Supreme Court Finally Grants Cert To Marriage Equality Cases

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.

 Footnotes:

*  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.

Circuit Party

This is a post I have wanted to write for almost a week.  The problem is that every day has brought some new and exciting marriage equality drama, which completely changed my intended reflection.  My hope was that today, Sunday, would be a day off.  But then about two hours ago, a federal judge in Alaska struck down that state’s ban on same-sex marriage.  So I apologize if by the time this post is uploaded, it is already hopelessly out of date.

Marriage equality has moved very quickly since the Windsor decision.  The past week may have been the quickest it has moved.  A quick trip to Wikipedia is helpful.  Here is the status of same-sex marriage in the United States a week ago.

Oct 5 Map

Here it is now.

Oct 12 Map

(Here is a description for colors.  One thing to note though is that in the previous map, Nevada, Colorado, and Wisconsin allowed only civil unions or registered partnerships to same-sex couples.  As of this week that is no longer the case for any US state.)

This is one week.

Currently, every state with a ban on same-sex marriage is either defending the ban in federal court or has given up and started allowing gay and lesbian couples to wed.  With the exception of one poorly reasoned case out of Louisiana, all of those cases decided in federal courts have been wins for marriage equality.  To date, five Circuit Courts of Appeals, the 4th, 6th, 7th, 9th, and 10th, have heard marriage equality arguments.  Prior to last week, three of those Courts–the 4th, 7th, and 10th–issued decisions.  Those decisions struck down bans in five states (Utah, Oklahoma, Indiana, Wisconsin, and Virginia).  All were appealed to the Supreme Court.

On October 6, 2014, the Supreme Court denied certiorari (i.e., declined to review) to all of those cases.  There was no explanation, nor was their any public dissent.  No one outside of the Justices’ chambers knows the reasons review was denied, but the one guarantee is that fewer than four Justices wanted to hear those cases.  (It takes votes from four Justices to grant certiorari).

The Supreme Court’s action was, to say the least, unexpected.  Matters of tremendous constitutional import in which state constitutional bans are struck down by the handful are the type that one generally expects the Supreme Court to hear.  (Although no equivalent issue actually comes to mind.)  Furthermore, the Court was under no immediate deadline as to whether to grant or deny certiorari.  Therefore, it is all the more surprising that the denials in all the cases–there were seven in all–were handed down the first day of the 2014-15 term.  The implications were hugely significant in both a tangible and symbolic way.  Tangibly, by denying reviewing, the Justices left in place the decisions of the 4th, 7th, and 10th Circuits.  All five states’ bans are effectively null, and marriage licenses (or recognition of a marriage performed in another state) must be extended to same-sex couples.  The Circuits Courts’ decisions had been on hold pending Supreme Court review, but now they were full force.  Almost immediately (literally a matter of hours in some cases), all five states began issuing marriage licenses to same-sex couples.

The story however, does not end there.  In the 4th and 10th Circuits, there are other states with similar bans on same-sex marriages.  The Supreme Court’s denial of review spelled the end to other state bans.  This is because–in the absence of Supreme Court guidance–in matters of federal law, states are governed by the law of their assigned Circuit Court of Appeals.  The 4th Circuit Court of Appeals struck down Virginia’s ban on same-sex marriage as unconstitutional, and that is the law for the entire 4th Circuit, which includes North Carolina, South Carolina, and West Virginia.  Because the bans of Utah and Oklahoma were declared unconstitutional by the 10th Circuit, the same applies to Kansas, Wyoming, and Colorado.*

Colorado immediately gave up the fight, and West Virginia did too a few days later.  North Carolina’s executive branch effectively gave up as well, although some legislators are still fighting it.  On Friday October 10th, a federal district court judge denied them relief and counties in North Carolina have begun issuing marriage licenses to same-sex couples.  Despite resistance in South Carolina, Wyoming, and Kansas, it only a matter of time, and marriage equality will come to those states sooner rather than later.

~*~*~*~*~*~*~

Left alone that would be a dramatic enough situation, but the day after the Supreme Court denied certiorari, the 9th Circuit Court of Appeals–a court incapable of acting without drama–issued its own marriage equality opinion striking down same-sex marriage bans in Idaho and Nevada.  The 9th Circuit has a well-earned reputation as the most liberal circuit in the country even as the Supreme Court becomes ever more conservative.  Certain Justices even appear to believe that being overturned on appeal by the Supreme Court is a badge of honor.  One of those judges, Stephen Reinhardt, wrote the opinion in the Idaho and Nevada cases.

Because the 9th Circuit law is very progressive on LGBT issues, Nevada’s state government declined to defend the ban on appeal to the Ninth Circuit.**  Idaho’s governor, Butch Otter, was quite adamant about defending the law, and asked the Supreme Court to stay the 9th Circuit’s opinion until it could review.

Here is where things gets very complicated.  Every Supreme Court Justice supervises one or more of the 13 federal Circuit Courts of Appeals.  This meant much more back in the early circuit riding days before the federal Courts of Appeals were created.  The Justice in his or her supervisory role as Circuit Justice may “stay” (put on hold) decisions of the Circuit Court.  Sometimes the Justice acts alone and sometimes he or she asks the full Court for a vote.  Anthony Kennedy, the author of the Windsor decision, is the Circuit Justice for the 9th.  Therefore, Idaho appealed to Justice Kennedy.  Justice Kennedy agreed to stay the decisions in both Idaho and Nevada, confusing everybody because Nevada did not actually ask for a stay (or want one), and Idaho could not–and did not–ask on Nevada’s behalf.  Kennedy lifted the stay on Nevada within a few hours, but a citizen group that had defended Nevada’s ban on appeal requested the stay be reinstated.  The problem is that the citizen group has no standing to appeal to the Supreme Court because of the Prop 8 decision from 2013.  Very shortly afterwards, the citizen group gave up, and now Las Vegas Elvis impersonators may officiate at same-sex weddings as well.

The mistakenly granted stay was a clerical embarrassment, but easily forgotten as these things happen.  What was truly shocking was that Justice Kennedy, after referring the matter to the whole Court, eventually lifted the stay in Idaho as well.  The strong implication of this is that the Supreme Court would deny review Idaho’s case as well.  Governor Otter gave up, and no doubt same-sex couples in Idaho will be able to marry as soon as tomorrow.  Keep in mind, it was the Supreme Court that began issuing the stays (in the Utah case after both the District Court and the 10th Circuit would not).  The rest of the federal courts simply followed what they believed the Supreme Court wanted.

The Ninth Circuit, is the largest Circuit Court in the country and encompasses the most states (and Guam and the Northern Mariana Islands).  In addition to Idaho, Nevada, and the states that already had marriage equality–California, Washington, Oregon, and Hawaii–the Ninth Circuit also presides over Alaska, Montana, and Arizona, states which all have bans.  As I mentioned above, Alaska’s ban was struck down as I was writing this post.  The bans in Montana and Arizona may have fallen by the time you have finished reading this.

At this point, 30 states in this country now have marriage equality, and presumably another five will join those ranks when the errant children in the 4th, 9th, and 10th Circuits are brought into line.  Thus, all eyes turn to the only Circuit Court that has heard a marriage equality case, but still has a decision outstanding–the 6th Circuit.  Reports from oral argument suggest that two of three judges on the panel seemed likely to uphold the marriage bans.

Let me say at the outset, I have no connection whatsoever with the 6th Circuit, or with any of the Circuit Courts of Appeals.  Therefore the speculation is entirely my own.  I believe that 6th Circuit (which, if I am not mistaken, held oral argument before both the 9th and the 7th Circuits) had a decision ready to uphold the bans.  However, the judges did not want to release the decision once certiorari petition arrived at the Supreme Court, and the Justices began looking at them.  I believe that the judges on the 9th Circuit did the same thing.  Why bother making a decision if the Supreme Court will make one this term, especially if that decision overturns the one you make?  Most judges hate being overturned by a higher court.

I believe that both the 6th and 9th Circuits planned on withholding their decisions until the Supreme Court granted certiorari.  That would allow for both Circuit Courts to issue stays on their opinions pending Supreme Court review.  In this way, they would the follow the Supreme Court’s guidance and not be overturned.  But then the Supreme Court did the unthinkable and denied certiorari.  Although such denials have no value as legal precedent, in this case, it sent out a strong message that the 4th, 7th, and 10th Circuits did the right thing by striking down the bans.  Furthermore, while at the University of Minnesota Law School, Justice Ruth Bader Ginsburg practically dared the 6th Circuit to uphold the bans, implying that the Supreme Court would take a marriage case only if a Circuit Court deviated from the others.  My theory is that the judges on the 6th Circuit have been busy rewriting the case, changing the disposition from one that upheld the bans to one striking them down.  Therefore, the panel may avoid the wrath of the Supreme Court Justices, who clearly do not want to deal with another marriage case this soon.*** [Edit: Well, that was wrong.]

Three other Circuit Courts, the 5th, the 8th, and the 11th, also have cases working their way through the system.  The 5th Circuit, possibly the most conservative in the country, is next after having fast-tracked and joined together cases in Texas and Louisiana.  The 8th and the 11th Circuits will be equally as fascinating, particularly the former which previously issued a pro-marriage ban decision, but that was pre-Windsor.  The circuit party is well underway.  Stay tuned, there’s plenty more to come.

Footnotes:

* Maryland in the 4th Circuit, New Mexico in the 10th Circuit, and Illinois in the 7th Circuit already had laws extending marriage licenses and recognition to same-sex couples and are therefore not affected by the Circuit Courts’ decisions.

** The Nevada case, Sevcik v. Sandoval, was actually a victory for the state at trial.  Sevcik was argued and a decision issued prior to the Windsor decision.  This past week, the trial judge, whose opinion in Sevcik was nothing short of insulting toward gays and lesbians, recused himself from taking further part in the case, and thereby did not have to issue an order compelling Nevada to allow same-sex marriages.

***  Spare a thought for poor Judge Jeffrey Sutton.  He is a strong favorite for the Supreme Court the next time a Republican wins the Presidency, but now he is in a really awkward position.  If he strikes down marriage bans, he will anger his more ardent supporters who are uncompromising and already angry with him (he upheld the Affordable Care Act).  On the other hand, if he votes to uphold the bans–particularly in the face of strong evidence that the Supreme Court really, really, wants those bans to be struck down–not only will he be remembered as a villain by history, if he should ever be nominated to the Supreme Court, he will also be remembered by a strong opposition who will tar him as homophobic and unfit to serve.

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.