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.