On January 6, Florida became the 36th marriage equality state as the stay of a federal district court order expired and county clerks in the nation’s third most populous state began issuing marriage licenses to same-sex couples. (A few couples got started a day early after a state court judge in Miami lifted a stay applicable to Miami-Dade county in a state court lawsuit.) As close observers of the unfolding marriage equality story focused their attention on the Supreme Court’s January 9 private conference, when the Court would begin discussing how to handle five pending petitions seeking review of lower court rulings against marriage equality, other federal courts began issuing a new round of rulings, some placing new states in play.
First in was a January 8 ruling by U.S. District Judge William S. Duffey, Jr., in Atlanta, ruling on the state’s motion to dismiss Inniss v. Aderhold, a marriage equality lawsuit brought by Lambda Legal and local attorneys on behalf of six same-sex couples, some seeking to marry and others seeking recognition for the marriages they had contracted out of state. Georgia, in common with all the other states in the deep south federal 11th and 5th Circuits, has a state constitutional amendment as well as statutes blocking same-sex couples from marrying, and the state is vigorously defending that ban in this lawsuit. Judge Duffey accepted some of the state’s arguments, dismissing part of the lawsuit, but concluded that the plaintiffs are entitled to proceed on a narrow equal protection theory.
The plaintiffs raised Due Process and Equal Protection challenges under the 14th Amendment, arguing that the ban violates their fundamental right to marry and discriminates against them because of their gender, gender stereotypes, and sexual orientation. The state’s first line of defense was to argue that the Supreme Court’s decision in 1972 in Baker v. Nelson that a challenge to Minnesota’s ban on same-sex marriage failed to raise a “substantial federal question” was binding on the district court and obliged it to dismiss the case.
As have most of the other federal judges confronting the Baker v. Nelson argument, Judge Duffey concluded that “doctrinal developments” in the Supreme Court since 1972, and most significantly the failure by the Supreme Court even to mention Baker v. Nelson in its 2013 decision striking down Section 3 of the Defense of Marriage Act, meant that he was not precluded from considering this case on the merits. However, he rejected the plaintiffs’ argument that the state’s denial to them of the right to marry violated a fundamental right, accepting the state’s argument that all of the Supreme Court precedents concerning the right to marry involved different-sex couples and thus did not stand for the proposition that opposite-sex couples enjoy a fundamental right to marry.
Having thus ruled out a challenge based on the Due Process Clause, Duffey turned his attention to the Equal Protection arguments. He credited the state’s argument that the ban did not discriminate because of sex, since both men and women are equally forbidden to marry same-sex partners, and he did not accept the plaintiffs’ argument that the ban improperly perpetuated gender stereotypes. Instead, he focused in on the claim that the state was discriminating because of the plaintiffs’ sexual orientation. Even as to that, he concluded that the Supreme Court’ gay rights decisions have not treated sexual orientation as a “suspect classification,” and thus the challenged marriage ban will survive Equal Protection review if it is supported by a rational justification.
But finally, at the very end of his decision, Duffey came to acknowledge that the plaintiffs might have a valid constitutional claim. He characterized the state’s argument that it has a legitimate interest in “encouraging the raising of children in homes consisting of a married mother and father, ensuring legal frameworks for protection of children of relationships where unintentional reproduction is possible; ensuring adequate reproduction; fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children, and exercising prudence before departing from the traditional definition of marriage,” as “conclusory assertions” that “are not supported by specific facts.” He complained that the state’s motion to dismiss “does not address how Georgia’s asserted interests in child welfare and procreation are advanced by the State’s prohibition on same-sex marriages, and the State’s refusal to recognize lawful marriages performed in other States.”
On the other hand, the plaintiffs’ Complaint makes factual allegations that challenge the rationality of the state ban, by showing actual harms to the welfare of children being raised by same-sex couples in denying marriage to their parents, and “that the exclusion does not offer a conceivable benefit to children of opposite-sex couples.” The Complaint also built on the Supreme Court’s Windsor decision, which had pointed out how forbidding same-sex couples from marrying “humiliates” their children. “At this stage of the proceedings,” wrote Duffey, “the Court is required to accept these facts as true and consider the allegations in the Amended Complaint in the light most favorable to Plaintiffs.” Consequently, Duffey concluded, the court was “required” to deny the motion to dismiss the Equal Protection claim. One gets a sense from reading his opinion that he came to this conclusion grudgingly, but the state’s failure to prevent any factual counter to the plaintiffs’ case was too glaring to ignore.
Duffey’s ruling provided an interested preview of the arguments that were made the next day, January 9, as a three-judge panel of the U.S. Court of Appeals for the 5th Circuit heard arguments in New Orleans on three marriage equality appeals. Plaintiffs were appealing an adverse ruling by the federal court in Louisiana, while the states were appealing solid marriage equality rulings from federal courts in Texas and Mississippi. The three-judge panel was anticipated to be tough for the plaintiffs, with two appointees by President Ronald Reagan, elderly long-serving judges, and only one appointee by President Barack Obama on the panel. However, one of the Reagan appointees, Patrick Higginbotham, has emerged as a libertarian on social issues, and took an active role in skeptical questioning of the lawyers presenting arguments on behalf of the state governments. The other Reagan appointee, Jerry Smith, kept harping on Baker v. Nelson and prodding the lawyers to say that Baker foreclosed the 5th Circuit from ruling for the plaintiffs as the Supreme Court “has already decided this case.” (This argument proved successful for the state governments in the 6th Circuit’s November 6 ruling on appeals from Michigan, Ohio, Kentucky and Tennessee, but was rejected by the 4th, 7th, 9th and 10th Circuits in their opinions issued last year.) The third member of the panel, James Graves, was clearly dismissive of the Baker argument, as was Higginbotham, and both focused in on the same point that concerned Judge Duffey in Atlanta: the “justifications” argued by the state for their bans never grappled with the question of how the bans actually advanced the states’ interests.
Listening to the arguments was like listening to people talking past each other. The states’ lawyers argued, essentially, that the institution of marriage was devised as a mechanism for channeling procreation, and that since same-sex couples could not procreate, the state had no reason to let them marry. The various plaintiffs’ attorneys, by contrast, pointed out, as had the Supreme Court in the DOMA case, that many same-sex couples are raising children, whether conceived through donor insemination or surrogacy or obtained through adoption, and to the extent the state’s concerns focus on the welfare of children, there was no showing that denying marriage to their parents benefited them in any way. Gay journalists present in the courtroom, and this writer who listened to the audio recording of the argument later released by the court, concluded that the panel was likely to vote 2-1 in favor of marriage equality for the three states of the 5th Circuit.
One fly in the ointment was a suggestion floated by Judge Graves more than once that perhaps a solution to the problem would be to require the states to recognize same-sex marriages contracted elsewhere but to allow them to refrain from granting licenses for the performance of marriages in their own states. Attorneys for the plaintiffs forcefully countered this suggestion, arguing that there was no rational way to do one without doing the other. Another was the casual remarks by the judges and attorneys about the Supreme Court conference occurring simultaneously in Washington, with the possibility that the 5th Circuit panel might just sit on this case while waiting to see what the Supreme Court does. The lawyer for the Texas plaintiffs, Daniel Lane, strongly urged the judges to make a decision and not wait on the Supreme Court, pointing out that his clients had pressing needs to be married or have their marriages recognized.
Later on January 9, the 9th Circuit Court of Appeals, based in San Francisco, which had been mulling Idaho’s petition for reconsideration of its October 7 marriage equality ruling by a larger panel of the court, finally announced that it was denying the petition. Idaho Governor Butch Otter had hedged his bets on this, filing a petition for review with the Supreme Court at the end of December. As is usually the case, the 9th Circuit did not issue an opinion explaining why it was denying the petition, merely stating that at the request of one member of the court, a poll of all the active judges was taken and the suggestion to rehear the case did not win a majority.
It’s clear where that suggestion came from: Circuit Judge Diarmuid O’Scannlain, one of the most conservative judges on the Circuit, who was joined by two colleagues in dissenting from the denial of rehearing. O’Scannlain’s lengthy dissent seemed to channel 6th Circuit Judge Jeffrey Sutton’s opinion, arguing that the Supreme Court has already decided this issue in 1972, and that as a lower court subject to Supreme Court precedent, the 9th Circuit should be dismissing marriage equality cases, not deciding them. He also emphasized the traditional abstention by federal courts from deciding issues about the domestic relations policies of the states. As had Sutton, O’Scannlain found support in his views from Justice Anthony Kennedy’s opinion in the DOMA case, which had emphasized the traditional role of the states in deciding who could marry, finding DOMA flawed for failing to respect the states’ role by withholding federal recognition from the marriage. As many federal court judges have commented, there is plenty of quotable material from Kennedy’s opinion for both sides to argue.
The 9th Circuit’s denial of en banc review was widely expected, even by Otter and his attorney general, a co-defendant who also filed his own petition for review with the Supreme Court. What was not widely expected was that the Supreme Court would end its January 9 conference without announcing that it would grant one or more of the petitions for review in the marriage cases. Indeed, the Court said nothing about the cases on Friday. When it reconvened on Monday, January 12, the Court announced that it would not review the Louisiana case, in which Lambda Legal sought to by-pass the 5th Circuit entirely. The Court did indicate that it would continue to discuss the appeals from the 6th Circuit decision during its next conference on January 16.
But that was not the only marriage equality news on January 12. In South Dakota, U.S. District Judge Karen E. Schreier granted the plaintiffs’ motion for summary judgment in a pending marriage equality case, Rosenbrahn v. Daugaard, brought by Joshua Newville of Madia Law LLC and Debra Voigt of Burd And Voigt Law Office and the National Center for Lesbian Rights on behalf of six same-sex couples. It is no longer big news when a federal district judge rules for marriage equality, as more than three dozen have done so since December 2013, but interest focuses on which constitutional theory they embrace. Contrary to Judge Duffey, who dismissed the Georgia plaintiffs’ Due Process claim, Judge Schreier premised her decision on the fundamental right to marry, rejecting the argument that the Supreme Court’s marriage precedents were limited by the fact that the couples in all of those cases were different-sex couples.
“Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right,” she wrote. “The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right. In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry. Thus, the right at stake is not a new right to same-sex marriage, as defendants contend. Instead, the substantive due process right is the right to marry, which right is fundamental.” Having reached this conclusion, she subjected South Dakota’s ban to “strict scrutiny,” and found that the state’s proffered justifications (channeling procreation into marriage and proceeding with caution) flunked the test. Neither was a compelling interest that could only be achieved by denying same-sex couples the right to marry.
She pointed out that if “proceeding with caution” was a compelling state interest, “this justification would support every existing law” that was subjected to constitutional challenge. “Even if it were compelling,” she wrote, “defendants have not shown what additional information South Dakota needs to gather, why preserving the status quo is the only means of avoiding unidentified future harm, and how long South Dakota same-sex couples should wait to enjoy their fundamental constitutional right to marriage.”
Since a fundamental right was at stake, Judge Schreier pointed out, the Equal Protection challenge also went in favor of the plaintiffs, since a state must prove a compelling interest in order to discriminate with respect to a fundamental right.
However, since the 8th Circuit Court of Appeals, in whose jurisdiction South Dakota is located, has not yet issued a marriage equality ruling as part of the current round of litigation, the judge granted the state’s motion to stay her order pending appeal. Appeals are already pending before the 8th Circuit from marriage equality rulings in Missouri and Arkansas, but the court has yet to schedule oral arguments. Two other states in the Circuit already have marriage equality: Minnesota by statute and Iowa by state court decision. Cases are still pending before federal trial courts in North Dakota and Nebraska, the remaining states in the circuit.
The lack of an 8th Circuit appellate decision might have served as a good justification for staying the order until recently, but the Supreme Court’s refusal to stay the Florida marriage decision, even though the 11th Circuit had not yet decided the state’s appeal, certainly undercuts that justification. The Supreme Court allowed Florida to become the 36th marriage equality state without benefit of an appellate ruling, sending an unmistakable signal that a majority of the Court is comfortable with allowing such orders to go into effect while the appellate process grinds on. It’s hard to see why courts in other states should not follow suit.