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  So I apologize if by the time this post is uploaded, it is already hopelessly out of date.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

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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.

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Breaking News: Texas Messed With

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

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

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

Stay tuned.

Misreading Windsor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes:  

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

Marriage Momentum: Valentine’s Edition

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

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

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

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

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

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

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

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

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

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

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

Happy Valentine’s Day!

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.

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.

Explain To Me Why I Care…

Prince William got engaged to his girlfriend (Kate?) today.  It’s all over the news, and the media has been asking what her dress will look like, what her  engagement rings looks like, what kind of fairy tale Disney princess wedding she’ll have with carriages, and tiaras, and coachmen who turn into mice after midnight while all throughout the day the sun will shine only on the happy couple.

All the news sources I read are American.  Prince William and his future queen are British.  Americans don’t have princes, and haven’t since 1776.  When a member of the Spanish, Danish, Norwegian, Swedish, Japanese, or Dutch royalty gets engaged, Americans and their media don’t care.  In fact, I’m not even sure Americans and the media can name any Spanish, Danish, Norwegian, Swedish, Japanese, or Dutch.  And this makes sense because we are Americans and not Spanish, Danish, Norwegian, Swedish, Japanese, Dutch.  Or British.  Royalty is an outdated concept, even in these countries.  It is far  more important to know who the actual political leaders of these nations are rather than who sits on ceremonial thrones.  If the Spanish, Danish, Norwegian, Swedish, Japanese, Dutch, and British wish to keep their royalty, that is their business and their culture.  But we in America have replaced that need for royalty with celebrities who are famous for the achievements, their careers, or their money.  I can’t stand them either, but their ours.

This makes me think that this is a story that the media has decided that the public wants to hear rather than a story that the public wants the media to tell.

If the Spanish, Danish, Norwegians, Swedish, Japanese, Dutch, or British hate hearing about our celebrities as much as I hate hearing about British royalty, they should complain about their media.