Family Law Legal Research Blog

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.

          But to the court, this was a reason to proceed carefully. The democratic process is working; the law is changing to reflect the will of the people. The issue before the court was "whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples." Id. at 8. The holding of the court was that the democratic process should be permitted to continue.

           On the law, the court began by holding that the issue was controlled by Baker v. Nelson, 409 U.S. 810, 810 (1972), which dismissed an early case raising the same-sex marriage issue for lack of a substantial federal question—a dismissal that operates as an adjudication on the merits. The consensus of other courts is that Baker has been overtaken by decades of decisions recognizing increased rights for gay people. But the DeBoer court held that Baker is controlling until the Supreme Court holds otherwise.

          In the alternative, the court held that the restrictions at issue were constitutional even if Baker was not controlling. In light of the long tradition of allowing only opposite-sex couples to marry, same-sex marriage was not a fundamental right.

           Sexual orientation is not a suspect classification. "The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades. There are ample reasons for staying the course." Id. at 32. In particular, states do not discriminate against gay persons by maintaining restrictions upon same-sex marriage with a long historical tradition.

           Restrictions upon same-sex marriage are not motivated by antigay animus. Indeed, many of these laws were approved in direct elections. "If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence." Id. at 26.

          Given the absence of a fundamental right or a suspect classification, the court applied rational basis review. "A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States." Id. at 19. The court found two particular rational bases for restrictions upon same-sex marriage. First, the government has an interest in regulating human procreation:

         People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.

 Id. at 20.

           Second, the states are permitted to proceed cautiously when considering changes to rules as longstanding as prohibitions on same-sex marriage:

 [A] State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. . . . How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage?

 Id. at 21.

          Because rational-basis review applied, and because a rational basis was present, the restrictions under review were not unconstitutional.

           DeBoer is the most complete justification yet advanced for holding that there is no broad federal right to same-sex marriage. The opinion is grounded very solidly in respect for the democratic process, which this blog has generally assessed as the strongest point in the argument against a federal right to same-sex marriage. It cleverly uses the increasing popularity of same-sex marriage as a favorable point, arguing that the success of the democratic process in defeating restrictions on same-sex marriage is a good reason to permit that process to continue.

           If the strong point of the opinion is procedure, the weak point is the point and purpose of the procedure. The court admits that restrictions upon same-sex marriage are falling rapidly in both state legislatures and state elections. Realistically, at present rates, these restrictions will be abandoned by a strong majority of states within the next 10 years. Once the state law support for same-sex marriage reaches the two-thirds level, it will be hard to distinguish same-sex marriage from interracial marriage, which states are required to allow. Loving v. Virginia, 388 U.S. 1 (1967).

          DeBoer's paeans to procedure are therefore sung in support of a very weak substantive right. Procedure is important, but it is less important when the substantive outcome is obvious. The great majority of federal opinions recognizing a federal right to same sex marriage are not so much wrong, as premature. Ten or twenty years from now, same-sex marriage will probably be recognized everywhere, and DeBoer does not really deny this. The end result is a rather curious disparity between procedure and substance. The court insists, probably correctly, that opponents of same-sex marriage get one more appeal to the democratic process—but it openly recognizes that opponents are highly likely to lose that appeal.

          DeBoer's open recognition that the substantive debate is tilting heavily toward same-sex marriage is somewhat inconsistent with its earnest insistence that the democratic process be followed. Decisions reaching the opposite result are procedurally suspect at present levels of state law support for same-sex marriage, but they will be steadily less suspect as public support for same-sex marriages increases. The judges who wrote these decisions are essentially relying on the strength of the substantive argument to overcome procedural weakness.

          The proponents of same-sex marriage who lost in DeBoer could appeal to the Sixth Circuit en banc. But it seems more likely that they will file an immediate appeal to the Supreme Court, which has already refused to overturn Fourth and Tenth Circuit decisions finding a federal right to same-sex marriage. With a real Circuit Court split now the books, the chances would appear to be good that the Supreme Court would accept the case.

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

      The United States Supreme Court has denied without comment the pending petitions for certiorari to review the Fourth and Tenth Circuit decisions holding that federal law requires state to recognize same-sex marriage.

     Since it takes only four votes to grant a petition for certiorari, and Windsor was a 5-4 decision, at least one of the dissenters must have acquiesced in the denial of review.

     From the standpoint of the Windsor majority, the action is not surprising. It effectively recognizes a federal right to same-sex marriage, without forcing the Court to resolve on the record a very contentious social issue. In fact, the majority can claim that it is only acquiescing in a step taken by the great majority of federal judges who have heard the issue, including all Circuit Court decisions to date. Denial of review creates an impression that the argument for a federal right to same-sex marriage has been accepted by so many judges, and is so obviously correct, that the Court need not even take time to address the issue.

      The majority's denial of review does amount to a gamble on the health of Justice Ruth Bader Ginsburg, who has been somewhat dismissive of her own mortality and prone to underestimate the likelihood that President Obama could get a nominee with views similar to her own confirmed in the Senate. The nightmare scenario for supporters of gay marriage is that the Court finally agrees to hear the issue (probably in an appeal from a Circuit Court decision rejecting a federal right to same-sex marriage), Justice Ginsburg then leaves the court, and the court is left with an equal 4-4 split. A Republican president then appoints a conservative justice who breaks the tie by rejecting a federal right to same-sex marriage.

     The issue is more interesting from the viewpoint of the Windsor dissent. The most logical explanation is that the crucial swing vote, Justice Kennedy, was clearly inclined to affirm the Fourth and Tenth Circuit decisions. If the dissenters knew that they were likely to lose, there was no point in pressing to have the issue heard. Indeed, delay raises the possibility that the composition of the Court might change in a way favorable to the dissent's position.

      Another interesting possibility is that Chief Justice Roberts, who is known to be sensitive to the Court's reputation, was reluctant to have the Court take a position that will probably not be viewed well in hindsight. Public opinion favors same-sex marriage, but the margin is growing rapidly and is especially large among young people. Any opinion rejecting a federal right to same-sex marriage could well be viewed by history as the doomed last stand of antigay bigotry. It is understandable that a Justice concerned with the Court's historical reputation would prefer to avoid having the Court issue such an opinion.

     Still another aspect of the denial is whether it will have any effect on the pending Sixth Circuit case. The media reported that oral argument did not go well for proponents of same-sex marriage. But the denial suggests fairly strongly that the Windsor dissenters knew that their position would not command a majority. It may reduce somewhat the likelihood that the Sixth Circuit will take a position different from the Fourth, Seventh, and Tenth Circuits.

     If the Sixth Circuit opinion does reject a federal right to same-sex marriage, there would then be a true Circuit split that the Court would have to resolve. But one can easily see the Windsor majority reasoning that it could address such an opinion when it arises, and that in the short term it is actually a more powerful statement in favor of same-sex marriage to deny review. One can easily see the Windsor dissent reasoning that the possibility of a victory tomorrow, if the composition of the Court changes, is worth more than a defeat today, even if accompanied by a strong dissent. So the Court's denial of review is not illogical.

     The final fate of this issue depends upon how the Sixth Circuit rules. If the Sixth Circuit creates a split, the Supreme Court showdown has merely been postponed. If the Sixth Circuit follows the Fourth, Seventh, and Tenth Circuits, there may not be a showdown at all, and the Court may effectively create a federal right to same-sex marriage simply by consistently refusing to hear appeals arguing otherwise.

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 

     The Fourth, Seventh, and Tenth Circuits have all held that all state law restrictions upon same-sex marriage are unconstitutional and invalid. A large number of district courts have reached this result as well.

     But one federal district court decision has finally held that restrictions upon same-sex marriage are constitutional. In Robicheaux v. Caldwell, No. CIV.A. 13-5090, 2014 WL 4347099 (E.D. La. Sept. 3, 2014), the court rejected an attack upon Louisiana's constitutional provision
barring same-sex marriage.

     Unlike the Seventh Circuit decision, Robicheaux expressly rejected the argument that sexual orientation is a suspect class, noting that controlling Fifth Circuit decisions had refused several opportunities to reach this result. It further held that "there is simply no fundamental right, historically or traditionally, to same-sex marriage." Reasoning that Windsor "starkly avoids mention of heightened scrutiny," id. at *3, the court refused to apply any form of heightened scrutiny. The court relied heavily on that portion of Justice Kennedy's opinion stressing the long history of marriage as an issue controlled predominantly by state law.

     The court then held that the restriction at issue was "directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents." Id. at *6. This is a deeply questionable result, which has been rejected by nearly every other federal court to consider the issue. There is essentially no credible evidence that straight persons are better parents than gay parents, or that linking children to gay biological parents is any less important than linking children to straight parents. The entire child-welfare argument in support of restrictions upon same-sex marriage is somewhere between odd and strange, and the better defenses of restrictions upon same-sex marriage have minimized reliance upon it.

     On more solid ground, the court also relied upon the respect for the democratic process. "The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid." Id. The court elaborated:

[I]t is not for this Court to resolve the wisdom of same-sex marriage. The nation is witness to a strong conversation about what is marriage. The central question that must first be asked, is what is the fairest forum for the answer? A new right may or may not be affirmed by the democratic process. "Perhaps someday same-gender marriage will become part of this country's history and tradition, but that is not a choice this court should make." Id. at
1234. 

Id. at *10 (footnote omitted) (citing Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (Kelly, J., dissenting)).

     The court likewise held that Louisiana's restrictions were not motivated by prejudice against gay persons:

The Court also hesitates with the notion that this state's choice could only be inspired by
hate and intolerance. Louisiana unquestionably respected "a statewide deliberative process that allowed its citizens to discuss and weigh arguments for and against same-sex marriage."See Windsor, 133 S.Ct. at 2689. All sides for and against grappled with this solemn issue. The Court declines to assign an illicit motive on the basis of this record[.]

Id. at *6. "Although opinions about same-sex marriage will understandably vary among the states, and other states in free and open debate will and have chosen differently, that does not mandate that Louisiana has overstepped its sovereign authority." Id.

     Robicheaux makes a strong argument that a rational basis exists for state provisions restricting same-sex marriage. It is unfortunate that the court accepted the child-welfare argument, but basic respect for the democratic process suggests that views held by a significant majority of American states should rarely be found irrational.

     The weak point is the court's determination that rational basis was the proper standard of review. The Seventh Circuit in Baskin made a compelling argument that sexual orientation should be a suspect class, an argument which is clearly correct in areas of law other than same-sex marriage. Robicheaux never truly came to terms with Loving, which held that state law on who can marry is subject to federal anti-discrimination principles. While Loving can be distinguished based upon differing levels of public support for interracial marriage in 1967 and same-sex marriage in 2014, this argument will stop working when opposition to same-sex marriage declines to a certain level, and that point in time may be only a few years away.

     Part of the confusion regarding the standard of review must be laid squarely in the lap of Justice Kennedy, who seems to delight in issuing equal protection opinions on family law issues which do not expressly state a standard of review. He wrote such an opinion not only in Windsor, but also in Lawrence v. Texas, 539 U.S. 558 (2003). Any law student failing to define the standard of review before analyzing an equal protection problem would likely receive a failing grade. Justice Kennedy's failure to state the standard of review in both Lawrence and Windsor has added materially to the difficulties faced by later cases. 

     It will be interesting to see how Robicheaux is treated by other federal courts. At a minimum, the case establishes that there is now a federal court split on same-sex marriage, and it probably increases modestly the chance for Supreme Court review.

___________________________

Update: In response to the comment below, I agree that a split at the circuit court level is more likely to result in Supreme Court review than a split at the district court level. But I do think that even a district court split somewhat increases the chances of Supreme Court review, as compared to no split at all.

     The most recent federal district court decision to find a right to same-sex marriage, Majors v. Jeanes, No. 2:14-CV-00518 JWS, 2014 WL 4541173 (D.Ariz. Sept. 12, 2014), lists three district court opinions as rejecting a right to same sex marriage.  Id. n.18.  In addition to Robicheaux, the other two opinions are Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1018 (D. Nev. 2012), and Merritt v. Attorney General, No. 13-00215-BAJ-SCR, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) (only Westlaw available). 

     Sevcik was decided before the Supreme Court decision in Windsor and therefore is of limited value. Merritt is a summary affirmation of a magistrate's ruling, from which the appellant failed to file objections within the required 14-day period.  The opinion is extremely short, does not even cite Windsor, and a dismissal on purely procedural grounds would have been completely appropriate.

     Footnote 18 in Majors cites eight district court cases as finding a right to same-sex marriage, most of which are now on appeal.

     In public comments on September 16 at the University of Minnesota law school, Justice Ruth Bader Ginsburg suggested that there was "no urgency" for the Supreme Court to hear the same-sex marriage issue without a Circuit Court split.  But Justice Ginsburg was in the majority in Windsor, and she is generally expected to rule in favor of same-sex marriage.  It takes only four votes to grant a petition for certiorari, and there were four dissenters in Windsor—Justices Alito, Scalia, and Thomas, plus Chief Justice Reynolds.  So even if Justice Ginsburg prefers to wait for a Circuit Court split, it is very possible that four more conservative judges might prefer to hear the issue sooner.  On the other hand, it is also possible that even judges opposing same-sex marriage might prefer to wait for a split, as a split would provide more support for a Supreme Court decision rejecting a right to same-sex marriage.

     Perhaps most significantly, there are media reports that proponents of same-sex marriage did not fare well in oral argument before the Sixth Circuit in four cases heard in early August.  Some of these reports may result from a desire on the part of the media to portray the issue as close, in order to generate sales of newspapers and clicks on web sites.  But if media reports are correct, there is a real possibility that a genuine Circuit Court split could develop.

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

     Petitions for Certiorari have now been filed in the United States Supreme Court from both the Fourth and Tenth Circuit decisions holding that restrictions on same-sex marriage are unconstitutional. The Court has not yet ruled on either petition. The Fourth Circuit opinion is discussed here; the Tenth Circuit opinion is discussed here and here.

     Meanwhile, the Seventh Circuit has taken the same position as the Fourth and Tenth Circuits. In Baskin v. Bogan, No. 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014), the Seventh Circuit held that state provisions limiting the right to same sex marriage are not constitutional. The case involved restrictions on same-sex marriage in both the Indiana and Wisconsin constitutions.

     Baskin began with the premise that provisions barring same-sex marriage discriminate against gay persons, who are a suspect class. Therefore, "more than a reasonable basis is required" in order to uphold such provisions. The court rejected a series of arguments that restrictions upon same-sex marriage are justified by concerns of child welfare, and held that the necessary strong justification had not been proven.

     Wisconsin further argued that tradition and deference to the democratic process supported restrictions upon same-sex marriage. This is the argument which the author of this blog finds
most persuasive. The court rejected the argument, specifically relying upon Loving v. Virginia, 388 U.S. 1 (1967), which invalidated restrictions upon interracial marriages. But as this blog has previously noted, only 15 states refused to allow interracial marriage at the time of Loving.
By contrast, 33 states presently refuse (absent federal court compulsion) to recognize same-sex marriage. The level of state law support for interracial marriage is 1967 was much higher than the level of public support or same-sex marriage in 2014. This fact substantially distinguishes Loving.

     While Baskin held that more than a rational basis is needed to support restrictions upon same-sex marriage, it ultimately held that those restrictions do not survive even rational basis review.

     Like most other decisions finding that states cannot constitutionally bar same-sex marriages, Baskin seems untroubled by the notion that three federal judges can almost casually hold that a policy position very strongly supported by a strong majority of American states (33 out of 50) is irrational and invalid. The author continues to believe that this notion is more dangerous than the courts think. In a nation that which purports to be federalist republic run upon democratic principles, the opinion of the voters should not so lightly be cast aside.

     But this criticism applies mostly to the court's holding that restrictions upon same-sex marriage lack a rational basis. The author is inclined to accept the argument that tradition and respect for the democratic process provide a rational basis for restrictions upon same-sex marriage, when those restrictions are in place in a majority of states. (This proviso distinguishes Loving, as restrictions upon interracial marriage were very much a minority rule in 1967.)

     But a different set of concerns is raised when fundamental rights and suspect classes are involved. Baskin deliberately refused to rule on whether marriage is a fundamental right, but it
did hold that sexual orientation is a suspect class. Moreover, the court noted several times that public opposition to same-sex marriage is steadily shrinking. Indeed, such opposition is under 50%, and may not be too far removed from the level of state opposition to interracial marriage in 1967.

     This public opposition has not translated into state law change, partly because the change in opposition is recent, but mostly because restrictions upon same-sex marriage have been written into state constitutions to a degree to which restrictions upon interracial marriages were
not. But while the courts should be inclined to respect the settled opinion of the voters, it is not so important that the courts allow use of state constitutions to perpetuate restrictions upon fundamental rights, even after they lose majority support, merely because they have been written into state constitutions. The strongest part of the argument against restrictions upon
same-sex marriage is that 33 states have enacted such restrictions. The weakest part of the argument is the large and growing gap between support in state law and support in public opinion.

     Because Baskin did find that a suspect class was involved, a mere rational basis was not enough to support the measures under attack. Given that opposition to same-sex marriage is under 50% and shrinking, it is not unreasonable to conclude that the measures under review lacked the strong support necessary to justify measures that burden a suspect class. But the court went too far in holding that the restrictions lacked a rational basis.

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

     The State of Utah has announced that it will not seek rehearing en banc in Kitchen v. Herbert, No. 13–4178, 2014 WL 2868044 (10th Cir. June 25, 2014), and will instead file a writ of certiorari to the United States Supreme Court. The petition is due by September 23, 2014.

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

     A panel opinion has been released in Bostic v. Schaefer, the second Circuit Court case to decide the same-sex marriage issue after Windsor. The opinion holds by a 2-1 margin that Virginia's constitutional and statutory provisions barring same-sex marriage are unconstitutional. Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, 2014 WL 3702493 (4th Cir. July 28, 2014).

     Like the Tenth Circuit majority opinion reaching the same result, Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014), the Fourth Circuit majority opinion finds that same-sex marriage is a fundamental right. The court denied that it was creating a new right, instead holding that the already-recognized fundamental right of marriage applies to same sex-couples. "Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms." Id. at *9. The Supreme Court's "cases do not define the rights in question as 'the right to interracial marriage,' 'the right of people owing child support to marry,' and 'the right of prison inmates to marry.' Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right." Id.  "If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed." Id.

     Because the right to marriage was fundamental, it could be restricted only in the presence of a compelling state interest. The court rejected the argument that Virginia had a federalism-based right to define marriage however it wished, emphasizing a passage from Windsor stating that state law restrictions on marriage must respect constitutional rights. "Windsor does not teach us that federalism principles can justify depriving individuals of their constitutional rights; it reiterates Loving's admonition that the states must exercise their authority without trampling constitutional guarantees." Id. at *11.

     The court further rejected the much more questionable arguments that restrictions upon same-sex marriage are justified by following history and tradition, safeguarding the institution of marriage, encouraging responsible procreation, and promoting optimal child-rearing.

     Like Kitchen, Bostic contains remarkably little rhetoric on the positive policy value of recognizing a fundamental right to same-sex marriage. It fundamentally concludes that because the Supreme Court has extended the right to same-sex marriage to some groups of persons, the right applies to everyone.

     But as this blog has noted previously, the fundamental right of marriage does not apply to everyone. In particular, it almost certainly does not extend to persons who wish to enter into incestuous or bigamous marriages. Why do same-sex marriages fall into the same category as opposite-sex marriages, and not into the same category as incestuous or bigamous marriages? The court gave the following answer:

Lawrence [v. Texas] and Windsor indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships. We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of a different race, owes child support, or is imprisoned.

Id. at *10. The court therefore read recent Supreme Court case law broadly to suggest that same-sex persons enjoy the same set of fundamental rights as opposite-sex persons. This is a satisfactory technical answer.

     Still, the opinion would have been stronger if the court had stressed the remarkable change in public attitudes toward same-sex marriage occurring over the past decade. That change, more than any factor, is the reason why same-sex persons now have the same fundamental rights as opposite-sex persons. If this change in fundamental rights comes only from the policy preferences of judges, then judges have the power to rewrite the Constitution at will. The author is not a constitutional originalist, but he finds the notion of unlimited judicial power to rewrite the Constitution very troubling. Extending the fundamental right to marriage to same-sex couples is a fundamental change in American constitutional law, and it must be supported by something more than the policy preferences of judges.

     Judge Niemeyer dissented, becoming the second federal judge to write an opinion that would allow states to restrict same-sex marriage. (The first opinion was Judge Kelly's dissent in Kitchen.) The dissenting opinion expressly noted the majority's failure to explain why its expansive definition of the fundamental right to marry does not extend to incestuous or bigamous marriages. The answer, logically, is that public support for same-sex marriage is strong and growing, especially among young people, while public opposition to incestuous and bigamous marriage is as strong as ever. Because the majority opinion failed to emphasize public opinion, the dissent won some debating points on the fundamental right to marriage issue.

     More troubling, the dissent seemed to accept the arguments that same-sex marriage threatens procreation and encourages irresponsible child-raising. Based on these concerns, the dissent stated that "there exist deep, fundamental differences between traditional and same-sex marriage." Id. at 24. This portion of the dissent expresses views that a majority of Americans might well find to approach bigotry. Americans are increasingly rejecting the motion that same-sex marriage is different from opposite-sex marriage; that is why public opposition to same-sex marriage has dropped so sharply in recent years. Parts of the dissent seem to fall into the same trap as the majority: defining fundamental constitutional rights in terms of the personal policy views of judges.

     A legal realist might claim that there is no way for judges to determine what rights are fundamental, other than to look at their own policy preferences. But there are ways to measure the "fundamentalness" of a right more objectively. This blog previously looked at two such sources: the number of states recognizing a right under state law, and the support for the right in public opinion surveys. The former measure suggests that the right to same-sex marriage is not yet fundamental; the latter measure suggests that the right probably is close to being fundamental.

     After finding that the right to same-sex marriage was not fundamental, the dissent then argued that Virginia's restrictions upon same-sex marriage have a rational basis and are therefore constitutional.

     Comparing Judge Kelley's dissent in Kitchen with Judge Niemeyer's dissent in Bostic, the author finds Judge Kelly's dissent stronger. Judge Kelly's dissent was based more clearly on federalism concerns, arguing that the debate over same-sex marriage should be resolved by elections and not by federal judges. This is by far the strongest argument against recognition of a fundamental right to same-sex marriage. Judge Niemeyer, by contrast, seemed to be more influenced by personal distaste for same-sex marriage, a distaste which is increasingly not shared by his fellow citizens. For opponents of a fundamental right to same-sex marriage to gain any ground in public opinion, they must articulate a solid legal argument without veering into bigotry. That is a fine line to walk, and Judge Kelly walked it better than Judge Niemeyer.

     Looking forward, it is a defeat for opponents of same-sex marriage that they won only one panel vote in the Fourth Circuit. The Fourth Circuit is generally conservative, and it is one of the Circuits originally seen as most likely to reject a fundamental right to same-sex marriage. It will be interesting to see whether the appellants file a petition to have the case heard en banc, and if so, how the entire Fourth Circuit will rule.

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.

     The Kitchen majority should not have held that the fundamental right to marriage extends unconditionally to everyone. It should have recognized that the fundamental right to marriage is limited in various ways, and have focused upon determining whether a restriction based upon the sex of the parties is one such way.

                                                                      * * * * *

     The flaws in the reasoning of Kitchen do not mean, of course, that the result reached was wrong. The court convincingly demolished Utah's argument that marriage is all about procreation and not about love. But procreation has always been the weakest part of the argument against a federal right to same-sex marriage. 

     The strongest part of the argument against a federal right to same-sex marriage is the position taken squarely by the dissent: Judges cannot create a fundamental right under the Due Process Clause merely because they believe it to be good policy. In order to become fundamental, a right must have a strong basis of support from factors other than the judiciary's own policy preferences. The dissent's strongest point against the majority was that the majority identified few sources of support, other than the policy preferences of itself and other judges, for a landmark extension of the fundamental right to marriage.

     It is difficult to define exactly what sort of support a right needs to become fundamental. The dissent recognized that "history and tradition" are sufficient, Dissent at 9, but neither history nor tradition supports extending the fundamental right to marry to same-sex couples.

     Yet there are cases in which a right was recognized as fundamental despite an absence of history and tradition. In the domestic relations field, the classic examples are Loving and Lawrence v. Texas, 539 U.S. 558 (2003) (holding the Texas sodomy statute unconstitutional), both of which struck down provisions supported by considerable history and tradition. But as yesterday's post noted, at the times these decisions were handed down, the challenged provisions existed only in 28-30% of the states. A strong majority of states presently refuse to allow same-sex marriage.

     A better analogy might be the landmark civil rights cases of the late 1950s and early 1960s. These cases adopted broad theories of nondiscrimination which did not have strong support in existing state law. For example, when the Supreme Court held that segregated schools were unconstitutional in Brown v. Board of Education, 347 U.S. 483 (1954), most schools across the country were segregated. But there was a strong and growing sense in public opinion that discrimination by race was wrong, and that schools should be color-blind. The Brown opinion was not based only upon the policy preferences of the judges; it was based upon strong and growing public sentiment that the right to a good education ought to be color-blind.

     What the Kitchen majority needed to do, therefore, was to provide more support outside the judiciary itself for holding that the fundamental right of marriage extends to same-sex couples. It could have spoken of the long-term trend toward abolishment of all forms of discrimination against gay and lesbian persons. It could have traced the history of that trend through such landmark cases as Romer v. Evans, 517 U.S. 620 (1996), Lawrence, and Windsor. It could have provided compelling statistical evidence that a majority of the American people support same-sex marriage, such as the public opinion surveys cited in yesterday's post. It could have noted the overwhelming support for same-sex marriage among young people, and noted the exceptionally steady shrinking of public opposition to same-sex marriage.

     But in a direct sense, the Kitchen majority opinion did very little of this. As noted yesterday, the majority avoided the grand rhetoric present in some of the district court opinions on the issue, including even the decision under review. The closest it came was a section expressing general agreement with other cases that have employed such rhetoric, slip op. at 32, and, even then, the court did not quote much of the rhetoric.

     As a result, the Kitchen majority opinion falls flat. It relies primarily upon a provably false assertion that the fundamental right to marriage is completely unconditional. It fails to summon the forces of history, tradition, and especially public opinion in the manner common to decisions that recognize or expand a fundamental right. As opinions in favor of same-sex marriage go, Kitchen is surprisingly and unexpectedly weak.

     Whether this fact makes a difference remains uncertain. When this issue reaches the Supreme Court, there will be so many eloquent amicus briefs written on both sides that the quality of the opinion under review is unlikely to matter much. To the extent that the opinion under review does matter, however, the present opinion is more subject to attack than many of the district court opinions reaching the same result.

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.

Id. at 9. The dissent then argued that provisions barring same-sex marriage have a rational basis:

     The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs on either side to know that the State's position is (at the very least) arguable. It most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe.

Id. at 20. This argument is essentially statistical: A position argued intensely by large numbers of Americans must necessarily be sufficiently rational that a state electorate or legislature is permitted to accept it.

     Of these three reasons identified by the dissent in support of the position that the right to marriage is not fundamental, the third is the strongest. The federal courts are not free to create new fundamental rights simply because federal judges think they are good policy. In order for a right to be fundamental, it must generally have strong support in history and tradition.

     There are circumstances in which history and tradition have been less important—many early race discrimination decisions were decided when much of the South was deeply racist—but even those decisions were supported by a strong public consensus, at least abstractly, that race discrimination was wrong.

     Same sex marriage lacks a strong supporting consensus in state law. As this blog has previously noted, 17 states have chosen to recognize same-sex marriage as a matter of state law. That means that 33 states do not recognize same-sex marriage. By contrast, when the Supreme Court decided Loving v. Virginia, 388 U.S. 1 (1967), 35 states allowed interracial marriage and only 15 states did not.

     Likewise, in Lawrence v. Texas, 539 U.S. 558 (2003), the court held that history and tradition alone could not save criminal sodomy statutes—but those states were opposed by a majority of Americans and had already been repealed in many states. "By 2002, 36 states had repealed all sodomy laws or had them overturned by court rulings."

     If the fundamental right to marriage extends to same-sex couples, therefore, the basis must be a strong supporting consensus in public opinion. This is where the dissent is on the least solid ground. Since Windsor was decided, federal judges across the country have been finding a federal right to same-sex marriage. Public protest, on the whole, has been limited.  Polls show that a steadily growing majority of Americans accept the decisions and agree that a right to same-sex marriage should exist. In a recent Washington Post poll, Americans supported same-sex marriage by a 59-34 margin and supported the existence of a federal right to same-sex marriage by a 50-41 margin. A recent Gallup poll showed Americans supporting same sex marriage by a 55-42 margin.

     This blog has previously argued that support for same-sex marriage has not reached the level necessary to justify recognition as a fundamental right. As a matter of state law, this is clearly so. But as a matter of public opinion, the question is much closer. The fundamental right to marriage was extended to interracial couples in Loving, even though 30% of the states (15 out of 30) disagreed. Lawrence struck down sodomy laws that were present in 28% of the states (14 out of 50).

     Public opposition to same-sex marriage is steadily shrinking toward that 28-30% level. It is not quite there yet—but the downward trend is very steady. The trend is especially pronounced among adults under 30, 78% of whom supported same-sex marriage in the above-cited Gallup poll.

     The author continues to believe that Americans should generally resolve their disputes in elections and that federal judges should not invent fundamental rights merely because the judges believe that they would be good policy. But when support for a right passes the 65-70% level, courts have traditionally been willing to call the right fundamental. Support for same-sex marriage is getting close to that level—and it is well past that level among younger Americans.

     The Kitchen majority stayed its ruling in anticipation of future appeals, either to the United States Supreme Court or to the Tenth Circuit en banc. The appellants are likely to pursue one of those options.

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

           This is a long-term series of posts on one of the hottest topics in modern American family law—same-sex marriage. In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court held that the federal government must defer to state law on the validity of same-sex marriage, and it struck down a federal statute providing that the federal government can never recognize a same-sex marriage.  But if state law is now controlling, the immediate next question is, which state's law? This blog began as an attempt to collect case law answering that question.

           But this purpose was quickly overtaken by events.  Perhaps motivated in part by the difficulty of determining which state's law applies, the post-Windsor case law has held with near-uniformity that the states cannot constitutionally restrict same-sex marriage at all.

            This blog therefore evolved into a more general attempt to collect post-Windsor case law on same-sex marriage.  As the reader will see, the author has grown somewhat critical of the current trend to resolve the nationwide dispute over same-sex marriage by federal court decision.  Same-sex marriage is almost certainly coming, and coming quickly, but it will come with more legitimacy and ultimately more support if it comes through the normal processes of state law, at least until the number of states recognizing same-sex marriage reaches 50%.

          Please scroll down past the "Read More" to find articles discussing the various aspects of United States v. Windsor.

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

Windsor Update: Recent Federal District Court Decisions

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

Brett Turner, Senior Attorney, National Legal Research Group

    Arguments have now been heard in the two Tenth Circuit cases (Kitchen and Bishop) and in the Fourth Circuit case (Bostic). These are likely to be the first post-Windsor circuit court cases addressing same-sex marriage. None of the three cases have yet been decided.

     In the meantime, the district courts continue to hold unanimously that restrictions upon same-sex marriage are unconstitutional. In Baskin v. Bogan, No. 1:14-CV-00355-RLY, 2014 WL 1814064 (S.D. Ind. May 8, 2014), the court granted a temporary restraining order against enforcement of Indiana's rule against recognition of out-of-state same-sex marriages. Baskin was another sad case in which one of the parties to the marriage was terminally ill and likely to die before the end of the litigation. Entry of a restraining order was therefore the only realistic way in which the parties could ever be married. Noting the consensus of opinions across the country, the court found it likely that the plaintiff would prevail on the merits. 

     In Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014), the court held that Idaho's constitutional and statutory provisions barring same-sex marriage are unconstitutional. The court expressly found that the right to marry is fundamental and extends to same-sex couples. The court construed Windsor to hold that restrictions on same-sex marriage are subject to heightened scrutiny. It then found that the restrictions at issue did not survive that scrutiny. Latta avoided the more troublesome issue of whether restrictions on same-sex marriage have a rational basis by holding that a higher test applied.

     In Whitewood v. Wolf, No. 1:13-CV-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014), the court held that a Pennsylvania statutory provision barring same-sex marriage is nconstitutional. The court held that the right to marry is fundamental, and that it applies to same-sex couples. It therefore applied heightened scrutiny, and found that the provisions failed that test.  

     In Geiger v. Kitzhaber, No. 6:13-CV-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014), the court held that Oregon's constitutional provision restricting same-sex marriage was unconstitutional. The court held that the measure did not survive even rational basis review.

     As this blog has previously argued, holdings that restrictions on same-sex marriage lack a rational basis are problematic. Many Americans voted for such restrictions in democratic elections; many still believe that marriage should be limited to persons of the opposite sex. It is clear now that the views of these Americans have not prevailed, and that a federal right to same-sex marriage is likely to be created.

     But it is still important that the right be created in a manner that promotes long-term healing and encourages broad social acceptance of same-sex marriage. Treating all opposition to same-sex marriage as irrational is unlikely to achieve these goals. On the contrary, it is likely to foster resentment among those who oppose same-sex marriage. By contrast, opinions that treat same-sex marriage as a fundamental right acknowledge the deep beliefs of those opposed to same-sex marriage, while still holding that beliefs cannot overcome the fundamental constitutional right of all people to marry the person of their choice. The fundamental-right rationale is a better long-term solution to the same-sex marriage problem than the rational-basis rationale.

     There has also been litigation on whether private retirement plans regulated by ERISA can define a marriage to include only opposite-sex relationships. In Roe v. Empire Blue Cross Blue Shield, No. 12-CV-04788 NSR, 2014 WL 1760343 (S.D.N.Y. May 1, 2014), the plaintiffs were members of a private health insurance plan, which offered benefits only to same-sex spouses.  They filed a class action against the plan, arguing that if the court were to enforce the plan's restrictive definition of "spouse," it would be unconstitutionally discriminating on the basis of sexual preference. The court disagreed, holding that the plan was a private entity, not a governmental entity, and it was free to define spouse however it wanted. A motion to dismiss the plaintiffs' complaint was granted.  

     This topic is further confused by Notice 2014‑19, 2014‑47 I.R.B. 979, 2014 WL 1334128 (April 21, 2014). Answer 5 of that notice states that plans defining a spouse in a manner inconsistent with Windsor must be amended no later than December 31, 2014. The requirement particularly applies to benefits that plans are required to offer to spouses, as defined by federal law, unless waived in writing. These benefits include qualified joint-survivor annuities and qualified preretirement survivor annuities. It remains to be seen whether plans will have the freedom after December 31, 2014 to adopt a narrower definition of "spouse" than the federal law definition on issues where the definition of "spouse" is not directly controlled by federal law.

Topics: legal research, family law, Brett turner, Windsor update, federal district court, Baskin v. Bogan, SD Ind., Latta v. Otter, D. Idaho, Whitewood v. Wolf, MD Pa., Geiger v. Kitzhaber, D. Or., Roe v. Empire Blue Cross Blue Shield, SD NY, private retirement plans, IRS Notice 2013-19

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