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.
