Sweet Home Alabama

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!

Footnotes: 

* 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.

And Utah Makes 18. Wait… What?!?

Yesterday as I was leaving the gym, I received a phone call from my boyfriend (herein “BF”) which, to the best of my recollection, went as such:

Me:  Hello.

BF: Have you heard the good news out of Utah?

Me (not understanding what possible good news could come out of Utah):  What good news?

BF: A judge struck down their marriage ban.

Me:  Holy [expletive]!  What?!?

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Yesterday, Judge Robert J. Shelby, a federal trial judge in Utah, struck down that state’s constitutional amendment banning marriage.  The opinion in Kitchen v. Herbert is nice to read, in no small part due to the many judicial raspberries blown in the direction of Supreme Court Justice Antonin Scalia, whose shrill dissents in Romer, Lawrence, and Windsor, belie his own deeply felt homophobia.

It is important to recognize that this is the continued aftereffects of Windsor.  I say it a lot, and I mean it every time.  This is the most important American civil rights case since Brown v. Board of Education, and the ramifications are just beginning to be felt.

The decision went into effect immediately as the Court did not issue a stay.  As such most counties began to issue marriage licenses right away.  The state is asking the Tenth Circuit Court of Appeals for an emergency stay, but by this point a number of same-sex couples have already gotten married.  Should a stay be granted (or even if it is not), the events of yesterday create several questions in the immediate future.  How will Utah process legal same-sex marriages from other states?  Will the federal government recognize these new Utah marriages without Supreme Court imprimatur?  If so, will it continue to recognize these marriages should the Tenth Circuit either (a) issues a stay or (b) overturn Judge Shelby’s opinion?  Would those marriages even be legal if the opinion is overturned?  Is it possible that the federal government will recognize these marriages as valid next year and not the year afterwards?  If so, would that mean for taxes, health insurance, immigration rights, etc.?  Would a green card that was issued for a same-sex spouse be cancelled?

I ask these questions because most of the press coverage I have seen has focused on the momentousness of the occasion (Utah?!?!) rather than the practicalities of the case.  Which in a way is great because it gives me something fresh to write about.  And there is a lot to write about.  Kitchen v. Herbert, which will be Herbert v. Kitchen in the Tenth Circuit, is an extremely important case for a single, solitary, simple reason.  It is the first federal case post-Windsor to strike down a state ban on marriage equality.  Not the first ever, of course.  Concurrent with Windsor was the Prop 8 case, Hollingsworth v. Perry.  The difference between Kitchen and Perry is that the California state government refused to defend the case, and thus the Supreme Court could dodge Perry‘s central issue–the constitutionality of same-sex marriage bans–in favor of standing.  Utah’s state government will defend this to the end, which means Kitchen‘s final destination is most likely the Supreme Court.  I suspect that it will be before the Supreme Court in the 2014-15 term; mark your calendars.

The Kitchen decision came down quickly because it was a grant of a motion for summary judgment for the gay and lesbian plaintiffs.  If you have been reading this blog, this might sound familiar.  It should.  A few months ago, a trial judge in New Jersey also granted summary judgment and ordered the state to issue marriage licenses to same-sex couples.  She too refused to stay her decision.  The Christie Administration’s appeal of the denial of stay resulted in an epic judicial smack down from state Supreme Court.  Officially the Supreme Court did not reach the merits of the case (whether New Jersey law required complete marriage equality).  Nevertheless, a unanimous Court told the Administration that they would lose and lose big.  The Administration withdrew the appeal.

I said it then, and I will say it now.  Granting a motion for summary judgment is a big deal because it means denying one side the right to a trial.  Summary judgment effectively means that the case is so one-sided, a trial is a waste of resources.  The fact that a state constitutional amendment (passed by popular referendum no less) was struck down through summary judgment is particularly shocking.  Even the Prop 8 case went to trial.  But in a post-Windsor world, everything has changed.  (I should note though, that there will be trials coming up, including one in Michigan where summary judgment was denied.)

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The actual legal reasoning in the case is quite strong, although I would have preferred a better Equal Protection ruling (“rational basis with bite” needs to be retired to the Constitutional Law dustbin), but at least there was an Equal Protection ruling in favor of the plaintiffs.  Mark Joseph Stern noted on Slate that the ruling out of New Mexico from the day before is much stronger, although that one was based on state law.

The real meat of the Kitchen decision comes from the Due Process analysis, which is a consideration of the right to marriage.  As such Loving v. Virginia, the aptly-monikered case that struck down bans on interracial marriage, is the controlling precedent.  The Court swept aside (finally) Baker v. Nelson from the 1970’s.  Given all the changes in the laws since Baker, it is amazing to me that anyone would still think that case is good precedent.

One by one, Judge Shelby shot down all of the state’s arguments.  Same-sex couples are not seeking a new right; marriage is not just about controlling procreation; tradition is not a good enough reason to deny a fundamental, individual right; marriage equality will not harm children and it will not stop heterosexual couples from marrying.  The parade of horribles marched past an unreceptive crowd.

Two days ago, I indicated that it was time for the federal courts to get involved.  I had no idea though that just one day later a federal court would strike down one of the most ardently anti-equality amendments in one of the most staunchly conservative states.  This is the beginning of the flood.  From here on in, the federal courts will strike down these marriage bans one by one, until Windor‘s implicit promise, full marriage equality, is granted by the Supreme Court.

17 And DC

As of today, New Mexico has marriage equality thanks to its (unanimous) state Supreme Court.  Previously, New Mexico, thanks to a divided legislature, had no laws whatsoever about marriage equality.  That made New Mexico unique in the country.

This decision was not entirely unexpected.  Oral argument suggested which way the Justices were leaning and an earlier decision against a (I think) photographer who refused to photograph a ceremony for a same-sex couple was a tacit acknowledgement that the Court believed in protecting the rights of New Mexico’s LGBT minority.  It is also important to remember that it was the county clerks who forced this case in the first place.

It is important to recognize that this case is yet another direct result of Windsor–and yet another example proving that Windsor is perhaps the second most important civil rights case in US history after Brown v. Board of Education.  Once the US Supreme Court handed down Windsor, the clerk of Santa Ana county began issuing marriage licenses.  Other clerks followed suit (either based their own interpretation or by court order).  All the clerks asked the state Supreme Court for review.

Prior to November 2012, six states (and DC) offered marriage equality to same-sex couples.  Now there are 17.

In truth, it only gets harder from here.  Most of the remaining states have a constitutional amendment of some kind banning marriage equality.  Only Pennsylvania, Wyoming, West Virginia, and Indiana have laws rather than constitutional amendments that ban same-sex marriage and none of those states would make for an easy legislative victory.  (In Indiana, activists have their hands full trying to prevent a constitutional amendment to ban same-sex marriage.)  Oregon has a ballot initiative next May to overturn its amendment, but for the most part now it is time for the federal courts to get involved.

It is also important to recognize that 21 states (and DC) offer marriage, civil unions, or domestic partnerships to same-sex couples.  As the federal courts decide these cases, that number will grow.  Those who oppose marriage equality no longer have federal legislative options at their command thanks to Windsor.  Which means that to stop same-sex marriages federally, they need two-thirds of both Houses of Congress and three-quarters of the states to adopt it.  That ship has sailed.  New Mexico is the latest proof.

SYMBOLISM!!!!

Today, Illinois Governor Patrick Quinn will sign the marriage equality bill passed (finally!) by the Illinois General Assembly.  In case you weren’t aware, the bill will be signed 150 years (seven score and ten) and a day after Abraham Lincoln, the first President from Illinois, delivered his famous Gettysburg Address.  The bill will be signed at the desk where Lincoln wrote his first inaugural address.  Quinn’s signature will make Illinois the 16th state to embrace marriage equality, and guess who was the 16th President.

Never let anyone tell you this is not a big deal.

Marriage Equality Comes To New Jersey

[Editor’s Note: This post was written on October 18th, but posted on October 19th.  Every time I say “Today” it refers to the date of writing rather than publication.]

Today the New Jersey Supreme Court handed down an opinion denying a stay in a case called Garden State Equality v. Dow.  This is the first major state high court decision to come down following the US Supreme Court’s Windsor decision.  Not to toot my own horn, but for months I had been telling anyone who would listen exactly how Garden State Equality would be decided and that marriage equality was inevitable.  Even though the case is technically ongoing, today’s decision proves me right.

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To understand Garden State Equality, one must first go back to 2006 and a New Jersey Supreme Court case called Lewis v. Harris, the first time the Court considered marriage equality.  Lewis was both a landmark and a disappointment.  It was a disappointment because the Court, in a 4-3 split, held that although the New Jersey State Constitution required that same-sex couples be treated equal to heterosexual couples, it was the Legislature’s discretion to determine whether that meant marriages or civil unions.  The Legislature opted for the latter.  Yet Lewis was also a landmark because for the first time every Justice on a state high court agreed that same-sex couples deserved equal treatment.  The “dissenters” would have gone further than the majority and mandated full marriage equality.

Lewis, for its flaws, laid the groundwork for future victory.  Civil unions are okay so long as couples are treated equally, but if that were not the case, then the state had to offer marriage.  Almost immediately after Lewis was handed down, LGBT rights groups operating in New Jersey (Garden State Equality, Lambda Legal, etc.) started gathering evidence to prove that civil unions were not equal.  Simultaneously, LGBT organizations lobbied the Legislature to enact a real marriage equality law–first unsuccessfully in the waning days of the Corzine regime and then successfully during this current term, but vetoed by the Governor Chris Christie.   This meant that there were two options left for LGBT rights groups: (1) get enough votes to overturn Christie’s veto (currently ongoing); or (2) convince the New Jersey Supreme Court that civil unions are inherently unequal (or to quote Justice Ruth Bader Ginsburg, “Skim-Milk Marriage“).  Both of those paths however, would take a lot of time and effort, and neither was guaranteed.

And then came Windsor.

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In the near future, I hope to write two posts about the recent gains of the gay rights movement.  The first is about the almost unrealistic nationwide and worldwide progress made in the past year.  The second is specifically about United States v. Windsor, a case that I would argue is not only the most important case in the history of the American LGBT rights movement, but also the most important American civil rights case since Brown v. Board of Education.  The implications of Windsor have only begun to be felt, but its impact has already been tremendous.  The decision in New Jersey today (and others that will follow in state and federal courts over the next couple of years) is solely because of Windsor.  It is not a stretch to say that Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and above all Anthony Kennedy are five of the six people most directly responsible for today’s victory.

The sixth person most directly responsible is Barack Obama.  When Windsor was handed down, Obama ordered all federal agencies to fully comply.  Every same-sex married couple is now treated equally in terms of federal benefits so long as the marriage is valid, i.e., recognized by the state where the marriage took place.  Social security, Medicare, immigration, military and veterans benefits, family medical leave, federal estate tax, joint filing, health insurance for spouses of federal employees–the list of federal benefits goes on and on.

President Obama also made a tremendous and specific impact in New Jersey because he instructed that federal benefits applied only to married couples, not those partnered in civil unions.  Those of us who understood what he was doing rejoiced.  Effectively, he told the courts that in terms of marriage he would not allow or accept “separate but equal.”*  Marriage is marriage and nothing else is adequate for federal purposes.**

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When Garden State Equality came before Judge Mary Jacobson in the New Jersey Superior Court this summer, the legal team for the plaintiffs filed a motion for summary judgment.  Basically, this means that (in a civil trial) one party in the case believes the law and the facts are so overwhelmingly on his/her/their side as to render a trial completely unnecessary.  In Garden State Equality, the plaintiffs argued that the lack of federal benefits to partners in civil unions meant that they would be treated patently unequal and only by offering full marriage equality could New Jersey correct the harm.  Although everyone files motions for summary judgment, granting them, especially in such major cases, is a rarity.  It is practically an invitation for an appellate court to overturn to overturn a trial court, something trial court judges hate.  (Also, judges tend to believe that everyone has a right to argue their day in court.)

Garden State Equality is as close to a perfect case as you can get for granting a motion for summary judgment.  Because of the Lewis demand for equality, the Windsor requirement that the federal government recognize married same-sex couples,*** and the Obama Administration’s refusal to treat marriages and civil unions equally, it was unthinkable that this case could result in anything other than a win for the plaintiffs.  On September 27, 2013, Judge Jacobson granted the motion for summary judgment and held that New Jersey had to offer marriage equality as of October 21.  The Christie Administration asked for a stay in judgment–asked the court to put the decision on hold until the case worked its way through the appellate courts.  Judge Jacobson refused.  Rather than appeal to the next level, the Christie Administration went straight to the top and appealed directly to the State Supreme Court who agreed to hear the case in January.  The Christie Administration also asked the Court for an emergency stay in judgement.  It was not so unusual–or unreasonable–a request.  (For example, in the Prop 8 case, the Court of Appeals put a stay on the trial court’s decision to strike down the law so that it could be litigated up to the US Supreme Court.)

Today the State Supreme Court came down with a ruling, and it was a doozy.  The Court denied the Christie Administration’s request for a stay, which means that same-sex marriages start at 12:01 a.m on October 21 (and there will be City Halls open at 12:01 a.m.)  Frankly, I was a bit surprised; granting a stay is almost routine–again, especially in such a major case with such big implications.  What is more amazing though is that the judicial opinion written by Chief Justice Stuart Rabner, and joined in full by the entire Court, was a decision on the merits of the case, which is almost never done when deciding whether to grant a stay.  Moreover, the Court all but said how it was planning to rule in January: “[T]he State has not shown a reasonable probability that it will succeed on the merits.”  In other words, although the case is not officially over, it’s over.

Everyone knows that the case is over.  Even Chris Christie, rather than fume and rage, has simply said that he disagrees with the decision but has ordered state officials to comply.  The outcome was inevitable.  Windsor made it so, and sooner rather than later all states will have marriage equality.

[Postscript: On Monday October 21, Governor Christie advised the State to withdraw its appeal.  It is theoretically possible but doubtful that a third-party will be allowed to intervene.  Therefore, most likely there will not be an oral argument in January, and undoubtedly marriage equality is now the law of New Jersey from here on out. ]

Footnotes:

* This was not a surprising position from the President.  During the Windsor/Prop 8 arguments, the Justice Department urged the Supreme Court to rule that civil union states must adopt marriage–the so-called “Eight State Solution” (which will dwindle to six as of Monday).  Allegedly, the President was involved in crafting the Eight-State Solution.

** There was an argument put forward that civil unions are a form a marriage and the federal government should recognize them as such.  It’s a rational argument legally but deeply problematic in real world application.  Among those problems is, who would defend civil unions before a court?  A Democrat-led state government won’t do it because they favor marriage equality (the same is true for the vast majority of same-sex couples), and a Republican-led state government won’t do it because that would be a defense of the rights of gays and lesbians.  Although the Christie Administration did argue this position before the New Jersey courts, those courts cannot force the federal government to comply with New Jersey law.  Had the Christie Administration sued the federal government in federal court to demand recognition of civil unions, then I am certain the state case would have been put on hold until the federal case was decided.  It’s a moot point now for New Jersey, but I suspect other courts looking at civil union claims will see that New Jersey’s Supreme Court made the distinction and will subsequently follow.

*** In Windsor, the Supreme Court did not address civil unions because that was not part of the case.  Nevertheless, reading between the lines of the majority opinion, one gets the sense that the majority, if faced with the question, would not find civil unions equal to marriage.

Following The Supreme Court Decision In The DOMA And Prop 8 Decisions

Hopefully I can write a more thorough post after reading this opinions in full, but for now.  
 
1. The federal government has to recognize all same-sex marriages in states that offer them.
2. This means the immigration bill is by default going to have to recognize these couples.
3. It also means gay couples in the states that offer same-sex marriages have all the federal rights and responsibilities of marriage (including joint taxes).
4. Those states that currently offer marriage to same-sex couples are Massachusetts, Connecticut, Iowa, New York, Vermont, New Hampshire, Washington, Maryland, Maine, the District of Columbia.
5. And within the next few months this list will include Minnesota, Delaware, and Rhode Island…
6. And California.

DOMA And The Federal Courts

First an apology.  It has been a month since I last posted anything, but I have a full-time job now, and therefore my time for writing is limited.

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The odious Defense of Marriage Act may well be on its last legs.  This past Thursday, the Second Circuit Court of Appeals (the one that includes New York) declared DOMA unconstitutional in Windsor v. United States.  Search far and wide, and you will not find a more compelling story than Edie Windsor’s (seriously, have a look), who was with her partner Thea Spyer for 44 years.  They married in Canada in 2007 and that marriage was recognized by their home state, New York (which now has same-sex marriage).  When Spyer died, Windsor was burdened with a tremendous federal tax burden on the couple’s estate–something like $350,000.  Had Spyer and Windsor been a married heterosexual couple rather than a married lesbian couple, no federal taxes would have been assessed.  However, Section 3 of DOMA prevents the federal government from recognizing same-sex marriages performed by any state.  Therefore federal tax law considered Windsor and Spyer merely roommates.

The Second Circuit in the strongest possible language, struck down DOMA.  This is not completely surprising, even though the judge writing the decision, Dennis Jacobs, was appointed by George Bush 41 and would never be mistaken for a judicial liberal.  No federal court that has heard a Section 3 case has found in favor of the government (all the more so since President Obama’s Justice Department refused to defend it on the grounds that DOMA is unconstitutional), and the cases have been coming from all sides.  This is due both to the sympathetic plaintiffs and the fact that DOMA should be as unpalatable to judicial conservatives for its abrogation of longstanding principles of federalism as it is to judicial liberals for its treatment of gays and lesbians.

The real surprise of Windsor though was that the Second Circuit in no uncertain terms stated that gays and lesbians are a protected class and that laws that are discriminatory against gays and lesbians merit a heightened judicial review.  In other words, the government cannot make up any reason that sounds rational in order to defend the law.  It has to be the real reason behind the law, and if either the motive for passage or the outcome after passage is discriminatory in nature, then there has to be a really good reason to explain that discrimination.  Since there is almost never a good reason, laws that face heightened scrutiny are almost always struck down.  The actual level of review applied by the Second Circuit was the so-called “intermediate scrutiny” which is the standard used for gender discrimination cases.  This is the level that the Justice Department also suggests for review.*

No federal court of appeals had ever definitively held that gays and lesbians are a protected class.  The Ninth Circuit danced around the issue a few years ago in a DOMA case and again in the Prop 8 case.  Earlier this year the First Circuit also struck down DOMA, but declined to apply heightened scrutiny.  Even the Prop 8 district court case, presided over by a gay man, evaded the issue of heightened scrutiny.  The Second Circuit opinion does not pull any punches though.

So next stop, the Supreme Court.  Right now a bunch of DOMA cases are working their way through the federal court system.  The LGBT right advocates have won all their cases thus far, but the big test is the Supreme Court.  And the Court pretty much has to take it.  A federal law was struck down, and a new suspect class was created.  Let’s hope the streak can continue.  The wind is at our backs right now, although nothing is certain until the Supreme Court has its say.

Footnotes:

*  It is not however, the most searching level of review.  That is called “strict scrutiny” and is primarily reserved for cases involving race.  This is really just a matter of semantics though; effectively when a law is faced with a heightened scrutiny review, it will be struck down regardless of whether a court claims to use either strict scrutiny or intermediate scrutiny.