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." 

TomHorne_PenOfcDesk-3

 

 

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?

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.

 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)

Tuesday, October 7, 2014

Ninth Circuit Declares Idaho and Nevada Same-Sex Marriage Bans Unconstitutional

The Ninth Circuit has issued its opinion in Latta v. Otter (and Sevick v. Sandoval) holding that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.

This is not surprising given yesterday's denial of certiorari by the United States Supreme Court to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.

9thCircuitThe unanimous 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.

The court rejected the argument that the same-sex banning marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting.  In part, the court found that the means chosen to accomplish this goal was underinclusive:

If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does.

 The court found that the other interests were likewise inadequate to support the ban on same-sex marriage.  In approximately 30 pages, the court affirmed the district court in Latta and reversed the district court in Sevcik.

Interestingly, there are two separate concurring opinions.  Judge Reinhardt wrote a separate concurring opinion (to his own opinion), adding a fundamental rights analysis: "laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve.  Unsurprisingly, he found the same-sex statutes did not survive under this more rigorous standard. 

Judge Berzon's separate concurring opinion added yet another justification for the ruling:  the same-sex marriage bans are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.

Thus, the Ninth Circuit joins the other three post-Windsor circuits, and essentially reaffirms its pre-Windsor holding in Perry v. Brown that same-sex marriage bans violate equal protection.

October 7, 2014 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Supreme Court Denies Certiorari to Same-Sex Marriage Petitions

In its Order today, the Court denied certiorari to a raft of cases, including the cases seeking review of opinions in which appellate courts found bans on same-sex marriage to be unconstitutional.

These cases are from three circuits:

From the Seventh Circuit:  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin;

From the Tenth Circuit,  Herbert v. Kitchen, the opinion issued in June regarding Utah's prohibition and Smith v. Bishop, extending Herbert's reasoning to the ban in Oklahoma; and

From the Fourth Circuit's Bostic v. Rainey, regarding Virginia's prohibition there were three petitions, McQuigg v. Bostic, Schaefer v. Bostic, and Rainey v. Bostic.  The Fourth Circuit has already issued a Mandate, lifting the stay. 

 

 

 

 

 

October 6, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Third Circuit has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.  

The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in  Pickup v. Brown, albeit on different grounds.

  640px-Nellie_Bly-Mad-House-07The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter),  specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted.  The Third Circuit credits some of the reasoning of Ninth Circuit Judge O'Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project.  The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:

consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.”  . . . .  As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.

Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context.  In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection. 

Nellie_Bly-Mad-House-15Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech.   In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”

The court's distinction between professional and nonprofessional speech, however, may  suffer from the same lack of bright lines that it finds with the conduct/speech distinction.  The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement."  But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute

allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.

The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined.  Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.

However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.

 [images from "Ten Days in a Mad House, Nellie Bly, via]

September 11, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Louisiana Federal Judge Upholds State's Same-Sex Marriage Ban

Breaking the spate of federal decisions that have invalidated state same-sex marriage prohibitions, federal district judge Martin Feldman of the Eastern District of Louisiana today upheld the constitutionality of that state's ban in his 32 page  opinion in Robicheaux v. Caldwell. 

Judge Feldman rejects the equal protection claim (the "most hefty constitutional issue") and the due process claim, as well as rejecting any heightened scrutiny within those claims and any extension of Windsor to state same-sex marriage bans. In applying rational basis, the judge found that the "central state interest of linking children to an intact family formed by their biological parents" and of "even more consequence," the "legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus," was sufficient.

The theoretical underpinnings of the judge's rationale are a preference for states' rights,  democratically enacted provisions, tradition, and a judicial practice of being "circumspect." 

750px-Louisiana_map_Colton_1856

Judge Feldman's opinion credits notions of formal equality and the slippery slope.  For example, in rejecting the analogy to Loving v. Virginia, Judge Feldman writes:  "no analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women."   This evenhandedness was precisely the argument Virginia unsuccessfully advanced in Loving when it argued that under its miscengenation statute, both whites and blacks would be prosecuted.  At another point, Judge Feldman states:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Judge Feldman acknowledged that his decision departed from the recent trend, but quoted from the dissenting opinion in the Fourth Circuit's decision in Bostic v. Schaefer.

As Judge Feldman also stated:

Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many. Our Fifth Circuit has not yet spoken.

Whether or not the case is appealed to the Fifth Circuit, the issue seems sure to be heard by the United States Supreme Court.

September 3, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Thursday, August 21, 2014

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

In his 33 page  opinion  today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.

Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct."  Given that there is a fundamental right, he continued:

That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.

Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."

Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context. 

Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.

August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Fourth Circuit Denies Stay in Virginia Same-Sex Marriage Case

Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its  Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.

Here's the text of the Order:

Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.

Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.

The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.

The saga will undoubtedly continue. 

August 13, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2014

CFP: AALS on Sex, Gender, and Law

Call for Presentations and Papers

65

Association of American Law Schools
 
AALS Workshop on Next Generation Issues on
Sex, Gender and the Law
 
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
Orlando, Florida


 
 
Here's the CFP:

After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider.  To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women's poverty, and women in legal education.
 
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women's equality.  An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women's lives.  We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women's needs.  Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women's equality and the law.

 
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
 
Concurrent Sessions
 
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education.  We will organize the presentations into panels based on the subject matter of the proposals.  Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
 
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume.  Please e-mail these materials to 15wksp@aals.org by September 15, 2014.  We will notify selected speakers by November 1, 2014.
 
Brainstorming Proposals
 
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law.  Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments.  Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
 
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume.  Please e-mail these materials to 15wksp@aals.org by September 15, 2014.  We will notify selected speakers by November 1, 2014.
 

August 7, 2014 in Conferences, Equal Protection, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Colorado Federal Judge on Same-Sex Marriage Ban: Unconstitutional and Not Quite a Stay

In his relatively brief opinion today in Burns v. Hickenlooper, Judge Raymond Moore enjoined Colorado officials from enforcing or applying Article II, Section 31 of the Colorado Constitution and C.R.S. §§ 14-2-104(1)(b) and 14-2-104(2) as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states.

The injunction is supported by little Due Process or Equal Protection analysis; instead its determination is more than aptly supported by the mandatory precedent of the Tenth Circuit's decision in Kitchen v. Herbert.

More difficult than the merits issue was the procedural stay issue.  Judge Moore decided to issue only a temporary stay until Monday, August 25, 2014, to allow the parties to seek relief from the Tenth Circuit or the United States Supreme Court.  The judge noted that the Tenth Circuit had already spoken, but given the United States Supreme Court's stay regarding the Utah same-sex marriage case last week in Evans v. Herbert,  the directives regarding the appropriateness of a stay were less than clear.

220px-Piacenza_Bronzeleber
Etruscan inscriptions on a bronze sheep's liver as might be consulted by a haruspex via

As Judge Moore wrote:

Based on the most recent stay [in Evans v. Herbert], it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

For further analysis of the problem on stays in the same-sex marriage litigation, take a look at LawProf Nancy Leong's great discussion of the stay factors and how they apply in same-sex marriage litigation.

July 23, 2014 in Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Obama (& Bush) on Executive Orders Regarding LGBT Discrimination and Religion

Today President Obama signed an Executive Order:  "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity." 

Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.

Here's the video put out by the White House:

 

 And here are some more specific details:

The Executive Order  broadens the terms of prohibited discrimination in federal employment in Executive Order 11478  by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."

It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."

As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

But what about Bush's Executive Order?  Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial. 

GilmanThis might be a good time to reread Michele Gilman's terrific article from 2007,  If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007).  Gilman argues that Bush has exceeded his constitutional powers.  Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.

And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.

While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo.   It allows religious entities to discriminate on the basis of religion, but not on any other basis.  The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit."   It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.

July 21, 2014 in Equal Protection, Executive Authority, Gender, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Tenth Circuit on the Oklahoma Same-Sex Marriage Ban

What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith?  It's complicated.  

But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.

Screen Shot 2014-07-18 at 2.04.37 PMThe complications are caused in part by the procedural posture of the case.   For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen),  the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing.  Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.

The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute. 

Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury."  However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury. 

This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state?  - - - that the Clerk of the Court was the correct defendant.  Thus, under a "law of the case" argument, the courts should be bound by that determination.  The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties.  It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived. 

As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences."  The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."

Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis.  Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance."  But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."

In his relatively brief partially dissenting opinion,  Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits.  However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert.  For Judge Kelly, as he phrases it here:

Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes,  the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.

This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court.  For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."

July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Federal District Judge Declares Kentucky's Same-Sex Marriage Ban Unconstitutional

In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.

Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.

Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law.  And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.

Animated-Flag-Kentucky
Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential.  It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now."  As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."

In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake.  He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered."  Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.

Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny.  Note that this is a departure from his earlier decision in Bourke to apply rational basis.  Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - -  is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors:  historical discrimination;  the ability to contribute to society;  immutable defining characteristics; and  political powerlessness.  Thus, the opinion would ordinarily then apply the  intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."

But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:

Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.

In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people."  Moreover, he concludes that the means chosen are not rationally related:

Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.

Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke.  In Love v. Beshear, Judge Heyburn notes

Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.

Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin);   Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter  (Idaho); De Leon v. Perry (Texas);  DeBoer v. Snyder (Michigan); and  Bostic v. Rainey  (Virgina).

He adds that with "this opinion, this Court joins their company."

It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.

July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Federal District Judge Invalidates Indiana Laws Banning Same-Sex Marriage

In his decision today in Baskin v. Bogan, United States District Judge Richard Young permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states, Indiana Code Section 31-11-1-1 (subsections a & b).

621px-Flag_map_of_Indiana.svgAfter resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.

First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny.  Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court  "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’"  Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest."  However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is  "both over- and under-inclusive."

Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification.  While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed."  Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.

Third, Judge Young independently analyzes subsection b of the statute, applying to recognition.  The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause."  Again, applying rational basis scrutiny, Judge Young concludes:

Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.

Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations.  Judge Young did not issue a stay of his opinion.  One assumes that such a decision may be sought from the Seventh Circuit.

UPDATE HERE

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Full Faith and Credit Clause, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tenth Circuit Holds Utah's Same-Sex Marriage Ban Unconstitutional in a Divided Decision

In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the

Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.

Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."

In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling.  However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests.  Instead, each of the

justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.

The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion.  The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages. 

The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.

As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage." 

Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part).   Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny.  Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.

More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it  "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.

 If - -  and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines. 

Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Friday, June 6, 2014

Wisconsin Federal Judge Declares Same Sex Marriage Ban Unconstitutional

Joining the federal judges who have declared unconstitutional their respective state laws banning same-sex marriage, Judge Barbara Crabb issued an 88 page opinion and order in Wolf v. Walker ruling that Art. XIII, § 13 of the Wisconsin Constitution prohibiting same-sex marriage "violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution" and that "any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife,' are unconstitutional as applied to same-sex couples."

640px-EB9_WisconsinWhile Judge Crabb does not issue a stay, the opinion is not effective immediately.  Instead, the plaintiffs have until June 16 to submit a proposed injunction, the defendants have a week to respond, and the Judge will consider the stay at that time - - - adding a specific allowance of the parties to address the application for a stay in light of the United States Supreme Court's refusal to grant a stay - - - just two days ago - - - in Geiger v. Kitzhaber.

Crabb's opinion is a scholarly treatment that seriously engages with seemingly all of the arguments raised by the state, the plaintiffs, and various amici.  It echoes other judges who have reached similar results in relying upon Justice Scalia's dissenting opinions to support its conclusions.  Judge Crabb also interestingly uses work by Maggie Gallagher, one of the founders of the anti-same-sex marriage group National Organizer for Marriage as a supporting citation for the importance of marriage as "essential to the pursuit of happiness."  The range of her citations is impressive and although the opinion certainly has rhetorical flourishes, it is measured and substantive.

Her statement that marriage is a "fundamental right" is more nuanced in the conclusion to the due process analysis in opinion, which concludes:

that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a “husband” and a “wife” significantly interfere with plaintiffs’ right to marry, so the laws must be supported by “sufficiently important state interests” that are “closely tailored to effectuate only those interests,” Zablocki [v. Redhail]  434 U.S. at 388, in order to survive constitutional scrutiny.

Regarding the level of scrutiny under the Equal Protection Clause, Judge Crabb finds that Supreme Court precedent - - - including Windsor - - - is not determinative and that Seventh Circuit precedent is similarly not determinative.  The opinion therefore engages in an analysis of the classification under four factors: history of discrimination; ability to contribute to society the same as others; immutability; and political powerlessness.  (Interestingly, Judge Crabb does not cite to Carolene Products).  She ultimately concludes that heightened scrutiny (intermediate scrutiny) is appropriate, although she does "hedge her bets" a bit, writing that

regardless whether I apply strict scrutiny, intermediate scrutiny or some “more searching” form of rational basis review under the equal protection clause, I conclude that the marriage amendment and related statutes cannot survive constitutional review.

The opinion then seriously considers the by-now familiar asserted interests: tradition, procreation, optimal child-rearing, protecting the institution of marriage, proceeding with caution, and the less-oft explicit interest of "slippery slope."  Not surprisingly, she finds none of them support the same-sex marriage ban.

Judge Crabb's opinion acknowledges the opinion's place in the current terrain of post-Windsor decisions.  Not only does she address the recent cases, she also considers the social climate, with reference to one of the circuit judges who might well hear the case on appeal:

In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1585 (1997) (“Public opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.”), with Richard A. Posner, “Homosexual Marriage—Posner,” The Becker-Posner Blog (May 13, 2012) (“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”).

This case is most likely going to the Seventh Circuit - - - and it or one of its sister-opinions - - - is most likely headed to the Supreme Court.

June 6, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

United States Supreme Court Denies Stay of Oregon Same-Sex Marriage Ruling

Without dissent or opinion, the United States Supreme Court denied the application of stay in National Organization for Marriage v. Geiger.  The application was made to Justice Kennedy (as Circuit Justice) and "by him referred to the Court." 

The National Organization for Marriage (NOM) was not a party to the orginal case, Geiger v. Kitzhaber in which Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution, as we discussed here.

Recall that Oregon conceded that the state law was unconstitutional; hence the application by NOM.  However, while Judge McShane did not analyze defendant standing or Article III "case and controversy" in Geiger, NOM's application for a stay in Geiger raises even more serious Article III issues after Hollingsworth v. Perry.

June 5, 2014 in Courts and Judging, Current Affairs, Family, Federalism, Fourteenth Amendment, Sexual Orientation, Standing | Permalink | Comments (0) | TrackBack (0)