When the U.S. Supreme Court ruled on June 26 in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment, it technically reversed a ruling by the 6th Circuit Court of Appeals, which had in November 2014 itself reversed rulings issued by federal district judges earlier in that year striking down state bans on same-sex marriage in each of the states in the circuit. Thus, as a technical matter the Supreme Court was just directly holding that the same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee violate the 14th Amendment.
As of June 26, appeals were pending before the 8th Circuit Court of Appeals from three states – South Dakota, Nebraska, and Arkansas – where the states were contesting district court rulings striking down their same-sex marriage bans. The 8th Circuit had scheduled oral arguments to take place in the spring, but the court cancelled the arguments, putting all the state appeals on hold while the Supreme Court case was pending.
After the Supreme Court ruled, plaintiffs in the 8th Circuit cases asked the court of appeals to affirm the district court rulings and enjoin the three states from enforcing their same-sex marriage bans. The three states, on the other hand, claimed that they had begun to issue marriage licenses to same-sex couples and to recognize same-sex marriages in response to the Obergefell decision. As a result, they argued, the lawsuits against them were moot, since there was no longer a live legal controversy to be decided by the court of appeals. They urged the 8th Circuit to vacate the district court opinions and instruct the district courts to dismiss these lawsuits as moot, opposing the plaintiffs’ requests that the 8th Circuit uphold the district court injunctions.
On August 11, an 8th Circuit three judge panel issued three per curiam rulings, rejecting the state arguments using almost identical language holding the state bans unconstitutional pursuant to the Obergefell decision and tailoring remedies for the situations presented by each of the states. The panel consisted of Circuit Judges Roger L. Wollman, Lavenski R. Smith, and William D. Benton.
In Rosenbrahn v. Daugaard, the South Dakota case, District Judge Karen E. Schreier had issued a declaratory judgement and a permanent injunction, but stayed the injunction pending appeal. In Jernigan v. Crane, the Arkansas case, District Judge Kristine G. Baker had similarly issued a declaratory judgment and a permanent injunction, staying the injunction pending appeal. In Waters v. Ricketts, the Nebraska case, District Judge Joseph F. Bataillon had not issued a declaratory injunction yet, but had granted the plaintiffs’ motion for a preliminary injunction and the state had filed an appeal from that ruling, with the 8th Circuit staying the preliminary injunction pending ruling on the appeal.
The court of appeals first addressed the issue of mootness. It found that the states’ “assurances of compliance with Obergefell do not moot the case” although the assurances “may, however, impact the necessity of continued injunctive relief.” The court premised its mootness ruling on the precise language that Justice Anthony M. Kennedy had used in his opinion for the Supreme Court, where he said that “the State laws challenged by Petitioners in these cases are now held invalid.” Wrote the 8th Circuit, “The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee” but not explicitly in the three states whose appeals were before the 8th Circuit! Furthermore, the Supreme Court had not directly addressed “all issues raised by Plaintiffs here” and none of the three states had repealed their constitutional amendments or statutory bans on same-sex marriage.
Of course, as none of the states in the 6th Circuit had filed petitions for rehearing with the Supreme Court, the Obergefell case is at an end, and the Supreme Court’s decision creates a binding precedent that the 8th Circuit Court of Appeals must follow. Thus, the court found, it was appropriate to affirm the district court declaratory judgments in South Dakota and Arkansas, and to affirm the preliminary injunction in Nebraska and send that case back to the district court for an entry of final judgment in favor of plaintiffs on the merits.
Turning to the question of injunctive relief, the court of appeals panel felt that it should be up to the district judges in each case to decide whether injunctive relief is warranted in light of post-Obergefell developments. Although the states claimed that they have been complying with the Obergefell ruling, the challenged constitutional amendments and statutes are still on the books, so the court decided it was within the discretion of the district judges to determine whether injunctions are necessary at this point.
Local attorneys were heavily involved in the three lawsuits that were being appealed, all of which had multiple plaintiffs and many organizations filing amicus briefs. In terms of national movement legal involvement, the Nebraska case was brought with the assistance of the ACLU’s LGBT Rights Project and the ACLU of Nebraska and the South Dakota case was brought with the assistance of the National Center for Lesbian Rights. The lists of organizations and attorneys filing amicus briefs actually take up more pages than the brief opinions issued by the court of appeals in these cases.
The next step, of course, will involve filing of motions for the award of attorney fees to the plaintiffs under federal statutes authorizing such awards to prevailing parties in civil rights litigation. It was widely speculated that the states were seeking to have the district court opinions vacated and the cases dismissed at least in part to give them an argument for avoiding having to pay attorney fees to the plaintiffs. The 8th Circuit’s orders affirming the district court decisions should forestall that, since there can be no argument that the plaintiffs are not “prevailing parties,” having obtained the ruling on the merits that they sought. In other parts of the country, several courts have made substantial fee awards to the attorneys who have represented plaintiffs in the marriage equality cases over the past several years, and new awards have begun to be issued in response to post-Obergefell motions.