Tuesday, January 27, 2015

Alabama Supreme Court Chief Judge Moore: federal courts have no power over state marriage law

In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional.  He writes grounds the sacredness of man-woman marriage in the Bible, and writes

RmooreToday the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!

 He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5  (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.

Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal  law, and gained notoriety as the "the Ten Commandments Judge."  Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.

In 2012, Justice Moore was re-elected to the Alabama Supreme Court as its chief justice after almost a decade out of office during which time he served as "President of the Foundation for Moral Law."

 [UPDATE: A great video produced by Christopher Scott and Mary Baschab, University of Alabama School of Law, Class of 2011 is here].

January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)

Friday, January 23, 2015

Alabama District Judge Declares State's Same-Sex Marriage Bans Unconstitutional

In a ten page Opinion and Order late Friday in Searcy v. Strange, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.

Judge Granade found that Baker v. Nelson (1972) did not operate as a binding precedent. 

She also mentioned that the Eleventh Circuit had not yet ruled on the issue and in footnote 1 acknowledged that the United States Supreme Court had granted certiorari on the issue.

She found that marriage is a fundamental right:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399,  of privacy, Griswold v. Connecticut, 381 U.S. 479 (1965), and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, (1996). “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 851 (1992).

456px-1833_Map_of_Alabama_countiesShe articulated that laws that "implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest."  She considered Alabama's asserted interest of "protecting the ties between children and their biological parents and other biological kin," and concluded that the means chosen - excluding same-sex couples - was not narrowly tailored:

The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states. The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.

Judge Granade continued: "If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children."

Judge Granade's opinion does briefly discuss the equal protection standard for reviewing sexual orientation classifications.  But given her conclusion regarding fundamental right meriting strict scrutiny, the opinion does not contain an extensive or rigorous distinction between the Equal Protection Clause and Due Process Clause analysis. 

Judge Grande's Order ruled on cross motions for summary judgment, enjoined the state from enforcing the same-sex bans, and did not contain a stay.

One would assume that the attorneys for Alabama are drafting their stay petitions.

UPDATE: On Sunday, January 25, 2015, Judge Granade issued her Stay Order granting a stay until February 9, 2015.  The judge found that the State did not warrant a stay under the standards, but

In its discretion, however, the court recognizes the value of allowing the Eleventh Circuit an opportunity to determine whether a stay is appropriate. Accordingly, although no indefinite stay issues today, the court will allow the Attorney General time to present his arguments to the Eleventh Circuit so that the appeals court can decide whether to dissolve or continue the stay pending appeal (assuming there will be an appeal.) The preliminary injunction will be stayed for 14 days.

January 23, 2015 in Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

Supreme Court to Hear Same-Sex Marriage Case This Term

On Friday afternoon, the Court granted certiorari in the Sixth Circuit consolidated cases in DeBoer v. Snyder from the Sixth Circuit. [Recall that a divided Sixth Circuit panel reversed the district court decisions in Kentucky, Michigan, Ohio, and Tennessee].

Here's the Court's grant:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:  1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?  2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

Interestingly, the questions presented use the word "require."  [update: here's Rick Hasen and here's Michael Dorf on that very issue].

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image via donkey hotey

 

The remainder of the Order sets out the briefing schedule and oral argument:

A total of ninety minutes is allotted for oral argument on Question 1.  A total of one hour is allotted for oral argument on Question 2.   The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.  The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015.  The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015.  The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

January 16, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, January 12, 2015

South Dakota Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In her opinion in Rosenbrahn v. Daugaard, Judge Karen Schreier of the District of South Dakota found that the state's statute and constitutional amendment limiting marriage and quasi-marital recognition to "a man and a woman" was unconstitutional.

Judge Schreier's 28 page opinion is well-crafted, succinct yet comprehensive.  It largely rests on marriage as a fundamental right under the due process clause:

Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right. The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right. In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry. Thus, the right at stake is not a new right to same-sex marriage, as defendants contend. Instead, the substantive due process right is the right to marry, which right is fundamental. South Dakota’s marriage laws significantly interfere with this fundamental right by preventing same-sex couples from marrying and refusing to recognize out-of-state same-sex marriages. Because strict scrutiny applies to analyze deprivations of fundamental rights claims, the court will apply strict scrutiny here.

740px-Collier's_1921_South_DakotaIn applying strict scrutiny, Judge Schreier rejected South Dakota’s justifications - - - channeling procreation into marriage and proceeding with caution - - - as compelling, noting that the state seemingly conceded the failure to rise to this level.  As to the caution interest, the judge remarked that if "accepted as a compelling state interest, this justification would support every existing law." Moreover, the denial of same-sex marriage was not narrowly tailored to serve these interests.

In a very brief paragraph, Judge Schreier addressed the equal protection claim, essentially bootstrapping it to the due process claim:  "For reasons stated with respect to plaintiffs’ due process claim, South Dakota’s same-sex marriage ban deprives same-sex citizens of a fundamental right, and that classification is not narrowly tailored to serve a compelling state interest. Thus, South Dakota’s same-sex marriage."

Judge Schreier did issue a stay, however, writing that although the ongoing denial of a constitutional right is an irreparable injury, the lack of an opinion by the Eighth Circuit means that the decision "presents novel and substantial legal questions" warranting a stay.

Yet the legal questions may be growing less and less novel, even if still subject to a circuit split and still awaiting United States Supreme Court review.

 

January 12, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Saturday, January 10, 2015

Ninth Circuit Declines En Banc Review of Same-Sex Marriage Case & Updates

The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.

Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of  SmithKline Beecham Corp. v. Abbott Labs.

365px-Idaho_nedThe Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court  denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.  However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.

Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.

The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."

This judicial restraint v. judicial activism debate is well-worn territory.  And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:

As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.

The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.  

Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional).   The oral arguments are available on the Fifth Circuit's website.

January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

West Virginia District Judge's Extensive "Gag" and Sealing Order in Blankenship Trial

Judge Irene Berger of the Southern District of West Virginia issued a Memorandum Opinion and Order clarifying and amending  but essentially reaffirming her extensive "gag" order in United States v. Blankenship, the criminal prosecution (which some say is unprecedented) of CEO Don Blankenship (pictured below) of Massey Energy for his alleged responsibility for the the Upper Big Branch Mine Disaster.  Recall Blankenship as the outsized contributor to the campaign of Brent Benjamin  for the West Virginia Supreme Court of Appeals; as a Justice Benjamin ruled in a case  involving Massey Coal.  The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal held that the failure of Benjamin to recuse himself violated due process.  The case is the subject of the book The Price of Justice.

Don_Blankenship_Image
Don Blankenship via

To say that Blankenship is controversial - - - given the Upper Big Branch Mine disaster and Caperton with its underlying facts  - - - is probably an understatement. And Judge Berger has a difficult task attempting to protect Blankenship's rights to an impartial jury and fair trial.  But do Judge Berger's orders go too far? 

The objections to Berger's original orders were filed as a motion to intervene by the Wall Street Journal, the Associated Press, Charleston Gazette, National Public Radio, Inc., and the Friends of West Virginia Public Broadcasting, Inc..  Judge Berger allowed the intervention for the limited purpose of challenging the previous orders and found that the press organizations had constitutional standing.

Judge Berger's analysis centered on the classic First Amendment/Sixth Amendment conflict cases of Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976).  From these cases, Judge Berger noted she has

the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors. Courts do not exist or operate in a vacuum. In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.

Judge Berger stressed that the court's order "is not directed toward the press."  Instead, it limits the "parties" from communicating with press (and "only limits the subject matter") and keeps documents filed in the court case sealed.

Yet three questions remain about the orders.

First, the breadth of the "gag" order was challenged.  In addition to the parties, attorneys, and court personnel it includes

potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.

In a footnote, Judge Berger explained the inclusion of "family members":

the order applies only to those who may appear during some stage of the proceedings as parties or as witnesses. Even if not direct witnesses to the alleged offenses, victims and their family members may be witnesses at sentencing or potential beneficiaries of restitution, should the case reach that posture. As such, they are “trial participants.”

Later, she states that allowing " a potential trial participant to speak through his or her family member would eviscerate the protective measures, and is further evidence of the need for the inclusive order."

Yet "family" here could potentially be quite broad, especially in the context of rural West Virginia.

Second, Judge Berger relied on the fact that the docket was available, although not the underlying documents being referenced.  Nevertheless, the new  (Amended) Order released many documents, based on a principle that

any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the [original] order, and should be publicly accessible.

Yet the standard does seem murky, and of course the press will have a difficult time objecting to the non-release of pleadings or other documents.

Third and last, Judge Berger's rejection of change of venue (as well as voir dire) as lesser restrictions of the First Amendment rights of the press (and public) as "not feasible options at this time" is interesting.  Berger outlines the preference for an accused to be tried in the district in which the crime is alleged to have been committed.  She writes that transfer of venue "takes place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district." Thus, she essentially elevates the "right" to be tried in the alleged-crime's district over both the First and Sixth Amendment rights.

Judge Berger has crafted a delicate balance which will most likely need continuing calibration.  Her task to prevent a "Roman holiday" for the media (as the Court said in Sheppard) is not only operative during the pre-trial publicity stange but will undoubtedly be pronounced during the trial itself. 

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Memorial to the miners killed in the Upper Big Branch Mine via

January 8, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Family, First Amendment, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Second Circuit Upholds NY's Vaccination Requirement

In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.

The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law.  Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.

VaccineThe religious exemption is most interesting in the context of this litigation.  For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief."  For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).

The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.

The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated.  For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:

"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.

Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.

[image via]

January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2014

Eleventh Circuit Denies Stay of Same-Sex Marriage Ban Injunction in Florida

In August Judge Robert Hinkle of the Northern District of Florida found in Brenner v. Scott that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes §741.04(1) violated the Fourteenth Amendment. 

Today, an Eleventh Circuit panel consisting of Judges Frank Hull, Charles Wilson, and Aldaberto Jordon in a brief Order in Brenner v. Armstrong granted expedited treatment of a motion to extend the stay of the preliminary injunction, but denied the motion. 

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Elbert P. Tuttle Courthouse in Atlanta


The Order concluded:

The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

Thus, unless there is en banc review or a United States Supreme Court stay, same-sex marriages will begin in Florida in first days of the new year.

December 3, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Montana District Judge Follows Ninth Circuit: Declares State's Same Sex Marriage Ban Unconstitutional

In his 18 page Order in Rolando v. Fox, US District Judge Brian Morris enjoined Montana's laws banning same-sex marriage (Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401) as unconstitutional under the Fourteenth Amendment's Equal Protection Clause.

The judge essentially found that the Ninth Circuit's decision in Latta v. Otter regarding same-sex marriage - - - inclusive of its decision to adhere to heightened scrutiny in SmithKline Beecham Corp. v. Abbott - - - was binding.  The court rejected the argument that the recent Sixth Circuit opinion in DeBoer v. Snyder changed Ninth Circuit precedent.

1024px-Collier's_1921_Montana

The judge, however, did discuss the state's asserted justifications, finding them with without merit and focusing on children.  The judge ended by recognizing "that not everyone will celebrate this outcome," but nevertheless that the "time has come for Montana to follow all the other states within the Ninth Circuit":  "Today Montana becomes the thirty-fourth state to permit same-sex marriage."

The judge did not stay the injunction.

November 20, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Court Vacates Stay of Kansas Same-Sex Marriage Injunction

The Court has issued an Order vacating the temporary stay issued by Justice Sotomayor on Monday of the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.

As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues.

The Order from the Court notes that "Justice Scalia and Justice Thomas would grant the application for stay," but there is no accompanying opinion.

November 13, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2014

South Carolina Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In a 26 page opinion today in Condon v. Haley, Judge Richard Mark Gergel held that South Carolina's same-sex marriage bans (by statute and state constitutional amendment) is unconstitutional.

Here is the gravamen of Judge Gergel's opinion:

This Court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic.

753px-Flag-map_of_South_Carolina.svgRecall that the Fourth Circuit in Bostic v. Schaefer held that Virginia's same-sex marriage laws should be evaluated by strict scrutiny because marriage is a fundamental right; not surprisingly, the bans did not survive the standard.  Recall also that the United States Supreme Court denied certiorari. 

Moreover, Judge Gergel rejected the argument that  "same-sex couples should not look to the courts to protect their individual rights but to the 'usually reliable state democratic processes' for relief" as the Sixth Circuit's very recent opinion upholding state prohibitions of same-sex marriage declared, by noting that the Fourth Circuit rejected this same argument.

Judge Gergel did, however, dismiss Governor Nikki Haley as a defendant.  Judge Gergel noted that "simply being the state's chief executive sworn to uphold the laws is not sufficient" and there is "little evidence to support an argument that Defendant Haley has taken enforcement action or engaged in other affirmative acts to obstruct Plaintiffs' asserted fundamental right to marry. "  Judge Gergel specifically distinguished Bowling v. Pence, in which a federal judge reversed a prior order dismissing the Governor of Indiana as a defendant after he took "affirmative action to enforce the statute."

Judge Gergel issued a temporary stay of the injunction until November 20, 2014.

 

November 12, 2014 in Courts and Judging, Due Process (Substantive), Eleventh Amendment, Equal Protection, Family, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

Sotomayor Stays Kansas Federal Judge's Same Sex Marriage Injunction

In an Order late today, Justice Sotomayor stayed the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.

As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues. 

As is usual, there is no reasoning supporting the Supreme Court stay.  Here's the text of Justice Sotomayor's opinion:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the preliminary injunction entered by the United State District Court for the District of Kansas on November 4, 2014, is hereby stayed pending receipt of a response, due on or before Tuesday, November 11, 2014, by 5 p.m. ET, and further order of the undersigned or of the Court.

Perhaps we can expect another Order from Justice Sotomayor late on Tuesday?

 Justice Sonia Sotomayor by Donkey Hotey
Caricature of Justice Sonia Sotomayor by Donkey Hotey via

 

 UPDATE here.

November 10, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Missouri Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional

A day after the Sixth Circuit's divided decision upholding same-sex marriage bans in several states, and thus creating a circuit split (with the Supreme Court having denied certiorari to the Seventh, Tenth, and Fourth Circuit opinions holding to the contrary), United States District Judge Ortrie D. Smith of Missouri (and in the Eighth Circuit) has rendered an opinion in Lawson v. Kelly, finding Missouri's same-sex marriage ban unconstitutional.

Judge Smith's 18 page opinion agrees with the Sixth Circuit majority in one respect: The Supreme Court's opinion in Windsor v. United States holding DOMA unconstitutional is not dispositive.  However, Judge Smith also states that the Court's 1972  dismissal in Baker v. Nelson is not dispositive. 

721px-Collier's_1921_MissouriJudge Smith holds that under Eighth Circuit precedent, sexual orientation "is not a suspect class and that classifications based on sexual orientation are not subject to heightened review of any kind."  On that basis, he grants judgments on the pleadings to the defendants.

However, Judge Smith holds that the same-sex marriage bans are unconstitutional under the Fourteenth Amendment.  First, Judge Smith concludes that marriage is a fundamental right under the Due Process Clause, even as he notes that not all regulations of marriage are subject to strict scrutiny.  Following Zablocki v. Redhail, however, he applies the "interfere directly and substantially with the right to marry" standard and concludes that the "prohibition must be examined with strict scrutiny, and viewed in that light the restriction fails to satisfy the Due Process Clause’s dictates."

Additionally, Judge Smith analyzes the same-sex marriage ban under the Equal Protection Clause as a classification based on gender:

The restriction on same-sex marriage is a classification based on gender. The State’s “permission to marry” depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State’s permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.

As Judge Smith avers, "Restrictions based on gender are subject to intermediate scrutiny."  He finds the standard is not satisfied:

The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.

Judge Smith therefore concluded that "section 451.022 of the Revised Missouri Statutes and Article I, section 33 of the Missouri Constitution, and any other provision of state law that precludes people from marrying solely because they are of the same gender violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment" and enjoined state officials from declining to issue same-sex marriage licenses although the Judge stayed the "effects of the judgment" until the judgment is final.

 

November 7, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2014

Divided Sixth Circuit Creates Circuit Split in Same-Sex Marriage Litigation

The Sixth Circuit's opinion today in DeBoer v. Snyder upheld the constitutionality of the same-sex marriage bans in several states, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.

The majority opinion, authored by Judge Jeffrey Sutton and joined by Judge Deborah Cook begins by invoking judicial restraint and democratic processes:  "This is a case about change—and how best to handle it under the United States Constitution."   Such an opening may not be surprising given Judge Sutton's published views such as this from a Harvard Law Review piece favoring "a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation."

Dissenting, Judge Martha Craig Daughtrey, begins with a scathing assessment of Judge Sutton's opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.

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For the majority, the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."  The opinion distinguishes Windsor v. United States as limited to the federal government.  The opinion also rejects  the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional: "The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."

The majority also rejects the persuasive value of the opinions from the other circuits, again returning to the judicial restraint perspective:

There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.

In considering rational basis review (under either equal protection or due process), the majority finds that states can rationally incentivize marriage for heterosexual couples who "run the risk of unintended offspring" and that states might rationally chose to "wait and see" before changing the definition of marriage.

In considering animus (which might heighten the rational basis review to rational basis "plus"), the majority distinguishes both City of Cleburne v. Cleburne Living Center and Romer v. Evans, stating that the state-wide initiatives banning same-sex marriage merely "codified a long-existing, widely held social norm already reflected in state law," rather than being novel acts of animus.  Indeed, the majority states

What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to Defend Affirmative Action[BAMN].

Moreover, in another portion of the opinion the majority addresses the possibility of heightened review under the Equal protection Clause based on level of scrutiny to be applied to sexual minorities and invokes Carolene Products.  For the majority, the issue of political power is the key rationale for denying heightened scrutiny:

The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.

And in considering fundamental right to marriage under the Due Process Clause, the majority concluded marriage is not a fundamental right, distinguishing Loving v. Virginia as a case that "addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage."  Moreover, if marriage were a fundamental right, this would call into question laws regarding divorce, polygamy, and age requirements.

The majority also rejects the "right to travel" argument as a rationale for recognizing valid out of state marriages.

Additionally, the majority articulates its constitutional interpretative strategies. In section B, entitled "Original meaning" and in Section G, entitled "Evolving meaning," the majority is very clear that one theory is more consistent with its view of judicial restraint.

The Sixth Circuit - - - as many predicted - - - has now created a split in the circuits on the question of the constitutionality of same-sex marriage bans.  The plaintiffs, who prevailed in the district court cases below, are sure to petition for certiorari to the United States Supreme Court, perhaps bypassing seeking en banc review by the Sixth Circuit.

 

November 6, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 4, 2014

Kansas Federal Judge Holds State's Same-Sex Marriage Bans Unconstitutional

In a 38 page opinion in Marie v. Moser,  Judge Daniel Crabtree held that Kansas' state constitutional provisions and statutes prohibiting same-sex marriages violates the Fourteenth Amendment. 

This is not surprising given the Tenth Circuit's opinions in Bishop v. Smith (finding Oklahoma's same-sex marriage prohibition unconstitutional) and Kitchen v. Herbert  (finding Utah's same-sex marriage prohibition unconstitutional and the United States Supreme Court's denial of certiorari in these cases a month ago.  As Judge Crabtree states: "When the Supreme Court or the Tenth Circuit has established a clear rule of law, our Court must follow it."

800px-Flag-map_of_Kansas.svgBut, although the result may not be surprising, the opinion does have two odd aspects. 

First, why is the opinion 38 pages?  Shouldn't this opinion be more like last month's four page opinion by the Arizona federal judge stating that it is bound by the Circuit opinion?   And indeed, Judge Crabtree's analysis of the Circuit precedent is relatively brief.  However, Judge Crabtree's opinion also contains not only a brief discussion of the parties and the challenged laws, but a careful consideration of a variety of other matters including those related to justicability and jurisdiction:

  • Standing (generally focusing on redressability, but including a claim that because the plaintiffs are a same-sex female couple, they cannot argue the constitutionality of the Kansas laws as applied to same-sex male couples);
  • Eleventh Amendment
  • Domestic Relations Exception to federal court jurisdiction
  • Absention (including Pullman, Younger, Colorado River, Burford, Rooker-Feldman)

Additionally, Judge Crabtree considered an argument that the correct precedent was not the Tenth Circuit opinion, but a Kansas state court opinion (to which the United States Supreme Court denied certiorari).

Judge Crabtree rejected all of these arguments, but in a careful and considered manner.

Second, why did Judge Crabtree grant a stay to the defendants?  Judge Crabtree's answer is related to the length of the opinion.  He states that although

the Tenth Circuit has settled the substance of the constitutional challenge plaintiffs’ motion presents.  And under the Circuit’s decisions, Kansas law is encroaching on plaintiffs constitutional rights. But defendants’ arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations. On balance, the Court concludes that a short-term stay is the safer and wiser course.

Thus Judge Crabtree stayed the injunction until November 11, unless the defendants inform the court they will not appeal.  Perhaps the state officials in Kansas will conclude that it would be a waste of taxpayers' money as did the state officials in Arizona.  Or perhaps not. 

November 4, 2014 in Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Federal Judge in Puerto Rico Dismisses Challenge to Same-Sex Marriage Ban

In his  opinion in Conde-Vidal v. Garcia-Padilla, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals."

In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."  For Judge Perez-Gimenez, this dismissal remains binding precedent for several reasons.  Judge Perez-Gimenez finds that Baker remains good law despite the "nebulous 'doctrinal developments" since 1972.  He rejects the precedential value of Windsor v. United States in this regard: "Windsor does not - - - and cannot - - - change things."  He acknowledges and cites authority to the contrary, but finds it unpersuasive.  He specifically rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional in light of the more solid precedent of Baker v. Nelson. 

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Judge Perez-Gimenez also grounds his adherence to Baker v. Nelson on the First Circuit's opinion in Massachusetts v. HHS, finding DOMA unconstitutional.  The First Circuit's discussion of Baker v. Nelson is somewhat unclear, but Judge Perez-Gimenez rejects the argument that they are dicta and further reasons even if the statements are dicta, "they would remain persuasive authority, and as such, further support the Court's independent conclusions about, and the impact of subsequent decisions on, Baker."

Judge Perez-Gimenez articulates a perspective of judicial restraint, articulating deference to the democtratic institutions of Puerto Rico and adherence to stare decisis.  But in the opinion's conclusion, he makes his own views clear:

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? *** It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Undoubtedly, this issue is on its way to the First Circuit.  The states in the First Circuit - - - Rhode Island, Massachusetts, New Hampshire, and Maine - - - all have same-sex marriage without federal court decisions, so this decision from the District of Puerto Rico will provide the First Circuit the opportunity to reconsider Baker v. Nelson and the applicability of its DOMA decision, Massachusetts v. Gill.

Although perhaps the challengers to the same-sex and "transsexual" marriages might seek to have the issue decided by the Puerto Rican Supreme Court.

October 22, 2014 in Due Process (Substantive), Equal Protection, Family, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Friday, October 17, 2014

Arizona Federal Judge Holds State's Same-Sex Marriage Ban Unconstitutional

Judge John Sedwick's  opinion in Connolly v. Jeanes is a mere four pages, noting that the requirement of  a "lengthy and detailed opinion" is now obviated because as the district court is bound by the Ninth Circuit's opinion in Latta v. Otter.  As to a stay, an "appeal to the Ninth Circuit would be futile" and given the Supreme Court's denial of petitions for writs of certiorari, it is "also clear" that the "High Court will turn a deaf ear on any request for relief from the Ninth Circuit's decision." 

Despite the recent activity by Justice Kennedy including the stay and modified stay and vacated stay of the Ninth Circuit's decision, the Attorney General Tom Horne (pictured) agreed in a statement (video here) and cited his ethical duties under Rule 11 and not to "waste the taxpayers' money."  He issued a  letter to the clerks "effective immediately." 

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October 17, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Alaska Same-Sex Marriage: Court Declares Same-Sex Marriage Ban Unconstitutional

On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an  opinion in Hamby v. Parnell  and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages. 

800px-AlaskaMap1895Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation.  Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry." 

In the Due Process discussion,  Judge Burgess has an interesting invocation of originalism:

In Lawrence  [v. Texas],  the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick]  is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they “fail[] to appreciate the extent of the liberty at stake.”

Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted “the components of liberty in its manifold possibilities” as we see today. As the Supreme Court articulately explained, “those who drew and ratified the Due Process Clause[]...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.

 Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision."  This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion. 

But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labsdecided 10 months ago and which was denied a rehearing en banc. 

And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.

Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon."  Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional.  As Alaska argues:

The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.

Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.

 

October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Update: Justice Kennedy Kennedy Vacates Previous Stay Orders on Ninth Circuit Same-Sex Marriage Case

Updated:

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

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Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 And on Friday, October 10, Justice Kennedy issued an Order denying the stay and vacating his previous orders.  Here's the text:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

 

October 10, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Supreme Court Justice Anthony Kennedy Stays Mandate of Ninth Circuit in Same-Sex Marriage Case

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

kennedy
Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 Further updated on October 10 here.

October 8, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)