. Lack of animus. This one is a little tough to explain without a constitutional history class, but it goes back to the first major gay rights victory in the Supreme Court, a 1996 case called Romer v. Evans. Over the decades (long before Romer) as the Supreme Court fashioned its Equal Protection jurisprudence, it created tiers of review. Laws that affected people on the basis of certain classifications (race, gender, nationality) were given more consideration than laws that affected other classifications (everything else). Historically oppressed groups were offered greater protections by the courts, and therefore laws affecting them were scrutinized more closely. In contrast, laws that affected other groups, needed only a reasonable explanation to pass constitutional muster. So long as they were not laughed out of court (see: Judge Posner and the responsible breeding argument), the reasoning was accepted.
Prior to Romer, it was assumed that laws targeting sexual orientation were in the “everything else” category. This was in the bad old days when the Supreme Court’s decision Bowers v. Hardwick (upholding sodomy laws) was still good law. Romer changed things. Sort of. The Romer court struck down a Colorado state constitutional amendment targeting gay people on the basis that it was motivated by animus against them, and animus is the only consistent way to strike down a law that affects a non-protected class. Although the Supreme Court has since issued two other high-profile gay rights decisions (Windsor and Lawrence v. Texas), it never bothered to explain whether sexual orientation was a protected class. Therefore, the animus doctrine is still the standard in gay rights cases.
At the Windsor oral argument, Justice Kagan ambushed the attorney defending DOMA by reading to him from the House report, which stated outright that DOMA was passed because of moral disapproval of homosexuality. Windsor was an easy case in this regard. What judges across the country have wrestled with regarding bans on same-sex marriage is how to strike them down without calling the people who voted for them bigots. That however, fundamentally misunderstands animus. Animus is not the same thing as hatred or bigotry. As the law professor Susannah Pollvogt wrote in the foremost article on the subject of animus:
[T]he animus inquiry asks whether a law impermissibly gives effect to–indeed, expresses–stereotypes or biases about a particular social group based on that group’s status or associations rather than individual conduct.
In the case of the marriage bans, given the large body of evidence, the answer is clearly yes, there is impermissible animus. The methods, the motives, the time period, all of these things contribute to a stark reality showing that such bans passed because of animus toward gays and lesbians.
The sides that favor bans on same-sex marriage have no good arguments. From a legal perspective, a fairness perspective, and from a historical perspective, marriage equality should be the law of the land. I would also add that in terms of preventing chaos, the Supreme Court must rule in favor of marriage equality. That the Court should be in this position is its own fault. Had the Court taken cases from the 4th, 7th, 9th and 10th Circuits when they came up, rather than waiting for a circuit split, they could have resolved the issue cleanly one way or another. Since Windsor, around 20 states no longer have marriage bans due to federal court intervention. In those cases where court decisions were appealed, the Supreme Court denied cert. Since that time, thousands of same-sex couples have married in those states. If the Supreme Court rules in favor of state bans, then what happens to those marriages and those families? What happens to those couples who have not married yet but have plans to? Upholding the marriage bans would be a profoundly evil and cruel decision, one of the great travesties in Supreme Court history alongside Dred Scott, Plessy, and Korematsu.
Let us hope the Supreme Court gets it right this time. All evidence indicates that they will.
* The thinking behind the 5th Amendment’s guarantee of Equal Protection is as follows: the 14th Amendment has both a Due Process Clause and an Equal Protection Clause which apply to the states. The 5th Amendment has a Due Process Clause which applies to the federal government. Therefore, the 5th Amendment must also therefore have an Equal Protection Clause because equal protection and due process are inextricably tied.
** There Supreme Court has asked two questions for oral argument: (1) whether the 14th Amendment require allowing same-sex couples to marry; and (2) whether the 14th Amendment requires states to recognize marriages from other states.
Valerie Cherish has walked off into the sunset with an Emmy in one hand and Mark’s hand in her other. There is no word yet on when or whether Season 3 of “The Comeback” will happen. (Please HBO! Make it happen!) As we wait, it is time to turn our attention to two of HBO’s other half-hour prestige comedic dramas, which are returning this week. On Sunday, “Girls” and “Looking” will begin their fourth and second seasons, respectively. Both shows are very similar to “The Comeback” in that they are critical hits, have a strong gay fan base, and receive an outsized amount of media attention compared the relatively modest audiences they pull in. “The Comeback” may have the measliest ratings among the three, but it also has a fanatically devoted cult following. “Girls” is the highest rated of the three shows. In Lena Dunham it has a standout figure who causes controversy for pretty much everything she says or does. Therefore, she will always attract attention.
And then there is “Looking.” “Looking” is the story of the trials and travails of three gay friends in San Francisco. “Looking” is, like “Queer as Folk” before it, not so much a controversial show among the television-watching community at large, but rather within its target demographic. I have written about The “Looking” Wars at great length before, but the general gist is that the show exposes the fault lines within the gay community (1) as to how its members wish to see themselves represented to the larger society; and (2) as to how the community sees itself in a society where homosexuality becomes ever more normative.
I doubt this season of “Looking” will bring about the hue and cry that met its debut season. My guess is that the show’s defenders will say something briefly in support of the show and continue watching while the show’s critics will say something briefly reaffirming their distaste for the show and then continue ignoring it. (This is a contrast to “Girls,” which is hugely controversial every season.)* Without the controversy (or buzz) that keeps it in the public’s attention, the metrics for success are going to have to change somewhat to earn “Looking” a third season.
Ratings for HBO are not the same as ratings for other networks. Television and cable networks have historically lived and died by the overnight ratings. A show aired once a week, and that was the one time people could watch it. Recording devices changed that a little bit, much to the networks’ and advertisers’ chagrin. The DVD box set changed it even more. The Internet however, is making that model, and indeed television as we know it, obsolete. Nowhere is this more apparent than on HBO. As a subscriber-based network, advertisement revenue means little, and the advent of HBOGo frees subscribers from a weekly schedule. This year HBOGo will begin life as a subscriber-based online service, and customers will no longer need to order HBO for television as a prerequisite.
With the rise of Netflix as a purveyor of quality programming, and Amazon Prime following suit, HBO need not be concerned with ratings so much as prestige. What brings in the money is critical acclaim as viewers will presumably go where the critics (and fellow viewers) lead. It is this world that “Girls” was meant for. Had this world been around in 2005, then perhaps “The Comeback” would have gotten a second season much earlier. And it is this world that “Looking” must find a way to negotiate in this upcoming season if it wishes to have a third. Whether that is by offering a show of tremendous quality ready-made for awards season or creating enough controversy to attract more viewers beyond its current audience, I do not know. I would like to see the show continue; I just hope HBO does too.
* It somewhat astounding to me that the two most polarizing shows on HBO are “Girls” and “Looking.” Contrast that to the network’s most popular program “Game of Thrones,” which routinely features graphic violence, torture, murder, sexual content, and fairly heavy exploitation of the female body. To my recollection however, “Games of Thrones” is rarely controversial, save among fans of A World of Ice and Fire, the series from which the show was adapted. In fact, there is only one moment from the show that stands out in my mind as truly controversial. Last season Jaime Lannister may or may not have raped his sister Cercei in front of the corpse of their dead son. What made that scene controversial however, was not the scene itself, but the tone deafness of the show’s creators. In the series, that moment is one of consensual sex, and the director insisted that he intended for it to be seen as consensual. Watching the show however, one can only come away with thinking that it was a rape scene.
On December 6, the drawing for the group stage of the 2015 Women’s World Cup (or as I like to call it, the World Cup) took place. I’ll spare the suspense, although if you are reading this, you probably already know. Here are the groups:
GROUP A: Canada, China, New Zealand, Netherlands
GROUP B: Germany, Ivory Coast, Norway, Thailand
GROUP C: Japan, Switzerland, Cameroon, Ecuador
GROUP D: United States, Australia, Sweden, Nigeria
GROUP E: Brazil, South Korea, Spain, Costa Rica
GROUP F: France, England, Colombia, Mexico
Two topics have dominated the conversation and no doubt will continue to do so. The first is that
SPECTRE and The Legion of Doom FIFA and the Canadian Soccer Association have decided to use artificial turf pitches, despite the fact that they would never allow that for the Men’s World Cup. The players are trying to fight it, but time is running out. If there is an increase in injuries during the World Cup, watch FIFA try to dodge this debacle too. Is FIFA the most loathsome organization in the world or merely just one of a select few?
The other issue that you will hear about until you are sick of it is the lack of depth in the field. FIFA expanded next year’s tournament from 16 teams to 24. But there is a perceived danger that the depth of quality has been watered down, and we will go back to the days of 6-0, 7,-0, 10-0 scorelines. (This is also a complaint about the expanded 2016 European Championship.) Certainly everyone thought newby Equatorial Guinea would be the recipient of such drubbings during the last World Cup, but that turned out not to be the case. The Equatoguineans’ performance was (admittedly aided by some dubious calls) quite respectable, better than Canada’s even.
Eight nations are making their World Cup debut: Netherlands, Ivory Coast, Thailand, Switzerland, Cameroon, Ecuador, Spain and Costa Rica. Thailand has never qualified for a men’s or women’s World Cup before, so this is truly uncharted territory for them. Most likely they would not have qualified at all had the AFC not been given an additional two slots this year and (more germane) had North Korea not been banned from qualification due to the doping scandal at the last World Cup. The AFC is (unlike in the men’s game) a very strong division in the women’s game with Japan the reigning world champion, China a-once-dangerous-but-now-faded power, Australia and North Korea as perennial dark horses and South Korea as a potential future player. It is hard to see where Thailand will fit into this scheme in the future.
Speaking of North Korea, this is the first competition in God knows how long in which neither Colombia nor North Korea will play the United States in the group stage. In divine retribution, the US will play in Group D, unarguably the toughest group in 2015 World Cup. The US, Sweden, Australia, and Nigeria. The US is the strongest team in this group and should make it through to the next round, but it is not a given. Australia, as I mentioned above, is a perennial dark horse, and probably the second best team in the AFC. Nigeria has never missed a World Cup, is almost always the African champion, and gets better and better every tournament. And then there is Sweden. Last time around Sweden beat the US in the group stage, which to my recollection, is the first group stage loss the US ever suffered. This year the US and Sweden have an even stronger link than mere revenge. Pia Sundhage, the Singing Swede who coached the US to two Olympic golds and World Cup runners-up in 2011, is now coach of Sweden. Sundhage knows all about the US. The US players and staff know all about Sundhage. And of course, it is a grudge match for the US, which no doubt is still angry about four years ago.
If there is a second difficult group in this tournament, it is Group F: France, England, Colombia, and Mexico. What both Group D and Group F have in common is that all eight teams in those two groups have played in World Cups before. (Contrast that to Group C which is Japan and three debutant nations.)
As a US fan, I am hoping that the 2015ers can finally bring the trophy back to the US, but of course the other two major forces of the women’s game, Germany and Japan, stand in the way. Brazil is always a contender, but as Marta gets older and her magic wanes one wonders if Brazil is able to supplement her individual brilliance. France and host Canada are also top seeds hoping to make that breakthrough that has thus far eluded them. Norway will continue its sad, slow decline. For my part, I am really interested in how Spain will do. It their first World Cup and they are led by the magnificent Vero Boquete.
Because the World Cup is still over half a year away, I’m going to gather and save my thoughts for a future dates. But the draw is out, and the excitement has already begun.
WordPress just told me that today is the four year anniversary of this blog’s beginning. Happy anniversary to me.
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.
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.
* 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.