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    Family Law Legal Research Blog

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

    Posted by Gale Burns on Thu, Sep 11, 2014 @ 17:09 PM

    Brett Turner, Senior Attorney, National Legal Research Group 

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

    Topics: legal research, family law, Brett turner, Windsor, constitutional ban of same-sex marriage, Robicheaux v. Caldwell, E.D. Louisiana, held restrictions are constitutional, sexual orientation not a suspect class, restriction directly related to linking children w, relied on democratic process, held constitutional restrictions not motivated by

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