The lack of any big LGBT court decision over the past week or so, together with the beginning of the Jewish High Holy Days, explains why I haven’t posted anything on this blog since August. But things have definitely not been standing still in the ongoing marriage equality campaign.
The biggest deal has probably been the gradual rolling out of federal constitutional recognition for same-sex marriages in the wake of U.S. v. Windsor, the June 26, 2013, Supreme Court decision striking down Section 3 of the Defense of Marriage Act, which had adopted for the federal government a strictly different-sex definition of marriage. The Court held that a federal policy refusing recognition to same-sex marriages contracted under state law violated the “equal liberty” guaranteed by the 5th Amendment. Whether that was essentially a due process holding or an equal protection holding will be debated among legal scholars and lower courts for some time to come. It sounds to me like a conflation of the two, so it can be construed both ways, also taking into account the federalism concerns that Justice Anthony Kennedy mentioned in his opinion for the Court but did not explicitly rely upon in making the decision; this, of course, despite Chief Justice John Roberts’ assertions to the contrary, which were deftly rejected by Justice Antonin Scalia. Scalia insisted that the Court’s eschewal of having decided the underlying question whether same-sex couples have a constitutional right to marry was all for show, and that Kennedy’s opinion gave lower courts a guidebook for ruling in favor of marriage equality litigants. A handful of trial court decisions since June 26 would tend to confirm this.
Most prominently, a federal district judge in Ohio has now twice ordered state authorities to recognize same-sex marriages contracted elsewhere, and several state trial judges have ordered county clerks in New Mexico to issue marriage licenses to same-sex couples, albeit premising those orders on state constitutional and statutory construction. (New Mexico has neither amended its constitution nor its marriage laws to expressly prohibit same-sex marriages, and the operative provisions of the marriage statute may lend themselves to gender-neutral interpretation.) The Ohio case is particularly interesting in that the judge found no cause to evaluate the effect of Section 2 of DOMA, not addressed by the Supreme Court in Windsor. Section 2 purports to relieve states from any obligation to extend “full faith and credit” to same-sex marriages contracted elsewhere. The judge premised his ruling instead on the 14th Amendment’s Equal Protection Clause, finding no rational basis for Ohio to refuse to recognize same-sex marriages when there is precedent that the state recognizes different-sex marriages contracted elsewhere that could not have been contracted in Ohio due to consanguinity or age.
There was also a pair of decisions by federal judges in Michigan relying upon Windsor in disputes concerning same-sex couples, one over state employee domestic partner benefits, the other in a suit challenging the lack of second-parent adoptions, in which the judge invited the parties to put the constitutionality of Michigan’s same-sex marriage ban directly in play. These two Michigan rulings were on pretrial motions and did not go to the ultimate merits of either case, but strongly suggested, in light of Windsor, among other precedents, that plaintiffs would probably prevail. A federal judge in Pennsylvania also ruled in a pending employee benefits dispute, depending upon the demise of Section 3 of DOMA to rule that a same-sex marriage should be recognized for purposes of a federally-regulated employee benefit plan providing benefits to the surviving spouse of an employee. The case brought the interesting complication that the couple married in Canada and resided in Chicago, where the deceased was a partner in a Pennsylvania-based law firm’s Chicago office. Although Illinois is not yet a marriage equality jurisdiction, the court found that the state’s Civil Union Act would treat this Canadian marriage as confering spousal status, through a somewhat strained interpretation of the Illinois law. The decedent’s parents, who initially supported appealing the court’s decision, then changed their minds, to we will not be getting an appellate ruling on this case.
The New Mexico developments led Republican legislators to intervene, as well as the state’s organization of county clerks, and the state’s Supreme Court, which at first fought shy of getting involved, has changed course and announced it will hear oral arguments from various marriage equality litigations on October 23, with the idea of issuing a definitive ruling that could have statewide effect. (As of this writing, eight county clerk offices were issuing licenses, mostly in response to local court orders.) The state’s attorney general has announced support for the trial court rulings, leaving it to Republican legislators to make the argument to the Supreme Court that the existing legal regime is rational in excluding same-sex couples from marriage, which becomes a difficult argument in light of Windsor.
The Treasury Department and Internal Revenue Service gave a big kick to federal marriage recognition by announcing that lawfully married same-sex couples would be recognized as married for all federal tax purposes, even if they lived in states that did not recognize their marriages. Some other federal agencies were less expansive in their approach, such as the Labor Department, which announced that same-sex spouses would be recognized under the Family and Medical Leave Act, but fought shy of articulating a position on applicability to employers in states that don’t recognize same-sex marriages. Initially, the Veterans Affairs Department claimed to be limited by statutory language from recognizing same-sex marriages, but then a federal judge in California ruled that the relevant statutory language suffered the same constitutional defects as Section 3 of DOMA, and Veterans Affairs promptly came around. The Defense Department had announced directly after Windsor that it would come up with a recognition policy, and put the policy into effect on September 3, retroactive to June 26, with subsequent reports that implementation seems to be going smoothly. DoD will recognize same-sex marriages lawfully contracted, regardless where the service members are living. A soldier recently married to her partner in New Mexico with a license from one of the county clerks there has just obtained the relevant military spousal ID card for her wife, after some initial hesitation by local military officials who were concerned that the New Mexico licenses might yet be held invalid by the state’s Supreme Court. National Guard members have encountered problems when based in states that don’t recognize same-sex marriages. Right out of the box, Guard officials in Texas, Mississippi and Louisiana announced that they would not process applications for spousal ID cards and benefits for their married gay members, although governors in some other states — most notably Arkansas and Virginia — reflecting that federal money pays most of the costs of National Guard operations and they are supposed to follow federal Defense Department policies, indicated they would comply. Guard members in the resistant states were told that they should apply for the benefits to federal authorities. Lawsuits seem likely here.
In addition to a New Mexico clerk who started off the “civil disobedience” by issuing licenses without a court order, a county official in Montgomery County, Pennsylvania, also began issuing licenses, prompting a lawsuit from the state Health Department on top of the marriage equality lawsuit already filed against the state by the ACLU (for which the attorney general announced she would not defend the state’s existing marriage exclusion) . Of course, there were already lawsuits pending in several other states — Hawaii, Nevada, New Jersey — and the ACLU was moving in North Carolina to expand an existing second-parent adoption suit to encompass marriage equality claims. New lawsuits were also filed in Arkansas, Virginia, South Carolina with others expected. . . It appears that litigation over marriage equality will stay in the headlines for the foreseeable future until some case makes it to the U.S. Supreme Court were a final resolution will be sought.
From mid-October to early November 2013 may mark the next major wave of developments leading to an actual expansion of marriage equality to new states. The governor of Hawaii has called a special session of the legislature to consider a marriage equality bill that was introduced at his request in August. Since he had previously announced that he would not call a special session unless passage looked likely, that was a good sign. A major incentive for the Hawaii legislature to act is the pending 9th Circuit consideration of a marriage equality case now on appeal. By passing the bill — which includes religious exemption language calculated to satisfy those who are alarmed that religious organizations might be compelled to violate their beliefs — the legislature would forestall the possibility that a federal court will just order them to allow same-sex marriages without having enacted such religious liberty “safeguards.” Perhaps the same possibility will motivate Illinois House members, who may be asked to vote on the pending S.B. 10 (already approved by the Senate earlier this year) during the “veto session” of the legislature scheduled during the same October-November time period. A summary judgment motion was argued during August in the pending New Jersey marriage equality case; once again, New Jersey legislators could forestall the possibility of a court order by voting to override the governor’s veto of a bill they had previously passed, which also contains religious exemption language. Barring that, however, a Superior Court ruling in favor of marriage equality would undoubtedly be appealed by the state government, so resolution before the end of this year would not come from the courts.
If Justice Scalia is correct in predicting that lower federal courts and state courts are going to seize upon language in Windsor to find a constitutional right for same-sex couples to marry, it would make sense for all state legislatures to get out in the field and enact marriage equality statutes incorporating whatever measures they deem suitable for anticipating possible classes over religious liberties. While these exemptions will themselves probably face some court challenges, depending how broadly they are written and administered, it would seem to be a bad strategy for legislatures to ceded this battleground to the courts in advance, and leave to chance judicial protection for religious liberty rights in the wake of an appellate ruling requiring them to allow same-sex couples to marry.
The current scorecard: LGBT news blogger Rex Wockner, trying to keep track of marriage quality jurisdictions, provides this data for the United States: Current marriage equality jurisdictions are Massachusetts, California, Connecticut, Vermont, Iowa, New Hampshire, Washington DC, New York, Maine, Maryland, Washington State, Delaware, Rhode Island, Minnesota, 8 counties in New Mexico, and four Native-American tribes. As to other countries, Wockner now lists the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Iceland, Portugal, Denmark, France, Brazil, Uruguay, New Zealand, and England and Wales (to be implemented between now and mid-2014), and several states in Mexico, including the capital district.