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


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

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.

Windsor Update: The Seventh Circuit Rules


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.

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


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.

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


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.

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


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.

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


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.

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: Recent Federal District Court Decisions


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.

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.

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