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


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.

Windsor Update: Status of Circuit Court Appeals


Brett Turner, Senior Attorney, National Legal Research Group 

     All of the recent district court decisions requiring various states to recognize same-sex marriage have been appealed. This short update will set forth in one place the schedule of the various appeals.

     The Utah case, Kitchen v. Herbert, 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013), will be heard on an expedited schedule. Oral argument is set for April 10.

     The Oklahoma case, Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014), has also been expedited.  Oral argument is scheduled for April 17.

     The Virginia case, Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014), has also been expedited. It will be heard between May 12 and May 15. See Harris v. Rainey, 5:13CV00077, 2014 WL 1292803 (W.D. Va. Mar. 31, 2014). Harris noted that the plaintiffs in another Virginia case have been granted leave to intervene in the appeal, and stayed the other case pending decision of the appeal. 

     The first post-Windsor decision was the Ohio case, Obergefell v. Kasich, No. 1:13BCVB501,
2013 WL 3814262 (S.D. Ohio July 22, 2013). The Sixth Circuit refused to expedite the appeal in that case. No reasons were stated, but one of the partners to the marriage in that case was terminally ill, and is now deceased. The initial brief on the appeal is due on April 10. 

     The Kentucky case, Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014), will also be heard in the Sixth Circuit. One source suggests that the Sixth Circuit is unlikely to expedite the appeal. But the refusal to expedite in Obergefell may have been based upon the unusual postdeath nature of the appeal. 

     The Michigan case, DeBoer v. Snyder, 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014), will also be heard in the Sixth Circuit. A motion to expedite the appeal has been filed,
but not decided as of this writing.  If the motion is denied, initial briefs would be due before the end of June.

     In the Texas case, De Leon v. Perry, No. SA‑13‑CA‑00982‑OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014), there is no indication that a motion to expedite has been filed. Appellate briefs should be due in roughly 40 days, which would be mid-May.

     The first appeals to be heard, therefore, will be those in the Utah and Oklahoma cases.  There is no guarantee, of course, that the cases will be decided in the order heard.  Obergefell, which has not been expedited, will definitely not be part of the first wave of decisions.

Windsor Update: Michigan


Brett Turner, Senior Attorney, National Legal Research Group

     A Michigan federal court has joined the growing consensus of federal decisions holding that all restrictions upon same-sex marriage are per se unconstitutional. DeBoer v. Snyder, 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014).

     DeBoer adopted the broad rationale that there is no rational basis for legislation limiting same-sex marriage. The court expressly rejected an argument that same-sex marriages are a suboptimal environment for raising children, accepting expert testimony that children fare equally well, regardless of whether they are raised by opposite-sex or same-sex couples.

     The Court finds Rosenfeld's testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. The Court notes that the testimony of Brodzinsky and Rosenfeld is in line with a strong "no differences" consensus within the professional associations in the psychological and sociological fields. Brodzinsky made the following statement in his expert witness report, which defendants did not challenge:

Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not limited to): American Medical Association, American Academy of Pediatrics, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, American Psychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute.

Pls.' Ex. 30 at ¶ 21. In fact, the 2004 Council of Representatives of the American Psychological Association ("APA") unanimously voted in favor of issuing a position statement that "research has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish." Pls.' Ex. 111 at 2.

Id. at *4 (emphasis added).

     This author has suggested previously that federal courts should not recognize a broad nationwide right to same-sex marriage until a larger number of states recognize such marriage by legislative or electoral action. This is essentially the argument that federal law should proceed with caution in changing the traditional definition of marriage in a manner not yet accepted by a majority of states. The court responded to this argument as follows:

     Legislatures and regulatory agencies often cite to such reasoning when postponing decisions related to issues of public importance, as matters of public policy are resolved with more candor and insight when they are decided after an open debate based on sufficient facts. This is why federal administrative agencies must provide the public with a notice and comment period before exercising their rule-making authority. Hearings must be held, studies must be conducted, and legislators must deliberate. These things necessarily take time. But the calculus is fundamentally altered when constitutional rights are implicated because "any deprivation of constitutional rights calls for prompt rectification." Watson v. Memphis, 373 U.S. 526, 532B533 (1963). "The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled." Id. The state may not shield itself with the "wait-and-see" approach and sit idly while social science research takes its plodding and deliberative course. Were the Court to accept this position, "it would turn the rational basis analysis into a toothless and perfunctory review" because "the state can plead an interest in proceeding with caution in almost any setting." Kitchen v. Herbert, No. 13B217, 2013 U.S. Dist. LEXIS 179331, at *77 (D.Utah Dec. 20, 2013). Rather, the state must have some rationale beyond merely asserting that there is no conclusive evidence to decide an issue one way or another.

Id. at *14 (emphasis added).

     From reading the above passage, one would think that many laws are found unconstitutional
under the rational-basis test. But, in fact, in most situations outside the context of gay rights and same-sex marriage, the great majority of all rational-basis arguments are unsuccessful. For example, "where 'ordinary commercial transactions' are at issue, rational basis review requires deference to reasonable underlying legislative judgments." Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012). In constitutional law generally, commentators regularly note "the extreme deference the Court has traditionally shown when applying [the rational-basis] standard." Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 437 (2005).

     Yet the rational-basis standard has been applied with much less deference in cases involving gay rights and same-sex marriage. This point emerges most clearly from Lawrence v. Texas, 539 U.S. 558 (2003), which struck down the Texas sodomy statute without ever expressly stating a standard of review and therefore necessarily applying the rational-basis test. The version of the test applied in these cases has been very different from the version applied in commercial cases, to the point where some commentators have suggested a different label—"rational basis with teeth." See, e.g., Steven P. Wieland, Gambling, Greyhounds, and Gay Marriage: How the Iowa Supreme Court Can Use the Rational-Basis Test to Address Varnum v. Brien, 94 Iowa L. Rev. 413 (2008).

     The DeBoer court showed very little deference to restrictions on same-sex marriage; it examined the alleged justification for such restrictions very closely, and ultimately concluded that no rational basis existed. Clearly, the standard applied is rational basis with teeth. In the passage emphasized above, the court justified this standard by claiming that "the calculus is fundamentally altered when constitutional rights are implicated." 2014 WL 1100794 at *4.  But constitutional rights are implicated in every rational-basis case, and only some of the rational-basis cases apply rational basis with teeth. The mere fact that constitutional rights are implicated, therefore, is alone not a sufficient basis for applying the sort of strict analysis the same-sex marriage cases are applying. There must be some additional reason, over and above the fact that "constitutional rights are implicated," id., why the DeBoer court (and many of the other recent district court same-sex marriage cases) chose to apply the stricter version of the rational-basis test.

     One very logical explanation is that the courts have decided, at some informal level, to treat classifications based upon sexual preference as inherently suspect. That is the most likely reason for the strict standard applied in Lawrence: Justice Kennedy, who cast the crucial fifth vote for the majority opinion, has a history of disfavoring legislation that discriminates against gay people. See, e.g., Romer v. Evans, 517 U.S. 620 (1996). (Justice O'Connor provided a sixth vote for striking down the statute in Lawrence, but she preferred a different rationale.) Kennedy was not willing to overtly hold that a suspect class existed, but he was also not willing to apply the extremely deferential form of the rational basis that applies in commercial cases.

     Behind the current wave of opinions applying a strict form of the rational-basis test to legislation limiting same-sex marriage, therefore, is an implicit determination that such legislation is, to a certain extent, inherently suspect. In effect, the courts have already made at least a preliminary determination that a right to same-sex marriage should exist unless there is some significant reason why it should not. DeBoer did not expressly find that persons of the same sex have a fundamental right to marry. But it spoke very favorably of Loving v. Virginia, 388 U.S. 1 (1967), which recognized a fundamental right to interracial marriage:

     Loving has profound implications for this litigation. In that case, the Supreme Court overturned Virginia's anti-miscegenation statutes prohibiting interracial marriage because they violated substantive due process and equal protection. In doing so, the Court rejected Virginia's argument that "under the Constitution the regulation and control of marital and family relationships are reserved to the States." Kitchen, 2013 U.S. Dist. LEXIS 179331, at *83-84 (citation omitted). This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving. Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

2014 WL 1100794 at *16. This passage suggests strongly that the court at some level accepted the basic notion that same-sex couples have a fundamental right to marry. That notion was the entire foundation for the opinion in Kitchen, which is favorably quoted in the above passage. If a broad nationwide right to same-sex marriage is to be recognized, the best path forward is the reasoning of Kitchen—recognition of a fundamental right to marry, which can be restricted only for a very strong reason. This reasoning avoids the need to label all opposition to same-sex marriage as irrational, which is likely to anger social conservatives and make them more reluctant to accept same-sex marriage.

Windsor Update: Tennessee


Brett Turner, Senior Attorney, National Legal Research Group

     A federal district court in Tennessee has granted a preliminary injunction against the enforcement of Tennessee's constitutional and statutory provisions against recognition of same-sex marriages from other states. Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014). The opinion cited most of the relevant post-Windsor federal court case law, noting that the federal courts have so far unanimously held that the states are not permitted to restrict marriage to persons of the opposite sex, and finding a likelihood that the plaintiff will prevail on the merits. The court paid particular attention to the Kentucky decision in Bourke v. Beshear, which is discussed here.

     The Tanco case involves only the constitutionality of Tennessee's restrictions upon same-sex marriage. The plaintiffs are not arguing that Tennessee should be compelled to allow its own
citizens to enter into same-sex marriages.

     In the world outside court decisions, a study of polling on same-sex marriage suggests that support for such marriages is not only increasing, but increasing at an increasingly faster rate. This fact may increase the likelihood that the present wave of decisions requiring broad recognition of same-sex marriages will be accepted by society generally, and by conservative social groups in particular, with a minimum of disruption.

Windsor Update: Kentucky and Virginia


Brett Turner, Senior Attorney, National Legal Research Group

       Two more decisions have held that the U.S. Constitution requires broader acceptance of same-sex marriage than state law presently permits.


      In Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014), the court held that Kentucky was required to recognize out-of-state same-sex marriages, and that Kentucky's constitutional and statutory provisions barring such recognition are unconstitutional. The court relied entirely upon a Fourteenth Amendment due process theory. Because no clear majority of Justices in Windsor applied a higher standard, Bourke used the rational-basis test.  It nevertheless found no rational basis for refusing to recognize out-of-state same sex marriages. The effect of the Kentucky provisions was to identify a group of state-sanctioned marriages (same-sex marriages from other states) and subject them to unequal and demeaning treatment. The only justification alleged in support of the provisions was to preserve a traditional definition of marriage as a relationship between persons of opposite sexes. But the court held that tradition alone cannot justify discriminatory treatment.

      Interestingly, Bourke did not expressly rely on a finding that Kentucky's provisions against same-sex marriage had been enacted with discriminatory intent. It is therefore a stronger opinion than that in Obergefell v. Kasich, which this blog criticized here.

      But Bourke still ignores that portion of the Windsor opinion that held that recognition of marriages is uniquely a subject for state law. That portion clearly implies that states may choose either to recognize or not recognize same-sex marriage. If there is literally never any rational basis for recognizing out-of-state same-sex marriages—and that is what the Bourke court held—then Windsor would not have placed so much emphasis upon state law. 

      In this author's opinion, the federalism portion of the Windsor opinion was not intended to be meaningless. The validity of marriages is a subject over which state legislatures have particularly great power, and a subject over which the federal government has particularly little power. A strong majority of Kentucky citizens have chosen to place restrictions upon the recognition of same-sex marriage. The decision made by these citizens should not lightly be discarded as irrational.

     There are especially strong practical reasons why federal courts should not dismiss all opposition to same-sex marriage as irrational. Recognition of same-sex marriage is a fundamental social change. In a democracy, fundamental social changes should result from elections, not from court decisions. 

     Only in 2012 did same-sex marriage begin to show strength at the ballot box. This showing was very important, for it offered a path to recognition of same-sex marriage that was relatively free of divisive controversy. If a majority of voters choose to reject restrictions upon same-sex marriage, that rejection will be a clear basis for accepting fundamental social change. If the voters reject same-sex marriage in a sufficiently large number of states, that may even provide a basis for applying constitutional theories to force recognition of same-sex marriage nationwide.

     But it is important for the legitimacy of the process that additional elections be held on same-sex marriage. The strong wave of post-Windsor decisions striking down restrictions upon same-sex marriage raises a very real possibility that no more elections will be held and that the federal courts will declare the issue resolved. Such a declaration would substitute judicially imposed change, which is relatively less legitimate, for electorally or legislatively imposed change, which is relatively more legitimate. The dangers of judicially imposed change are especially strong when the decisions hold that all opposition to same-sex marriage, such as that expressed by a strong majority of Kentucky voters, is irrational—and that is what the Bourke court held.

     From all evidence visible to the author, the nation is moving rapidly toward widespread recognition of same-sex marriage. But it is important for the perceived legitimacy of the change that the change occur as democratically as possible. Democratic change is impeded, not faciliated, when federal courts insist that all opposition to same-sex marriage is irrational.

     The questions remains, if opposition to same-sex marriage is rational, what is the precise rational basis for such opposition? The federalism portion of Windsor holds clearly that recognition of marriage is a subject on which states and state legislatures have particular power. In enacting restrictions upon same-sex marriage, state governments have been responding to the fear on the part of their constituents that recognition of same-sex marriage will pose substantial dangers to society. Widespread recognition of same-sex marriage is a recent development, historically speaking; there is reason to proceed with caution.

     The federal court decisions to date have been inclined to take a hard look at the dangers of same-sex marriage, and conclude that the dangers are so imaginary that opposition to same-sex marriage is irrational. But state law is entitled to particular deference on matters involving the validity of marriages, and it is especially important to the legitimacy of fundamental social change that the change be ratified by as many elections as possible. Against this background, fears that widespread recognition of same-sex marriage will change society in harmful ways are not entirely irrational.

     The author therefore respectfully submits that the federal courts should not hold that all opposition to same-sex marriage is without rational basis. The courts should take a less assertive approach to this issue, and allow the democratic process to work its will for another few years.


     The above analysis assumes, however, that a rational-basis test applies. In Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014), the court held that the federal Constitution requires Virginia to allow same-sex marriages of its own citizens, even though both a constitutional and a statutory provision bar such marriages. Bostic held flatly that the right to marry is a fundamental right. It did not, therefore, apply rational-basis review.  Rather, the court applied strict scrutiny. It then found that preserving traditional marriage is not a sufficiently powerful goal to survive strict scrutiny. Like the Utah opinion in Kitchen v. Herbert, the opinion was consciously based upon Loving v. Virginia, 388 U.S. 1 (1967), and indeed the opinion begins with a quotation from the wife in Loving.

     Of all of the rationales yet expressed for mandating recognition of same-sex marriage, the Kitchen/Bostic rationale is clearly the strongest. If persons of the same sex have a fundamental right to marry one another, then tradition alone is not the sort of compelling reason the law has traditionally required to justify interference with such a right.

     Yet one might legitimately ask why the right to marry a person of the same sex is deemed fundamental. As of this writing, 17 states have recognized same sex marriage by normal operation of state law. That means that 33 states do not recognize same-sex marriage—well over half of all American states. By contrast, when Loving was decided, 35 states allowed interracial marriage and only 15 states did not. In short, when Loving was decided, a large majority of American states allowed interracial marriage.

     At present, a nearly equally large majority of American states do not allow same-sex marriage. This difference in public support suggests that the analogy to Loving should be used with caution. Bostic started its opinion by noting that "[a] spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America," 2014 WL 561978, at *1, but the court then cut that debate off by asserting that it is resolved by the federal Constitution. 

     Supporters of same-sex marriage would probably argue that the right to marry a person of the same sex is objectively fundamental, regardless of what a majority of the voters think.  The author is not a constitutional originalist, and believes that the definition of a fundamental right can change over time in response to changes in society itself. But surely the bar for recognition of a new fundamental right should be relatively high. When a right is not yet recognized by a majority of states, courts should be cautious about declaring the right fundamental. That is especially so when proponents of same-sex marriage are showing strength at the ballot box—raising the possibility of an electoral resolution of the debate over same-sex marriage that will have much more legitimacy than any court decision will.

     At the same time, it might also be noted that there does not seem to be widespread outrage over post-Windsor case law striking down restrictions upon same-sex marriage.  Republicans in Congress seem more interested in Obamacare and budget issues than in attacking same-sex marriage. Protests over recognition of same-sex marriage are not dominating the nightly news. Even outgoing Virginia Attorney General Ken Cuccinelli, a determined opponent of same-sex marriage, wrote only a short summary opinion rejecting the possibility, missing the chance to make more determined protest. If social conservatives seem disposed to accept the validity of the recent lower court decisions, perhaps legitimacy is a less important concern.

     But the fact still remains: In the United States, divisive public issues are resolved by elections. Same-sex marriage did well at the polls in 2012, but that was only one election, in which only four states voted on the issue. The debate over same-sex marriage would be resolved in a better way, a more legitimate way, a way more in keeping with the American tradition, if a broader base of states were permitted to vote.

     And that is the fundamental problem with the recent wave of decisions holding that states are required to recognize same-sex marriage. It ends an important and necessary debate early, with an arbitrary decision by the courts that one side of the debate is taking an irrational position. The people whose position is being called irrational are likely to disagree with this reasoning, and to reject the legitimacy of these decisions. The result may well be greater social opposition to same-sex marriage, even after the purely legal issue is resolved.

     The more prudent approach, therefore, is to let the normal political processes of state law run their course. If current trends continue, within only a few more years, 50% or more of the states will recognize same-sex marriage under state law. At that point, when support for same-sex marriage begins to approach the same levels as support for interracial marriage did in 1967, it would then be time to recognize a fundamental right to marry a person of the same sex.

     This approach will admittedly delay widespread recognition of same-sex marriage for a few more years. But supporters of same-sex marriage will then be able to say to opponents, "We resolved this issue in the traditional American way, by holding a series of elections, and the people decided." That seems likely to produce a better world, one in which same-sex marriage is more accepted socially, than a world in which the courts declare the contest over after same-sex marriage won only a single election (2012) in which it was on the ballot in only four states.

* * * *

     The author of this blog received a certain amount of criticism from opponents of same-sex marriage for writing that former Virginia Attorney General Ken Cuccinelli's opinion rejecting same-sex marriage was "[a] notable step backward." The author stands by this characterization. Cuccinelli's opinion is problematic even for opponents of same-sex marriage, because it is such a tremendous missed opportunity to write a reasoned defense of provisions restricting such marriage. Given the strong trend in federal court case law, opponents of same-sex marriage could use such a defense. Cuccinelli could have provided one—but mostly, he did not.

     The present post may well attract criticism from the other side of the debate. 

     This blog remains committed to providing objective coverage of post-Windsor case law, but it is not possible to blog on so divisive an issue without developing an opinion. Discussing that opinion openly gives readers information they need to evaluate the information provided by the blog.

     The author supports same-sex marriage, and would vote for it if the issue were to arise in an election. Increasingly, however, the author is concerned that the federal courts are declaring an end to the debate over same-sex marriage too quickly, without allowing sufficient time for the debate to be addressed through the normal electoral process. Because an electoral resolution of this divisive issue is greatly to be preferred to a judicial resolution, recent decisions have been too quick to hold that restrictions upon same-sex marriage are unconstitutional.

WINDSOR UPDATE: Abstention and Standing


Brett Turner, Senior Attorney, National Legal Research Group

     A federal district court in West Virginia has released an opinion addressing questions of abstention and standing in same-sex marriage litigation. McGee v. Cole, Civ. No. 3:13-24068, 2014 WL 321122 (S.D. W. Va. Jan. 29, 2014). The opinion does not reach the merits.

     McGee is an action by gay couples living in West Virginia, challenging that state's statutory restrictions upon same-sex marriage. The plaintiffs argue both that the restrictions upon same- sex marriage are substantively unconstitutional and that the restriction against the recognition of out-of-state same-sex marriage is procedurally unconscionable. 


   The defendants moved to dismiss the complaint on the ground of Burford abstention. Burford abstention applies when a case presents difficult questions of state law, the importance of which transcends the case at hand, or where adjudication in a federal forum would disrupt a state’s attempt to establish coherent policy on a matter of public importance. First Penn-Pac. Life Ins. Co. v. Evans, 304 F.3d 345, 348 (4th Cir. 2002).

     The court rejected the first basis for Burford abstention. McGee did not present a difficult question of state law. West Virginia state law is perfectly clear: Same-sex marriages are never recognized. The issue is whether West Virginia state law violates the federal Constitution. That is a question of federal law, not state law.

     The court also rejected the second basis for Burford abstention. There have been sporadic attempts either to repeal the West Virginia statutes or to write them into the state constitution, and the defendants argued that these attempts should be respected and permitted to continue. "Defendants point to no cases, however, suggesting that legislative efforts to define domestic relations justify federal court abstention, and the Court has not found any." McGee, 2014 WL 321122, at *7.

     It would also seem that if some sort of deference to state legislative action is appropriate, it should be appropriate only where that action is imminent. For example, if the West Virginia legislature were about to vote on a bill to repeal the statutes at issue, it might in some cases make sense to refrain from addressing the constitutional issue until the vote is held. But West Virginia legislative activity on same-sex marriage has been very sporadic, and no changes are imminent. To abstain from hearing a federal constitutional challenge in that situation would greatly reduce the reach of the federal Constitution as the mere possibility of state legislative action, combined with some sporadic history of past legislation (some of which on the facts of McGee resulted from attempts to strengthen the provision being challenged) would paralyze the federal courts. Burford abstention should not be required by the sort of sporadic former legislative action that was present in McGee.

     The defendants also argued that the plaintiffs sued only the court clerks of two counties. Any ruling in favor of the plaintiffs would apply only in those counties and would therefore frustrate West Virginia's attempts to have a uniform policy on same-sex marriage. The court agreed with this concern and directed the plaintiffs either (1) to add sufficient additional defendants so that the lawsuit would affect the entire state of West Virginia, or (2) to provide legal authority that the court's ruling would be binding statewide.

     On the first point, the court noted that in Zablocki v. Redhail, 434 U.S. 374 (1978), which struck down a state statute requiring persons under a child support order not having custody of their children to obtain court permission before remarrying, the suit was a class action against all of the marriage clerks in the state. On the second point, the State of West Virginia had intervened to defend the statutes, and the court was uncertain whether the State's intervention would make an opinion in the plaintiffs' favor binding statewide. In any event, the court clearly wanted the plaintiffs to take all possible actions so that the result of the case would be binding statewide. 

Baker v. Nelson

     The defendants also argued that the result of the case should be controlled by Baker v. Nelson, 409 U.S. 810 (1972), which dismissed for want of a substantial federal question an argument that the Fourteenth Amendment required the state to recognize same-sex marriage. Relying expressly on the Utah decision in Kitchen v. Herbert and the Oklahoma decision in Bishop v. United States, the McGee court disagreed. Baker considered only sex discrimination, not discrimination against gay people. In addition, developments in Supreme Court jurisprudence since 1972—especially the recognition of "intermediate tier" scrutiny for sex discrimination and Windsor's failure to find itself bound by Baker—suggested that Baker is no longer binding. 


     Finally, the State moved to dismiss that portion of the plaintiffs' complaint alleging the unconstitutionality of West Virginia Code section 48-2-603, which provides that West Virginia will never recognize an out-of-state same-sex marriage. The fundamental problem was that none of the plaintiff couples had been married outside West Virginia. Since none of the plaintiff had out-of-state same-sex marriages, they were not injured by the statute they were attacking.

     The plaintiffs argued that they did not need to obtain out-of-state marriages because the attempt would be futile; everyone agreed that West Virginia would not recognize the marriages. "The Court finds that even if a certain activity is futile, a plaintiff must nonetheless demonstrate willingness to engage in the activity were it not for a barrier in place that makes the activity futile." McGee, 2014 WL 321122, at *14. The plaintiffs did not even allege that they wanted to get married out of state. Moreover, there was no suggestion that the plaintiff would suffer any form of prejudice from obtaining an out-of-state same-sex marriage or even that obtaining such a marriage would place a material burden upon them.

     The court therefore held that the plaintiffs lacked standing to challenge the statutory provision barring recognition of out-of-state same-sex marriages. The clear lesson is that future challenges to statutes preventing interstate recognition of same-sex marriages should be brought by plaintiffs who have actually entered into an out-of-state same-sex marriage that they seek to require the defendant state to recognize. This does not seem like an unreasonable requirement.

     The plaintiffs' standing to challenge the statutory provisions preventing them from entering into a same-sex marriage in West Virginia of course was not affected by the ruling.  The action remains pending, and a decision on the merits should eventually be forthcoming.

Windsor Update: Virginia's Outgoing Attorney General Speaks


Brett Turner, Senior Attorney, National Legal Research Group

     As the courts struggle to implement the Windsor opinion, there will inevitably be steps forward and steps backward. A notable step backward is Virginia Attorney General Opinion 13-102, released by outgoing Virginia Attorney General Ken Cuccinelli on January 10, 2014—the very last day of his tenure as attorney general.

     The opinion answers an inquiry from a Virginia state senator, asking whether "public sector health plan sponsors" in Virginia must follow United States Department of Labor Technical Release 2013-04. That Release provides that administrators of benefit plans regulated by the federal Employee Retirement Income Security Act of 1974 (“ERISA”) must recognize same-sex marriages if those marriages are valid in the state where the marriage took place.

     Most benefit plans regulated by ERISA are private plans, but federal law also regulates certain public sector health plans in states that accept federal funding under the Public Health Service Act. E.g., 42 U.S.C. § 300bb‑1. By accepting federal funds for public health, these states have voluntarily agreed that group health plans for public sector employees will be subject to federal requirements. 

     Mr. Cuccinelli opined that Virginia administrators of public sector health plans need not follow the position taken by the Department of Labor—the federal agency responsible for construing ERISA. He took the position that Windsor did not require any state to accept same-sex marriage and that section 2 of the Defense of Marriage Act (“DOMA”) remains valid.  That statute provides that federal law shall not require any state to recognize same-sex marriage. He finally cited Virginia's constitutional provision against same-sex marriage, Va. Const. art. I, § 15-A, which prevents any recognition of same-sex marriage. 

     Given that federal law necessarily controls the operation of federally regulated benefit plans, Mr. Cuccinelli's insistence that state law nevertheless be followed brings to mind John C. Calhoun's insistence that states can nullify operation of any federal law within their borders—a doctrine that did not survive the Civil War. 

     As interesting as the position that Mr. Cuccinelli took is the position that he chose not to take. Federal regulation of public sector health plans appears to be rather narrow, focusing mainly upon rights to continued coverage after termination. 42 U.S.C. § 300bb‑1. In addition, all group health plans, whether public or private, are required to follow certain basic requirements, such as avoiding any exemption for preexisting conditions, see 42 U.S.C. § 400gg-3, as a result of the health-care reform law popularly known as Obamacare.

     It is far from clear that federal regulation of public sector health plans is sufficiently comprehensive to require such plans to universally follow the federal definition of “spouse” in situations in which the state definition is more restrictive. Mr. Cuccinelli could have stressed the limited nature of federal regulation of public sector plans, or have even raised constitutional issues as to whether the federal government can properly insist that state public sector plans follow the federal definition of “spouse.” Instead, the opinion seemed to accept that the plans were federally regulated and he then asserted that the plans must nevertheless follow conflicting state law.

     Mr. Cuccinelli's construction of Windsor is also strikingly inconsistent with most existing post-Windsor case law. Provisions similar to the Virginia provisions on which Mr. Cuccinelli relied have been held unconstitutional in Ohio and Oklahoma on the basis that they were enacted with the intent to discriminate against gay persons, and in Utah on the basis of a broad federal right to same-sex marriage. Mr. Cuccinelli did not cite these decisions or argue that they were wrongly decided.  He also failed to cite at least one case that essentially adopts his position that state law restrictions upon same-sex marriage remain valid. Had the opinion contained more legal analysis, it might have been a useful contribution to public debate over the scope of Windsor and the future of same-sex marriage.

     The timing of the opinion is also remarkable. Mr. Cuccinelli is Virginia's outgoing Attorney General. He lost that position when he ran, unsuccessfully, for Governor of Virginia. Virginia's new administration took office on "the Saturday after the second Wednesday in January," Va. Const. art. V. § 1—which was January 11, 2014.  The opinion was issued on January 10, which was literally Mr. Cuccinelli's last day as Attorney General. Mr. Cuccinelli is an outspoken social conservative, and Opinion 13-102 appears to be something of a last shot against the recognition of same-sex marriage—which does not even contain enough analysis and argument to potentially move the public debate in Mr. Cuccinelli's direction.

     Virginia's incoming Attorney General, Mark Herring, campaigned on a platform of marriage equality, and he has filed a brief arguing that Virginia's constitutional provision against same-sex marriage is unconstitutional. It therefore seems likely that future Virginia Attorney General opinions on the subject of same-sex marriage will be very different from those written by Mr. Cuccinelli.

Windsor Update: Oklahoma


Brett Turner, Senior Attorney, National Legal Research Group 

     A federal district court in the Northern District of Oklahoma has held that Oklahoma's constitutional provision barring same-sex marriage violates the federal Constitution. Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014).

     The rationale is based heavily upon the second part of the Windsor opinion, which held that DOMA section 3 was invalid because it was enacted with intent to discriminate against gay couples. The court cited strong evidence that the purpose of the Oklahoma provision was to express moral disapproval of same-sex marriage. The court continued:

The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence [v. Texas], 539 U.S. [558], 571 [2008)] (explaining that moral disapproval of homosexual conduct was shaped by "religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family"). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577 ("'[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'") (quoting and adopting Justice Stevens' dissent in Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)). Preclusion of "moral disapproval" as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the State's interest in upholding one particular moral definition of marriage, this is not a permissible justification.

Id. at *27 (footnote omitted) (some citations  omitted).

     The court's direct holding that legislation cannot be based upon moral disapproval of same-sex marriage is extremely broad. Since moral disapproval is the primary basis for all restrictions upon same-sex marriage, the court's reasoning would strike down all such restrictions, creating in effect a broad federal right to same-sex marriage. But the court's interpretation of Windsor is open to question. Windsor discussed at considerable length the long tradition of treating marriage requirements as a subject for state law. If Bishop was correctly reasoned, then a federal right to same-sex marriage essentially exists, and the entire discussion of federalism in Windsor was irrelevant. In addition, Windsor itself could have created a broad federal right to same-sex marriage, and it did not. Thus, Bishop stretches the Windsor rationale to reach a result that the Windsor Court itself failed to reach. 

     Interestingly, Bishop recognized earlier in its opinion that "[a] state [restriction upon same-sex marriage] must be approached differently, and with more caution, than the Supreme Court approached DOMA" in WindsorId. at *19. But the court's very broad holding that state legislatures cannot constitutionally base legislation upon moral disapproval of same-sex marriage shows very little caution. If the federalism language in Windsor carries any weight whatsoever, the reasoning of Bishop is highly questionable.

     In other words, Windsor recognizes that states have the power to decide who can and cannot be married. This determination has always been made with consideration of moral issues. For example, provisions barring bigamy and polygamy have traditionally been based upon moral disapproval of bigamists and polygamists. Moral disapproval is part of the rationale for state laws against incest. Morality has often been one relevant factor in deciding who can and cannot be married. If the state legislatures cannot consider morality when determining who can and cannot be married, the effect might be to overturn many provisions other than those barring same-sex marriage.

     The author continues to believe that the preferable rationale for creating a federal right to same-sex marriage is Kitchen v. Herbert, 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013). Kitchen refused to hold that Utah's provision barring same-sex marriage was unconstitutional due to antigay prejudice, finding that the restriction was based upon a complex mixture of good and bad intentions. Instead, Kitchen held directly that same-sex couples have a fundamental constitutional right to marry. The holding was based consciously upon Loving v. Virginia, 388 U.S. 1 (1967), which recognized a similar right for mixed-race couples. Extending Loving to same-sex couples is the cleaner and more logical route for creating a broad federal right to same-sex marriage.

     In sum, the fundamental problem with Bishop is that the reasoning goes too far and inflicts too much collateral damage. Some morality-based marriage restrictions, such as provisions that bar polygamy, are generally accepted. The fundamental problem with same-sex marriage is not that the legislature considered morality, but rather that it considered morality in a way that violated the fundamental right of same-sex persons to marry. The proper path for recognition of same-sex marriage is Kitchen, not Bishop.

Windsor Update: HSAs and Other Benefit Plans


Brett Turner, Senior Attorney, National Legal Research Group

     In IRS Notice 2014-1, 2014‑2 I.R.B. 270 (Jan. 6, 2014), the IRS dealt with various consequences of the Windsor decision on same-sex couples who participate in benefit plans. The notice is based upon Revenue Ruling 2013-17, 2013‑38 I.R.B. 201, which generally provides that a same-sex marriage is valid under federal law if it is valid in the state in which it was celebrated, regardless of where the parties reside thereafter.

     Two particular issues discussed in the Notice deserve special attention. First, the Notice suggests that for purposes of certain benefit plans allowing beneficiaries to change benefit options only under limited circumstances, such as a change in marital status, the Windsor decision will be treated as a change in marital status. For example, if a couple had a same-sex marriage which was valid under state law, that marriage was not recognized by federal law before Windsor was decided. When Windsor required the federal government to recognize the marriage, the parties' marital status changed for purposes of federal law, allowing them to select new benefit options, even though the parties' marital status under state law remained

     Second, many taxpayers are finding significant financial advantages in high-deductible health insurance plans and their associated Health Savings Accounts (“HSAs”). Taxpayers make regular tax-contributions to HSAs, and the amount of these contributions is generally not taxable income. But the total annual amount of the contributions is limited in amount, and when either spouse elects family coverage, there is a single cap applying to contributions made by the entire family.

     Assume that before Windsor, a same-sex couple enters into a valid marriage under state law. Both spouses are employed and both elect to create HSAs. Because they have children, at least one spouse elects family coverage. They then plan their deductions so that each spouse will have the maximum permitted amount withheld from his or her salary and deposited in the HSA. Since the parties' marriage is not recognized by federal law, each spouse makes the maximum contribution permitted for an unmarried person. 

     Then, Windsor is decided, and the parties' marriage is recognized by federal law, partway through the tax year. Because at least one spouse elected family coverage, there is a single combined maximum deduction which applies to the entire family. But this amount is materially less than twice the maximum deduction for unmarried persons, so that if the 2013 deductions occur as originally planned, the total deduction for both spouses in tax year 2013 will exceed the maximum allowed for family coverage.  

     Prudent taxpayers may have seen this problem coming and reduced their post-Windsor HSA deductions to fall within the lower maximum. But many taxpayers do not consider tax issues until the time comes to prepare and file returns.  

     IRS Notice 2014-1 confirms that if a same-sex couple in this situation exceeds the maximum allowed deduction for family coverage under an HSA, they must pay the excise tax charged on excess contributions. I.R.C. § 4973. It notes, however, that under I.R.C. § 223(f)(3), excess contributions can be distributed out of an HSA back to the owners at any time before the date for filing that's year's tax return. These distributions are treated as taxable income, but they are not subject to the excise tax.

     Thus, if a same-sex couple contributes too much to an HSA because the recognition of their marriage by Windsor reduced the allowable maximum annual HSA contributions, the remedy is to distribute the excess contributions (and any income earned on those contributions) before the due date of the couple's 2013 tax return.

Windsor Update: Kitchen Ruling Stayed


Brett Turner, Senior Attorney, National Legal Research Group

      As previously discussed, a federal district court in Utah ruled that federal law requires Utah to recognize same-sex marriage. Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013). The court refused to stay its ruling pending appeal, as did the Tenth Circuit. But the U.S. Supreme Court intervened and ordered a stay.  Herbert v. Kitchen, No. 13A687 (Jan. 6, 2013). There was no recorded dissent.

     Unlike some, the present author sees the Supreme Court ruling as a caution sign directed at the lower federal courts. In recent months, at least two major federal decisions have construed Windsor to require that state law restrictions on same-sex marriage be held unconstitutional. In addition to Kitchen, see Obergefell v. Kasich, No. 1:13‑CV‑501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). The effect of these rulings, and in the case of Kitchen the stated intent, was to create a broad federal right to same-sex marriage—that is, to extend to gay couples the reasoning of Loving v. Virginia, 388 U.S. 1 (1967).

     But the blunt fact is, if Windsor had intended to apply Loving to gay couples, it could easily have done so. Instead of doing so, Windsor spoke at length about the long tradition of treating the validity of marriages as a subject for state law. That discussion is very inconsistent with any intent on the Court's part to hold that federal law requires recognition of same-sex marriage. 

     As this blog has previously noted, there are two parts to the Windsor opinion. The first part stresses federalism; the second part holds that section 3 of DOMA was unconstitutional because it was intended to discriminate against gay couples. The second part of the opinion is very broad, because essentially all restrictions on same-sex marriage were enacted with discriminatory intent on the part of at least some of their supporters. If not checked by the first part, the second part quickly leads to the position that all restrictions on same-sex marriage are invalid—which is tantamount to recognizing a federal right to same-sex marriage.

     If the Supreme Court agrees that only the second part of the Windsor opinion matters, then Windsor essentially forces nationwide recognition of same-sex marriage in the very near future. If that was the majority's intent, it would seem logical to deny a stay in Kitchen

     By granting a stay, therefore, the Court suggests that the second part of Windsor does not automatically supersede the first part. The second part was the controlling rationale on the facts of Windsor, but that was true in part because the validity of marriages is a subject on which Congress has not traditionally legislated. State legislatures, by contrast, deal regularly and often with the validity of marriages. The validity of state law restrictions on same-sex marriage is therefore a different and somewhat closer question than the validity of federal law restrictions. It is not certain that the rationale of Windsor will apply to state law restrictions on same-sex marriage—and that is why the Court granted a stay.

     The granting of a stay also does not mean, of course, that state law restrictions upon same-sex marriage will be upheld. The key question is whether the discussion of federalism in the Windsor opinion was intended as a material limitation on the holding. It is possible that the answer might be no—or that the answer might become no by the time the Supreme Court considers the question again.

     But the granting of a stay in Kitchen does at least suggest the presence of a real and substantial question. If the discussion of federalism in Windsor was intended to have no weight, then the second part of Windsor probably would require nationwide recognition of same-sex marriage, and there would be no reason to grant a stay in Kitchen. By granting a stay, the Court suggested that the discussion of federalism in Windsor could potentially be a limitation on the remainder of the holding, and that the lower courts should not apply the second part without at least some consideration of federalism concerns.

     Given the willingness of Obergefell in particular to apply the second part of the Windsor opinion without much consideration of the first part, the author reads granting of the stay as a caution sign. Windsor does not quickly and obviously lead to a federal right to same-sex marriage; the federalism portion of the Windsor opinion should be not summarily written off.

     The ultimate answer to these questions must of course await the next Supreme Court same-sex marriage case—which could well be an appeal from the forthcoming Tenth Circuit ruling in Kitchen.

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