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!

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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.

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.