In a gutsy move, U.S. District Judge Aleta A. Trauger has rejected a request by Tennessee Governor Bill Haslam to stay her order requiring the state to recognize the out-of-state same-sex marriages of three Tennessee couples while Haslam appeals to the U.S. Court of Appeals for the 6th Circuit. Trauger issued a short opinion explaining why on March 20.
Trauger had issued her order in Tanco v. Haslam on March 14, finding that the plaintiffs had shown that they were likely to succeed on the merits of their claim that the state’s refusal to recognize their marriages violates the 14th Amendment of the federal constitution. Without engaging in any extended constitutional analysis in this new opinion, Trauger pointed out that “(1) the post-Windsor courts have uniformly found that bans on the consummation and/or recognition of same-sex marriages are unconstitutional under rational basis review, (2) the court found the reasoning in those cases, particularly Bourke v. Beshear, to be persuasive, and (3) the court found no basis to conclude that Tennessee’s Anti-Recognition Laws would merit different treatment under the United States Constitution than the laws at issue in these other states.” Windsor is, of course, the U.S. Supreme Court’s ruling last June that Section 3 of the Defense of Marriage Act was unconstitutional, and Bourke v. Beshear is the recent ruling by U.S. District Judge John Heyburn holding that Kentucky could not refuse to recognize same-sex marriages contracted out of state. On the other hand, no circuit court of appeals has yet ruled on a marriage equality case since Windsor, although appeals are now pending in several circuits. However, she wrote, “given the unanimity of opinion as to this point in district courts across the country, the court finds no ‘serious question’ as to whether this court conducted an appropriate constitutional analysis in reaching essentially the same conclusion.”
More to the point, Trauger sharply disputed Haslam’s contention that staying the decision would not cause irreparable harm to the plaintiffs, and emphasized the narrow scope of her preliminary injunction, which orders the state to recognize only the same-sex marriages of the three plaintiff couples. Any harm to the state by complying with this order while the state’s appeal goes forward “would not be substantial,” she wrote, “and that harm is unlikely to occur in the first place, because the plaintiffs are likely to succeed.” She also wasn’t convinced by the argument that the “affront” to the “sovereignty” of Tennessee occasioned by compliance with her order would outweigh harm to the plaintiffs, especially the couple who are expecting a newborn child and the other couple who are raising two children together.
Judge Trauger took pains to distinguish this case from the other district court rulings, all of which are now being stayed pending appeal. All of those other cases, she observed, involved statewide relief. That is, if the marriage formation opinions went into effect, as happened briefly in Utah before the Supreme Court granted a stay, hundreds of couples might quickly flock to get married. By contrast, her preliminary injunction only affected three couples. Haslam has failed to show that anybody else would be injured by the enforcement of her Order, and she asserted that “preserving the status quo” pending appeal was not a good enough argument where constitutional rights of the plaintiffs were at stake.
Haslam had announced just a few days earlier that he was appealing the preliminary injunction to the 6th Circuit. That circuit court is already entertaining an appeal from Ohio in a marriage recognition case, and is about to receive an appeal in the Kentucky case, where Judge Heyburn bowed to the concerns of Governor Steve Beshear and stayed his marriage recognition ruling pending the appeal.
Meanwhile, a new same-sex marriage drama is playing out in Oregon, where Attorney General Ellen Rosenblum filed a brief on Tuesday (March 18) with U.S. District Judge Michael McShane, who is presiding over two consolidated same-sex marriage cases, Geiger v. Kitzhaber and Rummel v. Kitzhaber. Rosenblum’s brief for the state argues that the ban on same-sex marriage is unconstitutional, and asserts that the state is ready to start issuing marriage licenses if the court rules that way after hearing oral arguments on a motion for summary judgment by the plaintiffs on April 23. Neither Governor John Kitzhaber nor the other named defendants in that case have indicated any interest in appealing from such a ruling, and so far nobody has petitioned the court to intervene to defend the marriage ban since Rosenblum earlier announced that she would not defend it. The Oregonian, a local newspaper, reported on March 19 that some county clerks have discussed intervening as defendants, but so far nobody has taken that step. Intervention would require approval from Judge McShane, an openly gay man who was appointed to the court by President Barack Obama and confirmed by the Senate last May.
Judge McShane is faced with an interesting set of choices. He could rule promptly after the April 23 hearing, rendering a decision similar to the eight consecutive pro-same-sex marriage decisions issued by federal district courts in other states over the past few months, and make it effective immediately, which would make Oregon the nineteenth state with same-sex marriage if one can count Illinois as the eighteenth because Cook County Clerk David Orr has been issuing licenses under a federal court order and several other county clerks have followed suit. Or, he could rule on the merits for plaintiffs and issue an opinion, but stay his order pending the 9th Circuit’s ruling in the Nevada marriage equality case. This would allow him to make any adjustments necessary to reflect the 9th Circuit’s ruling to be in compliance with circuit precedent. If he wished to be even more cautious, he could hear arguments on April 23 and then wait until the 9th Circuit rules before finalizing his opinion and releasing it, so as to take account of whatever the 9th Circuit decides. The 9th Circuit had previously scheduled oral arguments in the Nevada case for April 9, but then cancelled the argument, reportedly based on a request by one of the assigned judges for more time to prepare. As the 9th Circuit has been deluged with amicus briefs on both sides of the question, such a request is understandable. The 9th Circuit has not as of now announced a rescheduled date, but one assumes it will be relatively soon, given the urgency of deciding this as more district court opinions pile up.