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Sixth Circuit Lets Gay Marriage Bans Stand in OH, MI, TN, and KY: Legal Analysis, Part 1

6thcircuit

BY ARI EZRA WALDMAN

Reading the Sixth Circuit's opinion permitting states to ban same-sex marriage is a cognitively dissonant experience: the opinion isn't really about gays, marriage, or gay marriage. It is, as the dissent notes, an "engrossing TED talk" on political philosophy or democracy. It is, in other words, a magician's misdirection.

The Sixth Circuit's conservatives do not want us to realize that what they just did is tear away equal and fundamental rights from real committed, loving couples, many of whom are raising children. Rather, they want us to think that they were hamstrung by their humble roles and the narrow confines of their judicial charges. Well, they can't fool us and they won't fool Justice Kennedy.

In a meandering opinion riddled with rhetorical questions rather than reasoned legal analysis, Judge Sutton (above, middle) argues, essentially, that he cannot affirm the unconstitutionality of bans on same-sex marriage because he is handcuffed by three things: Baker v. Nelson, the limited role of the judiciary and the Constitution, and eons and eons of social tradition. His language suggests, not too convincingly, that he would jump at the chance to allow gays to marry if he were a voter or a legislator. But as a judge, sitting in an intermediate appellate court inferior to the Supreme Court, he can't. He just can't.

Don't let Judge Sutton's rhetoric fool you. Behind the gloss of reasonable-sounding respect for the dignity of gay persons lies the same odious discrimination we have been hearing from the rump of the radical right still apoplectic that two men or two women can marry.

GinsburgThe upshot of this opinion is that it is Justice Ginsburg's trigger for when she thought the Supreme Court might take up a marriage equality case: the Sixth Circuit has just upheld bans on same-sex marriage. Now we are on a track to return to the Supreme Court where we may get a substantive holding on marriage equality. Expect an appeal request to be filed quickly, and expect the Supreme Court to take the case. We may even get a decision in June, on the anniversary of Windsor.

This is the first in a series of columns on the Sixth Circuit's decision; there are just too many pieces to this opinion to cover at once. Stay tuned to Towleroad over the next few days for special in-depth coverage and analysis.

Let's begin with a general summary of Judge Sutton's primary motivating point, AFTER THE JUMP...

Continue reading "Sixth Circuit Lets Gay Marriage Bans Stand in OH, MI, TN, and KY: Legal Analysis, Part 1" »


Marriage Equality and the Court: What Happened in Puerto Rico?

Puertorico

BY ARI EZRA WALDMAN

In a decision that willfully ignored the prevailing wisdom of most of the federal judiciary, a judge in Puerto Rico recently tossed a lawsuit challenging the island's ban on gays marrying. The judge did not expressly uphold the constitutionality of the ban; rather, he granted PR's motion to dismiss the lawsuit. Either way, the case is headed for appeal at the First Circuit Court of Appeals. This case adds a little texture to the Supreme Court's refusal to take seven marriage equality cases, bringing an end to marriage discrimination in much of the country. But do not expect Puerto Rico to derail our forward march.

2_circuitsPuerto Rico is not just an LGBT-friendly locale in the Caribbean; it's also a territory of the United States under the jurisdiction of the First Circuit. That court also includes Maine, New Hampshire, Massachusetts, and Rhode Island and, as such, it has not had the opportunity to weigh in on the constitutionality of a state ban on same-sex marriage since Windsor because, like the Second and Third Circuits, all its states are marriage equality states. That is, except for Puerto Rico.

Into this mix walked several Puerto Rican same-sex couples, represented by Lambda Legal, who want to get married and who have been watching from the sidelines as bans topple like dominoes in the states. After they filed their lawsuit, the state's response was to ask the judge to dismiss the lawsuit for, among other things, lack of jurisdiction.

A motion to dismiss is not unusual. In fact, motions to dismiss or motions for summary judgment are two tools used often to decide cases without having to go through the complexities, expense, and uncertainties of a trial. Even this particular argument wasn't rare. But although the motion may not have been unusual, the judge's decision was, at least in a post-Windsor world.

I summarize the court's ruling and explain why the judge was utterly and completely wrong, AFTER THE JUMP...

Continue reading "Marriage Equality and the Court: What Happened in Puerto Rico?" »


Nationwide Marriage Equality: Why We Might Not Even Need the Supreme Court

Scotus

BY ARI EZRA WALDMAN

Back in June, I argued that there may never be a need for the Supreme Court to take a marriage equality case.

We have marriage rights in Washington, Oregon, California, New Mexico, Minnesota, Illinois, Iowa, Maryland, Delaware, Pennsylvania, New York, New Jersey, Connecticut, Rhode Island, Massachusetts, New Hampshire, Vermont, Maine, Utah, Oklahoma, Wisconsin, Indiana, Virginia, and the District of Columbia. The Ninth Circuit just declared the bans on marriage equality in Idaho and Nevada unconstitutional. Both states will have to comply in short order. Since there is no reason to stay those cases given the Supreme Court's recent denials of review, we will soon have marriage equality in at least 32 states! 

The Supreme Court has denied review in cases out of the Fourth, Seventh, and Tenth Circuits. That leaves marriage equality lawsuits  on appeal at the Fifth (the Texas case) and Sixth (the Michigan case). Marriage equality is almost a sure bet in, at least, the entire Ninth Circuit now.

At some point, the conventional wisdom says, all these cases will lead back to the Supreme Court.

Not necessarily. Looking at the map and our string of marriage equality victories, I wonder whether we will need the Supreme Court at all. A nationwide freedom to marry could be a fait accompli without five justices of the Supreme Court.

I make the argument AFTER THE JUMP...

Continue reading "Nationwide Marriage Equality: Why We Might Not Even Need the Supreme Court" »


Why Each SCOTUS Justice Might Be Avoiding the Marriage Equality Question Right Now

BY ARI EZRA WALDMAN

The media have been universally shocked at the Supreme Court's announcement today. Now that we have had time to read several media accounts (including our own Towleroad coverage) we should take a step back and analyze what this means from a legal, political, and practical perspective. I also would like to shed a little more light on how this may have happened and what conclusions, if any, we can draw from it.

ScotusLet's be clear on what did not happen. The Supreme Court did not make a substantive ruling on the constitutionality of banning gays from marrying. Nor did the Court make any ruling on the justice of marriage equality. The constitutional question lives on for another day.

The Court's denial of the petitions also has no explicit legal effect on anything other than those particular 7 cases for which it denied review and on the circuit court decisions below. It has, in the legal jargon, no precedential value: it does not compel any other court to make a certain decision in a certain way. 

But it does represent the federal courts' final word on these cases. There are no more avenues of appeal for the anti-equality forces in Wisconsin, Indiana, Utah, Oklahoma, and Virginia, as well as in the other 11 remaining states covered by the Fourth, Seventh, and Tenth Circuits that do not already have marriage equality. That means that loving, committed gay couples can start marrying in those states very soon. Thanks to Virginia Attorney General Mark Herring, "soon" is now. Other states, especially those run by conservative, anti-gay governors, may try to defy the inevitable for as long as they can. But sooner rather than later, clerks from South Carolina to Wisconsin will be issuing marriage licenses to gay couples. They will be strengthening the institution of marriage in their states and throughout the country.

Many are wondering how this could have happened. Some commentators expected (more likely, hoped) that the Court would take at least one of these cases. Some expected the Court to do nothing. Back in June, I argued that there may never be a need for the Supreme Court to take a marriage equality case. I was alone in arguing that then, and there are now several commentators coming around to realize that possibility. The denials today only reinforce my point.

Follow me for one possible explanation for how and why this happened.

CONTINUED, AFTER THE JUMP...

Continue reading "Why Each SCOTUS Justice Might Be Avoiding the Marriage Equality Question Right Now" »


Supreme Court Denial Opens Door to Marriage Equality in 11 More States: An Analysis

Scotus

BY ARI EZRA WALDMAN

Today we received word that the Supreme Court denied review of all seven marriage equality that were pending before it. These cases came out of the Fourth, Seventh, and Tenth Circuits. This means that the Supreme Court has made its move, the appellate courts' pro-equality decisions will stand, the stays will be lifted (shortly), and marriages can begin shortly thereafter. 

Consider the magnitude of this win.

The Fourth Circuit includes Maryland, West Virginia, Virginia, North Carolina, and South Carolina. The Seventh Circuit includes Indiana, Illinois, and Wisconsin. The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. Those jurisdictions cover nearly 74 million people. Taking away those states that already have marriage equality--Maryland, Illinois, and New Mexico--and we will soon have more than 52 million more Americans living in marriage equality states.

It also will ultimately bring 11 more states to the marriage equality fold. That will likely happen in two stages. First, the five states that were defendants in the cases the Supreme Court just denied will almost immediately have to allow gay couples to marry. Then, because the appellate court decisions cover the other states, as well, all the remaining the states will have to do the same in short order. This brings our marriage equality tally to 30 states plus the District of Columbia. Three-fifths of the states will now be marriage equality states just like that!

In addition to the very real, practical effect of allowing tens of thousands of gay couples to marry, the surprising denial may mean several other things:

First, the Supreme Court is making a strong, though of course not definitive statement, about where it is heading. To deny all seven cases and let the pro-equality appellate court decisions stand speaks to the court's willingness to see marriage equality come to more states. If a majority was opposed to that, at least four justices would have voted to take the case to try to prevent that from happening.

GinsburgSecond, taking today's actions together with Justice Ginsburg's recent statements that the Supreme Court will take a marriage equality case "soon" and to look to the Sixth Circuit, it seems as if the Court is respecting the traditional canon of not taking a case before it has to. We have, to date, run the table on marriage equality in the federal appellate courts, so there is no circuit split (an old Eighth Circuit case from before Windsor does not count). 

Third, if I wanted to be a little cheeky, I would say the Court is almost daring the conservatives on the Sixth Circuit to uphold the ban on gays marrying. "We dare you to send us a bigoted decision saying gays cannot marry. We just allowed 11 more states to let gays marry. Marriage equality is almost literally surrounding the Sixth Circuit. We dare you! Watch how fast we reject you."

So, what happens now?

Because the Supreme Court has denied review in all marriage equality cases, those cases are over. The appellate court decisions, which upheld district court decisions holding marriage discrimination provisions unconstitutional, stand. Since the cases are over and since the Supreme Court's denial of review is final word on the matter, the stays, whether issued by appellate courts or district courts, will end shortly. Within a few days, gay couples should be allowed to marry in Wisconsin, Indiana, Virginia, Utah, and Oklahoma. For marriage equality to come to the other states under the jurisdiction of the Fourth, Seventh, and Tenth Circuits, an additional step may be needed. Attorneys general or governors in those states could immediately declare that per the Supreme Court's denial and the impending order from the appellate courts, those states' bans are null and void, and that clerks should start issuing marriage licenses as soon as possible. Normally, courts will give states a short leeway time to make the necessary administrative changes to comply. 

Sure, a governor or attorney general could try to nullify the courts' orders, standing in the proverbial schoolhouse door like an anti-gay version of the racist Governor George Wallace. But if a gay couple in, say, South Carolina, goes to a clerk's office and seeks a marriage license in accordance with all other South Carolina marriage law requirements, any clerk's refusal to issue a license on the ground that the individuals are gay would be subject to a lawsuit that would immediately be decided in the couple's favor.

Expect some rhetorical protests, especially from the more recalcitrant and conservative Republican governors, but do not expect their defiant behavior to last very long.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


What's Happening at the Supreme Court Right Now

Scotus

BY ARI EZRA WALDMAN

The justices of the Supreme Court are meeting right now to discuss a slew of petitions for hearings. There are seven such petitions on marriage equality cases from Oklahoma, Indiana, Utah, Wisconsin, and Virginia.

Regular Towleroad readers will recall our review of these cases here (discussing the Tenth Circuit decision declaring Utah's ban unconstitutional), here (discussing a similar decision about Virginia's ban at the Fourth Circuit), here (discussing the "Posner treatment" that lawyers for Indiana and Wisconsin got at the Seventh Circuit), and here (discussing the Seventh Circuit decision). 

Even though these cases are "ripe" -- the legal term for "ready" -- for review and even though both sides of all seven cases agree that the Supreme Court should take the case, do not expect the Court to take any of the cases today.

Supreme CourtThere are several reasons the Court may take at least one case:

First, everyone wants it. Freedom to Marry has an ongoing campaign urging the Court to take a marriage equality case and end marriage discrimination nationwide. Anti-gay and pro-equality attorneys filed briefs urging the Court to take their cases, both sides confident they can win. And that does not always happen. Generally, the party that wins in the appellate court is rarely inclined to have a higher court review the decision. Here, many people think it has to happen.

Second, all the decisions are stayed pending Supreme Court review. Every day that passes without a Supreme Court decision is another day in which gay couples face discrimination even though several federal appellate courts have said that the discrimination is unconstitutional, wrong, and must go. The orders stemming from those decisions are on hold pending a final word from the Supreme Court.

Third, these cases pose all the issues. Sometimes, the Court will decline to take a case because the case before it does not raise all the issues or because a quirk at the lower court prevents it from making a complete decision. It happens quite a bit: Imagine a criminal case where an attorney fails to make an objection or a defendant concedes a question of law. If that happens, an appellate court can rarely address those controversies. Here, all issues are in play, including heightened scrutiny.

There are, however, many more reasons why the Court may not take a case just yet.

First, there is no circuit split. Every appellate court to hear a marriage equality case has decided against the ban, declaring them all unconstitutional. Sure, the Seventh Circuit did it in flamboyant, unanimous fashion, but that's just icing. The Supreme Court most often takes cases when there is a disagreement between the circuits. Here there is none. And, a decision at the Eighth Circuit from before the Supreme Court decided Windsor does not count. There has been intervening case law that could impact the decision and, as such, the Eighth Circuit decision does not create a circuit split.

Second, there are several other cases pending. We have cases in the Ninth Circuit and, more importantly, in the Sixth Circuit. The Sixth Circuit hearing, which we discussed here, did not give us obvious clues as to its outcome. One judge seemed inclined to vote against the ban, another judge was in favor of discrimination. A third judge, a George W. Bush appointee and a conservative, is more of a wild card. If the Sixth Circuit goes against marriage equality, that would create a circuit split and would force the Supreme Court to act.

Third, there may be no need for the Supreme Court. If the Sixth Circuit goes with its sister courts -- an eventuality made more likely when someone as conservative and well-respect as Judge Posner eviscerated all anti-equality arguments -- there still will be no circuit split. The Ninth Circuit will decide its cases shortly, and will very likely strike down the bans. A couple of circuits are left, but it is not clear any of them will push the Court to act.

GinsburgFourth, Justice Ginsburg wants to wait. In a talk at the University of Minnesota, the dean of the Court's liberal wing suggested that she was inclined to wait for the Sixth Circuit (and perhaps other circuits) to act. There is no rush, she said. The Court will act when it is necessary.

Waiting might also be a good thing for the marriage equality journey in the long run. The longer we wait, the more federal circuit victories we can rack up, proving to wary conservative justices that the American consensus has emerged. Few -- maybe Justices Scalia and Thomas -- are going to want to stand in the way of that.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


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