Monday, April 14, 2014
In the widely anticipated opinion in Henry v. Himes, Judge Timothy Black has ruled that Ohio Const. Art. XV, § 11 and Ohio Rev. Code § 3101.01(C) denying legal recognition to the marriages of same-sex couples validly entered in other jurisdictions violates the Fourteenth Amendment.
Recall that Judge Black previously issued an opinion in Obergefell v. Kasich with a similar conclusion, although that opinion was limited to the particular plaintiffs. Judge Black's preliminary injunction ruling in Obergefell was the first post-Windsor decision on same sex marriage, and interestingly used some of Justice Scalia's dissenting language to support his reasoning.
While Obergefell involved a person who was dying, the plaintiffs in Henry are same-sex couples expecting children or with children. The four plaintiff couples, who entered into valid marriages in other jurisdictions, seek to have the names of both parents recorded on their children’s Ohio birth certificates and a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional. Judge Black relied heavily on his previous rationale in Obergefell, and again found that while marriage is a fundamental right, the Supreme Court has not explicitly recognized it as such, and "the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ already- established marital and family relations." Again, Judge Black footnotes Professor Steve Sanders work on the liberty interest in having one's marriage recognized.
In the equal protection analysis, Judge Black does advance a distinct rationale for "heightened scrutiny" given that the children's birth certificates are involved. He writes that the "Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause," citing Plyler v. Doe, 457 U.S. 202 (1982). But, as in Obergefell, he also explicitly found that even if rational basis were applied, the Ohio provisions failed to satisfy it.
On the last page of Judge Black's opinion is the text of a song, "Happy Adoption Day" (1992). For some, this will seem appropriate and celebratory. For others, this will seem indecorous and treacly. Judge Black's previous statements have displeased at least one state representative - - - who has introduced a resolution in the Ohio legislature calling for the House of Representatives of Congress to initiate impeachment proceedings.
Friday, March 21, 2014
Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his opinion today in DeBoer v. Snyder.
At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004. The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause. The court stated it therefore did not reach the Due Process Clause question.
The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:
- providing an optimal environment for child rearing;
- proceeding with caution before altering the traditional definition of marriage; and
- upholding tradition and morality.
In evaluating each of these, the judge reached the by now familiar conclusions. Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise.
Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.
The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."
Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."
The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.
[image: Map of Michigan circa 1836 via]
Monday, March 17, 2014
Writing for a unanimous Court in 1995, Justice Souter in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group held that the First Amendment rights of the South Boston Allied War Veterans Council (and its individual member John "Wacko" Hurley) allowed the exclusion of the Irish-American Gay, Lesbian, and Bisexual Group (GLIB) from the St. Patrick's Day Parade, despite the Massachusetts' public accommodation law prohibiting discrimination on the basis of sexual orientation.
Justice Souter famously opined that although the parade might seem not to have a particularized message that would be inconsistent with GLIB, its message was as particularized as "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll."
Some St. Patrick's Day parades continue to exclude identified sexual minority groups, including the Boston one - - - in which Boston's mayor will reportedly not participate this year, and the New York City one - - - in which NYC's mayor will likewise reportedly not participate this year. Other St. Patrick's Day parades do not ban LGBT groups.
Saturday, March 15, 2014
Tennessee Federal Judge Issues a Narrow Injunction Regarding Prohibition of Same-Sex Marriage Recognition
In her opinion in Tanco v. Haslom, federal district judge in the Middle District of Tennessee, Aleta A. Trauger, decided that what she called the state's "Anti-Recognition Laws" are most likely unconstitutional as violative of equal protection, even under rational basis review. She therefore enjoined the state from refusing to recognize the otherwise valid out-of-state marriages of the six plaintiffs in the case.
Judge Trauger's opinion is relatively brief. She highlights the United States Supreme Court's decision in United States v. Windsor , and while she does not mention Justice Scalia's Windsor dissent, she does echo the cases that have, and notes the "rising tide" of cases that have relied on Windsor to find their state same-sex marriage prohibitions unconstitutional. She states that she
finds Judge Heyburn’s equal protection analysis in Bourke [v. Beshear], which involved an analogous Kentucky anti-recognition law, to be especially persuasive with respect to the plaintiffs’ likelihood of success on the merits of their Equal Protection Clause.
While emphasizing the narrowness of her opinion and that the United States Supreme Court will ultimately rule on the matter, she concludes with a prediction:
At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.
[image: 1827 map of Tennessee via]
Friday, March 14, 2014
Uganda's controversial law, The Anti-Homosexuality Act, 2014, long-linked to United States Evangelicals, has been challenged as unconstitutional by a petition filed in the Constitutional Court of Uganda.
The vast majority of the claims of unconstitutionality focus on the rights provisions in the Uganda Constitution, including explicit rights of equality, privacy, dignity, civic participation, freedom from cruel, inhuman and degrading punishment, expression, for persons with disabilities, and fair hearing. The claims also rely on the principles in the "National Objectives and Directive Principles of State Policy" which are part of the Constitution.
Here are a few examples of the ultimate legal arguments in the petition:
THAT sections 1, 2 and 4 of the Anti-Homosexuality Act 2014, in defining and criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) & (2), 21(1), (2) & (4) and 27 of the Constitution of the Republic of Uganda respectively;
THAT section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda;
THAT Sections 7 and 13(1) & (2) of Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counselling, procuring and promotion of homosexuality, create offences that are overly broad, penalise legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, Articles 2(1) & (2), 8A, 28(1), (3b), & (12), 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda 1995.
There are certainly many who hope the Uganda Constitutional Court will look to the prestigious Constitutional Court of South Africa for guidance in deciding these issues, although unlike the South African Constitution, the Uganda Constitution does not have an explicit provision protection sexual orientation.
[H/T Tony Tate]
[Image of Uganda Coat of Arms via]
Monday, March 3, 2014
There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment:
De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky;
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.
Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.
In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.
March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 26, 2014
Judge Orlando Garcia's opinion in DeLeon v. Perry issuing a preliminary injunction against a state constitutional same-sex marriage ban because it is most likely unconstitutional under the Fourteenth Amendment today marks the sixth time in recent weeks that a federal judge has reached such a conclusion.
Indeed, Judge Garcia's opinion relies upon these previous opinions in Bostic v. Rainey from the Eastern District of Virginia, Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah, as well as upon the Supreme Court's opinion in United States v. Windsor declaring §3 of DOMA unconstitutional.
Judge Garcia's 38 page opinion begins with an extensive discussion of the parties, the statutory and state constitutional scheme in Texas barring same sex marriage, and even a discussion of the "national debate on same sex marriage beginning with the Hawai'i Supreme Court's 1993 decision in Baehr v. Lewin. As a preliminary matter, he not only analyzes the standing issue, but also the United States Supreme Court's summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), which would seem to have been rendered irrelevant by Windsor.
On the merits - - - or more properly, on the "likelihood to succeed on the merits" prong of the preliminary judgment analysis - - - Judge Garcia's analysis is well-crafted and closely reasoned.
Regarding equal protection, his analysis of the contention that sexual orientation merits heightened scrutiny is well-done, although he ultimately concludes that it is unnecessary to apply heightened scrutiny because "Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review." He concludes that the two government interests that the State proffers as supporting the same sex marriage ban as failing rational basis review. First, the state's desire "to increase the likelihood that a mother and a father will be in charge of childrearing" is reinterpreted simply as childrearing. As such, while the interest may be legitimate, it is not rationally served by banning same-sex marriage. Second, the state's desire "to encourage stable family environments for responsible procreation" is similarly not served. Third, Judge Garcia discusses "tradition," that while it was not explicitly advanced by the State, undergirds many of the State's arguments. Here Judge Garcia finds that the interest is not legitmate.
In his analysis of due process, Judge Garcia, like Judge Allen in Bostic, finds marriage to be a fundamental right. Judge Garcia marshalls the Supreme Court precedent thusly:
The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) ( 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."); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society, without which there would be neither civilization nor progress.").
He thus applies strict scrutiny and the same-sex marriage ban fails.
Judge Garcia also considers the failure to recognize an out of state same-sex marriage, as required by Texas law, and subjects this to rational basis, and analogizing to Windsor, finds this also easily fails.The opinion does seemingly address a popular audience, but even here Judge Garcia grounds his rhetoric in precedent:
Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation bom out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).
Judge Garcia stayed his opinion, mindful of the stay in Herbert v. Kitchen. Thus until the Fifth Circuit hears the case - - - or another decision - - - same sex marriages will not be occurring in Texas.
[image: map of Texas circa 1866 via]
February 26, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Saturday, February 22, 2014
In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements - - - was unconstitutional.
The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:
There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.
The sticking points were the remedies.
First, and less sticky, was the timing. The judge quoted Martin Luther King for her reasoning to extend previous rulings:
the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).
Second, and stickier, was the place:
The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.
Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.
[image: map of Chicago, circa 1871, via]
Friday, February 14, 2014
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Thursday, February 13, 2014
United States District Judge John G. Heyburn's opinion in Bourke v. Beshear finds 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.
The judge's 23 page opinion is crafted for both a nonlegal and legal audience.
For popular consumption, Judge Heyburn's opinion has passages written in direct prose answering questions he himself has posed and unburdened with extensive citations. For example, he writes:
For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?
The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist.
He discusses religiosity in similar terms, beginning by noting that many Kentuckians believe "what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit" and later opining that
The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.
For its legal audience, Judge Heyburn's opinion contains a rigorous analysis of equal protection doctrine, of the Supreme Court's decision last June in United States v. Windsor, and of the courts applying Windsor.
Engaging with the Court's opinion in Windsor, authored by Justice Kennedy, Judge Heyburn expresses some frustration with the lack of clear equal protection doctrine, observing that the Court "never clearly explained the applicable standard of review." Nevertheless, Judge Heyburn used two "principles" of Windsor: that the actual purpose of the law must be considered in light of animus and that the laws must not demean one group by depriving them of the rights provided for others. Ultimately, Judge Heyburn applies rational basis review and finds that the government interests proferred by Kentucky - - - as well as those advanced in an amicus brief submitted by the Family Trust Foundation of Kentucky - - - are not legitimate interests.
Judge Heyburn also discusses the three federal district judges who have reached similar conclusions in "well-reasoned opinions," citing the opinions in Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
To be clear, the effect of the opinion is not to mandate clerks in Kentucky begin offering marriage licenses to same-sex couples. But it is to require Kentucky to recognize same-sex marriages valid in another state as valid in Kentucky on the same terms as other marriages.
[image: 1921 map of Kentucky via]
Tuesday, February 11, 2014
Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible." Holder discussed the forthcoming memo in a speech delivered the previous weekend.
In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law." This shifts the marriage validity question away from domicile or residence.
Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."
Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.
One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges. Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).
Sunday, February 9, 2014
Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review
Recall that the Ninth Circuit upheld the California statute in Pickup v. Brown in August 2013. The panel concluded that on the continuum between speech and conduct, California's SB 1172 landed on conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.
The Ninth Circuit has issued an opinion and rejected en banc rehearing over a dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta. The dissenting opinion began with a forceful "issue statement" worthy of an oral argument:
May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.
Interestingly, the original panel - - - Judge Susan Graber, joined by Chief Judge Alex Kozinski and Judge Morgan Christen - - - included an amended panel opinion accompanying the denial of the en banc rehearing. This amended panel opinion adds two passages that discuss United States Supreme Court precedent on the "conduct" issue with which the dissenters disagreed.
First, Judge Graber adds a brief discussion [in italics below] before the more detailed discussion of Ninth Circuit precedent:
The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
Second, and more substantially, the amended opinion includes a discussion of Holder v. Humanitarian Law Project upon which the dissenting opinion relied, as well as expanding the reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”):
Plaintiffs contend that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), supports their position. It does not.
As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).
In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.
This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.
It's fair to say that these passages - - - incorporating United States Supreme Court cases - - - are intended to communicate to the Supreme Court Justices why the Ninth Circuit panel opinion does not merit review.
A split in the circuits does not seem likely. A New Jersey federal judge upheld the similar New Jersey statute prohibiting sexual conversion therapy under similar rationale.
Monday, January 27, 2014
Friday, January 24, 2014
Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban
The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support) in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.
The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.
The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8. Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8. When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal. Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful. And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.
The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.
On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute. The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits." (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).
Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.
Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it. But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.
Tuesday, January 21, 2014
Ninth Circuit Extends Batson's Equal Protection Doctrine Regarding Juror Exclusion to Sexual Orientation and Applies "Heightened" Scrutiny
In its opinion today in SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation.
The underlying dispute between the pharmaceutical companies involved HIV medications and during jury selection the attorneys for Abbott Laboratories "used its first peremptory strike against the only self-identified gay member of the venire." The attorneys for GSK sought to initiate a Batson inquiry on the basis of sexual orientation. The Batson analysis first requires a "prima facie" case of intentional discrimination, after which the striking party must offer a neutral reason for the strike, and then, third and last, the court makes a determination whether there has been an equal protection violation.
The district judge allowed the preemptory strike although said she would "reconsider her ruling if Abbott struck other gay men." While the judge advised Abbott's attorney that “it might be the better part of valor” to reveal the basis for his strike, counsel "replied that he would rely on the grounds given by the judge and further explained, 'I don’t think any of the challenge applies. I have no idea whether he is gay or not.'" Apparently he later "added that he could not have engaged in intentional discrimination because this was only his first strike." After a four week trial, the jury returned a "mixed verdict."
In the opinion authored by Judge Reinhardt, the Ninth Circuit held that there was a "prima facie" sufficient to have triggered the Batson inquiry, and using the record before it, then engaged in the second prong of the Batson analysis, finding that Abbott's counsel did not provide a sufficient explanation.
As to the third prong, the Ninth Circuit panel noted that generally attorneys may "exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review." It then stated: "Thus, if sexual orientation is subject to rational basis review, Abbott’s strike does not require reversal."
Judge Reinhardt's opinion for the panel concluded that sexual orientation receives "heightened scrutiny" under equal protection. The opinion turned to "the Supreme Court’s most recent case on the relationship between equal protection and classifications based on sexual orientation": United States v. Windsor (2013), holding that Windsor was "dispositive of the question of the appropriate level of scrutiny in this case," even as the Court's majority opinion in Windsor "did not expressly announce the level of scrutiny it applied to the equal protection claim at issue." Judge Reinhardt correctly noted that the Court in Windsor did not apply a presumption of constitutionality or supply reasons for Congressional action in DOMA.
Windsor scrutiny “requires something more than traditional rational basis review.” Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.
Thus, the Ninth Circuit's previous precedent applying rational basis to sexual orientation classifications was no longer valid. Applying this heightened scrutiny, the Ninth Circuit found that the peremptory challenge was unconstitutional:
permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.
In sum, the Ninth Circuit's extended Batson to sexual orientation classifications and used the term "heightened scrutiny" to comply with the doctrine that Batson did not apply to classifications that merited rational basis scrutiny.
However, one might be reading too much into the opinion to conclude that the Ninth Circuit has ruled that sexual orientation classifications now merit heightened scrutiny akin to "intermediate scrutiny." Indeed, the Ninth Circuit relies upon the United States Supreme Court's opinion in Windsor which it admits is less than clear about the level of scrutiny - - - and certainly much less clear than the Second Circuit's opinion in Windsor which determined and applied the intermediate level of equal protection scrutiny used in gender/sex classifications.
Instead, it seems that the Ninth Circuit read the "rational basis" exclusion from Batson to be the "mere" rationality test - - - often called the "anything goes" rational basis of Railway Express Agency v. New York (1949) (which the Ninth Circuit panel opinion did not cite) or Fed. Commc’n Comm’n v. Beach Commc’n, Inc. (1993) (which the Ninth Circuit did cite and quote). The "heightened scrutiny" that the Ninth Circuit finds - - - derived from Windsor - - - is akin to the "heightened rational basis" or "rational basis with bite" or "rational basis with teeth" that has become a common feature of equal protection doctrine for sexual orientation classifications. While the Ninth Circuit opinion does not stress "animus," it does discuss Department of Agriculture v. Moreno (1973), including stating that the Ninth Circuit previously "acknowledged that Moreno applied “‘heightened’ scrutiny.”
Certainly, this is an important opinion: it extends Batson to sexual orientation classifications. And it is also important to the litigation between two giant pharmaceutical corporations given that the case was remanded for a new trial. However, it is not a landmark opinion that substantively changes (rather than clarifies or renames) the level of scrutiny for sexual orientation classifications in all equal protection cases.
Tuesday, January 14, 2014
In a lengthy opinion today in Bishop v. United States (Smith), Judge Terence Kern of the Northern District of Oklahoma found unconstitutional the state constitutional amendment, article 2, §35 that defines marriage as consisting "only of the union of one man and one woman," and further that no law "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
The lawsuit, originally filed in 2004 soon after the state constitutional amendment, also challenged the federal DOMA, as well as other portions of the state "little DOMA" and includes several plaintiffs. As to these challenges, the judge found a lack of standing. However, as to the definitional section of article 2, §35 (above), known as "Part A" of the Oklahoma Constitutional Amendment, the judge found that the "Bishop couple" had standing - - - and that the provision violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
As to the Equal Protection claim, the judge rejected the argument by Smith, the Oklahoma county clerk, that Baker v. Nelson (1972) was binding precedent. More interestingly, the judge also rejected the argument that last Term's decision in Windsor v. United States, holding section 3 of the federal DOMA unconstitutional was determinative: "Both parties argue that Windsor supports their position, and both are right."
Judge Kern correctly observed:
The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A [of the Oklahoma Constitutional Amendment].
The judge then applied the Tenth Circuit's framework for analyzing equal protection questions:
First, the Court asks “whether the challenged state action intentionally discriminates between groups of persons.” Second, after an act of intentional discrimination is identified, the Court must ask “whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.”
By examining the legislative actions - - - including a press release - - - the judge found that the exclusion of the defined class was not a "hidden or ulterior motive," but was "consistently communicated to Oklahoma citizens as a justification" for the amendment.
For the next line of inquiry focusing on the justification for the discrimination, the judge rejected the argument that it was gender discrimination (relying on "common sense"), and concluded it could be best described as "sexual-orientation discrimination." The judge applied the familiar "rationality" standard, but rejected the "morality" government interest originally proffered, as well as the "negative impact on marriage" interest. While he did not use the label of "animus" for these interests, the import of the analysis is sympathetic to such a reading.
He similarly rejected the interests of "Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage," and "Promoting the “Optimal” Child-Rearing Environment," finding that while these interests might be legitimate, they were not being rationally served by the means chosen of prohibiting same-sex couples from marriage.
The judge concluded:
The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.
Thus, same-sex marriages will not occur in Oklahoma as they did in Utah while the state government sought stays. Instead, the Tenth Circuit's expedited appeal in Herbert v. Kitchen is now also determinative of Oklahoma.
Monday, January 6, 2014
Here's the entire text:
The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.
Note that Justice Sotomayor as the Circuit Justice referred the decision to the full Court, an expected but not necessarily routine process.
The Tenth Circuit itself had denied the properly filed emergency motion for stay, concluding it was not warranted and specifically noting that of the four factors governing a stay pending appeal, two - - - the likelihood of success on appeal and the threat of irreparable harm if the stay is not granted - - - are "most critical, and they require more than a mere possibility of success and irreparable harm, respectively."
The Tenth Circuit also directed expedited review.
The United States Supreme Court's stay thus halts the entering into of same-sex marriages which have been proceeding since the District Judge's order on December 20, but has no effect on the legality of the same-sex marriages entered into during that period.
Thursday, January 2, 2014
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Monday, December 23, 2013
In an opinion today in Obergefell v. Kasich, federal Judge Timothy Black (pictured) of the Southern District of Ohio issued a permanent injunction against a particular enforcement of Ohio's limitation of marriage to opposite sex couples.
Recall that in July, less than a month after the United States Supreme Court's decision in United States v. Windsor declaring DOMA unconstitutional, Judge Black enjoined Ohio's DOMA-type provisions (both statutory and in the state constitution) involving the recognition of a marriage that occurred out of state in an especially sympathetic situation involving a dying person.
In today's opinion, Judge Black - - - as he did in his previous opinion and as Judge Robert Shelby did in his opinion declaring Utah's ban on same-sex marriage unconstitutional - - - used Justice Scalia's dissent in Windsor as support:
In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it’s just a matter of listening and waiting for the other shoe [to drop].” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).
The challenge before Judge Black is an as-applied-one relating to a specific couple, a death certificate, and an out of state marriage.
On the due process challenge, Judge Black concluded that "Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever."
On the equal protection challenge, Judge Black used a Carolene-type analysis to conclude that sexual orientation classifications merited heightened scrutiny. However, he also decided that the Ohio marriage ban failed to satisfy even rational basis, both because animus was not a legitimate interest and because the non-animus legitimate interests asserted had no rational connection to Ohio's marriage recognition ban of same-sex couples.
Although the final injunction is limited to this particular couple and relates to the death of one of the partners, its reasoning could undoubtedly apply in a facial challenge.
Friday, December 20, 2013
In his opinion in Kitchen v. Herbert, federal district judge Robert Shelby held
that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.
The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:
The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.
133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny. He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."
Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative. Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review. This rejection includes the arguments centering on animus as a non-legitimate state interest. Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage. These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing," "proceeding with caution," and "preserving the traditional definition of marriage."
He ends with an extended analogy to Loving v. Virginia, or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional. And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.