Family Law Legal Research Blog

Windsor Update: Not with a Whimper, but a Bang—U.S. Supreme Court Accepts Same-Sex Marriage Cases

Posted by Gale Burns on Mon, Jan 19, 2015 @ 10:01 AM

Brett R. Turner, Senior Attorney, National Legal Research Group

     Just a few months ago, the U.S. Supreme Court denied review over two same-sex marriage cases, creating a possibility that same-sex marriage might become the law of the land through a series of denials of certiorari, without any further opinions from the Court.

      But the Sixth Circuit then rejected the concept of a broad federal right to same-sex marriage. On January 16, 2015, the Supreme Court accepted petitions for certiorari in four separate same-sex marriage cases, thus agreeing to address directly the Circuit Court split and to decide whether federal law requires recognition of same-sex marriages. The cases will together constitute perhaps the highest-profile litigation in the Court's 2015 term.

     The four cases are Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. All were decided in the Sixth Circuit, which is presently the only Circuit holding that states may restrict the right of same-sex persons to marry.

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Topics: family law, Windsor update, same-sex marriage, certiorari granted

Windsor Update: The Sixth Circuit Creates A Real Circuit Court Split On Same-Sex Marriage

Posted by Gale Burns on Fri, Nov 7, 2014 @ 14:11 PM

Brett Turner, Senior Attorney, National Legal Research Group

           In a long-awaited decision, the Sixth Circuit has ruled on a series of cases involving attacks upon state laws and constitutional provisions preventing recognition of same-sex marriages. DeBoer v. Snyder, No.14-1431 (6th Cir. Nov. 6, 2014). Unlike the Fourth, Seventh, Ninth, and Tenth Circuits, the Sixth Circuit held by a 2-1 majority that such provisions are not unconstitutional.

           The Sixth Circuit ruling is grounded solidly in the fundamental principle of respect for the democratic process. The court began with the premise that all civilized nations refused to recognize same-sex marriage until the very recent past. It recognized that law on this subject was changing rapidly even before the federal courts became involved and that the trend was strongly in favor of increased recognition. Indeed, "[f]rom the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen." Slip op. at 7.

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Topics: Windsor update, split amoung courts, Sixth Circuit

Windsor Update: Not With A Bang, But A Whimper

Posted by Gale Burns on Wed, Oct 8, 2014 @ 10:10 AM

The Supreme Court Denies Review of the Fourth and Tenth Circuit Decisions

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Windsor Update: A Split Finally Develops on Whether States Can Constitutionally Ban Same-Sex Marriage

Posted by Gale Burns on Thu, Sep 11, 2014 @ 17:09 PM

Brett Turner, Senior Attorney, National Legal Research Group 

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Topics: legal research, family law, Brett turner, Windsor, constitutional ban of same-sex marriage, Robicheaux v. Caldwell, E.D. Louisiana, held restrictions are constitutional, sexual orientation not a suspect class, restriction directly related to linking children w, relied on democratic process, held constitutional restrictions not motivated by

Windsor Update: The Seventh Circuit Rules

Posted by Gale Burns on Thu, Sep 11, 2014 @ 13:09 PM

Brett Turner, Senior Attorney, National Legal Research Group

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Topics: legal research, family law, Brett turner, Windsor, Baskin v. Bogan, 7th Circuit, Wisconsin and Indiana constitutions implicated, court held restrictions lack rational basis, sexual orientation is suspect class, Wisconsin argued tradition and democratic process

Windsor Update: Kitchen v. Herbert Headed to the Supreme Court

Posted by Gale Burns on Wed, Jul 30, 2014 @ 16:07 PM

Brett Turner, Senior Attorney, National Legal Research Group

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Topics: legal research, Brett turner, Windsor update, Kitchen v. Herbert, writ of certiorari

Windsor Update: Bostic v. Schaefer—The Fourth Circuit Rules

Posted by Gale Burns on Wed, Jul 30, 2014 @ 15:07 PM

Brett Turner, Senior Attorney, National Legal Research Group

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Topics: legal research, Fourth Circuit, family law, Brett turner, Windsor update, Bostic v. Schaefer, same-sex marriage a fundamental right, no compelling state interest, Niemeyer dissent

Windsor Update: Second-Day Reflections on Tenth Circuit's Opinion in Kitchen v. Herbert

Posted by Gale Burns on Thu, Jun 26, 2014 @ 14:06 PM

Brett Turner, Senior Attorney, National Legal Research Group

     After 24 hours of reflection, the Tenth Circuit's opinion in Kitchen v. Herbert is looking weaker.

     The foundational premise of the majority opinion is that the fundamental right to marriage extends to same-sex couples. This was the critical point of difference with the dissent, which argued that the fundamental right of marriage should not be so extended.

     Why, then, did the majority hold that the right to marriage was fundamental?  The court's reasoning was as follows:

     1.         In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court held that the fundamental right to marriage extends to interracial couples.

     2.         In Zablocki v. Redhail, 434 U.S. 374, 384 (1978), the Supreme Court held that the fundamental right to marriage extends to delinquent child support obligors.

     3.         In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that the fundamental rights to marriage extends to prison inmates.

     4.         Because "the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it," Kitchen slip. op. at 35-36, the fundamental right of marriage is unconditional and extends to everyone.

     Unfortunately, the above reasoning is clearly wrong.  If the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry his or her brother or sister. But no court has ever held, and few commentators have ever argued, that there is a fundamental right to commit incest.

     Likewise, if the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry someone who is already married to someone else. But no court has ever held, and almost no commentators have ever argued, that there is a fundamental right to commit bigamy.

     It is true that the Supreme Court has rarely found that the right to marriage is qualified. But it a fundamental fallacy to assume that the universe of cases coming before the appellate courts is the same as the total universe of cases. Appellate courts hear only a very small portion of the cases heard in the trial courts, and the trial courts themselves hear only a very small portion of the total cases filed. Only the closest cases are heard on appeal. 

     One therefore cannot assume that the fundamental right to marry is unqualified merely because the Supreme Court has rarely found a qualification. It is very possible, and this instance highly likely, that the qualifications are so obvious that no one has been willing to bear the expense of arguing against them at the Supreme Court level. Surely, if the issue were to come before the Supreme Court, the Court would recognize that there is no fundamental right to commit incest or bigamy.

     The primary reasoning process by which the Kitchen court found infringement of the fundamental right to marry is therefore deeply flawed. The fundamental right to marry is not "independent of the persons exercising it." Id. at 36. At a minimum, it does not apply in cases of incest or bigamy. If the fundamental right to marriage is limited in some ways, it can be limited in other ways.

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Topics: legal research, family law, Brett turner, Windsor update, Kitchen v. Herbert, majority opinion erroneous, fundamental right to marriage has qualifications, right to marriage is qualified

Windsor Update: Kitchen v. Herbert—The Tenth Circuit Rules

Posted by Gale Burns on Wed, Jun 25, 2014 @ 16:06 PM

Brett Turner, Senior Attorney, National Legal Research Group

     A panel opinion has been released in Kitchen v. Herbert, the first Circuit Court case to decide the same-sex marriage issue after Windsor. The opinion holds that Utah's constitutional and statutory provisions barring same-sex marriage are an unconstitutional denial of due process.

     The majority reasoned that the right to marriage is fundamental and exists without any reference to any characteristics of the parties whose marriage is being regulated. In support, it cited case law holding that the right to marry applies to interracial couples, delinquent child support obligors, and prison inmates. From these cases, it extracted a general principle that the right to marriage is inherently and necessarily universal. "We cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have discussed, the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it." Slip op. at 35-36.

     The majority opinion lacks some of the eloquent rhetoric on the policy reasons for permitting same-sex marriage that has marked some of the previous district court opinions.  The key passage is rather dry and technical, concluding that because the right to marry has been extended to such a wide variety of opposite-sex couples, it is universal and must therefore apply to same-sex couples.

     The court expressly rejected the argument that the validity of same-sex marriage should be decided by the electoral process.

Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. "One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

Id. at 62. 

     The dissenting opinion is the first federal opinion to argue that there should be no federal right to same-sex marriage. It stressed that the future of same sex marriage should be decided by elections, not by judges. "If the States are the laboratories of democracy, requiring every state to recognize same‑gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head." Dissent at 2.  The opinion identifies three reasons why the right to marriage does not extend to same-sex couples:

First, same‑gender marriage is a very recent phenomenon; for centuries "marriage" has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term "marriage" as used in those cases had any meaning other than what was commonly understood for centuries. Courts do not decide what is not before them. That the Court did not refer to a "right to interracial marriage," or a "right to inmate marriage" cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue.

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Topics: legal research, family law, Brett turner, Kitchen v. Herbert, 10th Circuit, Utah Constitution and statutes unconstiutional, majority concludes that right to marriage is unive, minority states no federal right, a fundamental right is grounded in history and tra

Choice-of-Law Issues After United States v. Windsor

Posted by Gale Burns on Wed, May 21, 2014 @ 17:05 PM

Brett Turner, Senior Attorney, Family Law, National Legal Research Group

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Topics: legal research, family law, United States v. Windsor, choice of law

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