Sexual Orientation Discrimination Against Jurors Gets Heightened Scrutiny, Unconstitutional, Ninth Circuit Court of Appeals Holds

“We are all our own jury,/some day we’ll be put on trial.”

In a unanimous opinion authored by Judge Stephen Reinhardt, the U.S. Court of Appeals for the Ninth Circuit held that peremptory strikes of potential jurors on the basis of their sexual orientation is unconstitutional.  The court’s opinion in SmithKline Beecham Corp., dba GlaxoSmithKline v. Abbot Laboratories, decided January 21, 2014, may ultimately be even more significant for its holding that sexual orientation discrimination challenged under the Equal Protection Clause is subject to heightened scrutiny, not mere rationality review, a holding that goes beyond what the Ninth Circuit had said in Judge Reinhardt’s opinion in the Proposition 8 litigation (Perry v. Brown, holding California’s constitutional amendment stripping same-sex couples of the right to marry violated federal Equal Protection Clause because it could not survive even rational basis review).

The litigation began when SmithKline Beecham sued Abbot Labs over a dispute regarding a licensing agreement and the pricing of HIV meds (something Abbott dramatically raised following its agreement with SmithKline).  The case went to trial, and defendant Abbot used its first peremptory strike to remove a potential juror who indicated that he had a male partner.  The court’s opinion refers to him as “the only self-identified gay member of the venire,” but it cites no evidence other than the male juror candidate’s statements and pronouns referring to his partner, so he may well have been bisexual, a possibility the opinion fails to mention.  Either way, a strike of him because he was gay or bisexual would have been a strike based on his sexual orientation, so the court’s ultimate conclusion probably is unaffected by its assumption.

Although peremptory strikes differ from strikes “for cause” in that they do not require a striking attorney to identify bias on the part of the potential juror, they cannot be exercised for constitutionally impermissible reasons.  The Supreme Court held in Batson v. Kentucky (1986) that peremptory strikes based on race violate the Equal Protection Clause.  It subsequently extended that holding to cover peremptory strikes regardless of whether it’s a prosecutor or a defense attorney striking, and whether it’s a criminal or a civil case.  In J.E.B. v. Alabama ex rel. T.B. (1994) the Supreme Court extended Batson to hold that equal protection also forbids jury strikes based on sex.  It has not yet considered the question whether the same is true of strikes based on sexual orientation.

A significant part of the answer to that question is whether sexual orientation discrimination is generally subject to heightened scrutiny or just rational basis review under the Equal Protection Clause.  (J.E.B. said that where discrimination against a group receives only rational basis review, jury strikes on that basis do not violate equal protection.)  But that too is a question the Supreme Court has not expressly answered.  In its highest profile ‘gay rights’ cases – Romer v. Evans (1996), which invalidated an anti-lesbigay amendment to Colorado’s state constitution under the federal Equal Protection Clause, Lawrence v. Texas (2003), which struck down Texas’s same-sex only ban on oral and anal sex under the federal Due Process Clause , and United States v. Windsor (2013), which held that the section of the “Defense of Marriage Act” that ignored lawful marriages of same-sex couples violated equal protection – the Supreme Court has repeatedly failed to name and so definitively resolve the level of scrutiny that equal protection demands when government discriminates on the basis of sexual orientation.

Admitting this, the panel opinion had to decide whether sexual orientation discrimination is subject to heightened scrutiny.  Earlier Ninth Circuit precedent concerning the military’s “Don’t Ask, Don’t Tell” had faced a similar question regarding Lawrence v. Texas.  In Witt v. Department of the Air Force, the Court of Appeals had to decide what kind of scrutiny applied to the military exclusion of lesbigay people under the Due Process Clause.  Lawrence did not say, so the Court of Appeals had to look to “what the Court actually did,” that is, what kind of analysis it conducted.  Doing likewise here to make sense of Windsor’s equal protection holding, the Ninth Circuit concluded that Windsor’s analysis was inconsistent with the great deference and mandatory consideration of hypothetical state purposes required under minimal rational basis review.  Accordingly, the Ninth Circuit panel determined that heightened scrutiny applies under the Equal Protection Clause to sexual orientation discrimination.  Judge Reinhardt’s opinion also held that earlier Ninth Circuit case law applying only rational basis review to sexual orientation discrimination challenged as violating equal protection was no longer good law because of the Supreme Court’s decision in Windsor.  (Minor quibble: the panel’s opinion says that the Supreme Court in Lawerence v. Texas recognized one Supreme Court decision, Department of Agriculture v. Moreno (1973), as applying “a more searching form of rational basis review,” when it was only Justice O’Connor’s opinion concurring in the judgment that espoused that position.)

Then, acknowledging that the histories of discrimination against racial minorities, against women, and against lesbigay vary (actually, the court again ignored bisexual persons to focus on “gays and lesbians”), and that gay and lesbian people were not openly excluded from juries the same way women (of any races) and African Americans (of any gender) were, the court recounted some of the pervasive discrimination lesbigay people have historically faced in the U.S. in governmental employment, immigration law, and military service, grounded in degrading stereotypes.  This helped establish that anti-lesbigay jury strikes stem from and cause the same kinds of injustices, for individuals, groups, and the entire polity, that warrant interpreting equal protection to forbid race- and sex-based strikes:

 “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

The Court of Appeals also rejected Abbott’s exhortation not to extend Batson to sexual orientation-based strikes in order to protect individuals’ privacy rights.  The court thought those concerns significant, but was confident that the privacy of potential jurors can be protected through other means.  The court also rejected Abbot’s argument that it should not reach the Batson extension issue because none of SmithKline’s legal claims should have been allowed to reach the jury.  The Ninth Circuit Court of Appeals recognizes no harmless error exception to Batson violations, and even if there were, at least one of those claims required jury trial, the court held, but the jury was tainted by the discriminatory strike.  Accordingly, the court reversed the trial court and remanded the case for a new jury trial.

If the reasoning of the court of appeals is sustained, it could have big implications for anti-lesbigay discrimination, including laws excluding same-sex couples from civil marriage.  It is not clear whether the full Ninth Circuit would likely vote for review by an en banc panel of eleven judges or whether the Supreme Court would be likely to grant review, should Abbot seek either.  There is no real conflict between Court of Appeals holdings on this, with the Ninth Circuit breaking new ground here.  The Court does not choose to hear “gay rights” cases very frequently, and it just decided Windsor in June of 2013.  On the other hand, it only takes four Justices to vote to grant review, and some Justices could feel that it might be good to decide the general equal protection level-of-scrutiny issue in a factual context that probably divides the U.S. public less than does the issue of marriage for same-sex couples.  The Supreme Court ducked that general question in Windsor; only time will tell whether it chooses to take it up in the jury service context.

Court Holds Oklahoma Marriage Exclusion Unconstitutional

“Brand new state, gonna treat you great!”

U.S. District Court judge Terence C. Kern, appointed a federal trial judge in 1994, held on January 14, 2014 that Oklahoma’s exclusion of same-sex couples from marriage, enshrined in its state constitution in 2004, violates the Equal Protection Clause of the U.S. Constitution.  That’s a lot of anniversaries in that sentence, and, if the decision is upheld on appeal – he stayed his orders in light of the Supreme Court’s having stayed the judicial injunction against Utah’s marriage exclusion – it will eventually lead to anniversary celebrations for same-sex couples in the Sooner State (the sooner the better!).

(AP Photo/Tulsa World, James Gibbard)

Two lesbian couples, Gay Phillips and Sue Barton, and Mary Bishop and Sharon Baldwin, filed a federal lawsuit in 2004 challenging both Oklahoma’s exclusion of same-sex couples from marriage and the federal “Defense of Marriage Act” (“DOMA”) as violating their constitutional right to marry and right to equal protection of the laws.After a long procedural history, Judge Kern dismissed the challenge to DOMA’s definition of marriage as different-sex because the Supreme Court already ruled that unconstitutional in June 2013; dismissed the challenge to DOMA’s section purporting to give states permission not to recognize marriages of same-sex couples from other jurisdictions, concluding that it was not causing Oklahoma to deny the couples marriage licenses; and held that Oklahoma’s marriage ban lacked a rational basis for denying marriage to same-sex couples and so violated equal protection.  (The court therefore did not reach the question whether the ban also violates the fundamental right to marry protected by the Constitution’s Due Process Clause.  The court also dismissed the challenge to the Oklahoma provision denying recognition to valid marriages of same-sex couples from other jurisdictions because it concluded the plaintiffs had sued the wrong defendants, who lacked authority to “recognize” any out-of-state marriages.)

The court properly concluded that the Supreme Court’s summary (without opinion) affirmance in 1972 in Baker v. Nelson of a decision rejecting constitutional challenges to Minnesota’s exclusion of same-sex couples from marriage did not require courts today to reject such cases; the Supreme court’s equal protection jurisprudence has evolved too much for Baker’s unexplained decision to be binding any more.  The Court also concluded that the Supreme Court’s decision striking down DOMA’s heterosexual-only definition of marriage in Windsor did not directly dictate a conclusion either way.  Unlike DOMA, Oklahoma’s marriage law did not involved an unusual federal intrusion into the regulation of marriage, something traditionally conducted by states, so the court here viewed Oklahoma’s law with less suspicion than the Supreme Court had for DOMA.  On the other hand, the trial court here in the Bishop case correctly appreciated that Windsor says even state definitions of marriage must not violate federal constitutional rights, and it read Windsor to caution against accepting invocation of tradition that might be “a guise for impermissible discrimination against same-sex couples.”

In its equal protection analysis, the trial court somewhat gratuitously rejected the argument that Oklahoma’s marriage exclusion should be analyzed as sex discrimination, as the federal trial court in Utah had recently concluded.  Instead, because he saw the law as discriminating against same-sex couples, he judged it tantamount to sexual orientation discrimination.  Tenth Circuit Court of Appeals precedent treats sexual orientation discrimination as not suspect of even quasi-suspect, so courts examine it using only the deferential standard of “rational basis review” (instead of a more skeptical “heightened,” “intermediate,” or “strict scrutiny”).

Yet, the court concluded, Oklahoma’s marriage exclusion failed even “deferential rationality review.”  Assuming for sake of argument “that Oklahoma has a legitimate interest in encouraging “responsible procreation,’ (i.e., procreation within marriage), and in steering ‘naturally procreative’ relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State,” the court nonetheless found no rational connection between Oklahoma’s marriage ban and these interests.  Couples need not want or even be able to procreate in order to marry; letting same-sex couples marry would “not harm, erode, or somehow water-down the ‘procreative’ origins of the marriage institution, any more than” allowing couples who could not or did not want themselves to procreate “naturally”; marriage would still offer the same incentives to couples who might contemplate such procreation; and especially in light of the fact that same-sex couples do have and raise children by various means, Oklahoma’s “purported justification simply ‘makes no sense’ in light of how Oklahoma treats other non-procreative couples” who want to marry.  Even if same-sex couples are not as likely to have an accidental pregnancy as different-sex couples, that does not provide the constitutionally required rational basis: “the state’s exclusion of only same-sex couples in this case is so grossly underinclusive that it is irrational and arbitrary.”  Although it is deferential, “[r]ationality review has a limit, and this [argument] well exceeds it.”

The trial court also rejected the notion “that excluding same-sex couples is rationally related to the goal of ‘promoting’ the ‘ideal’ family unit.”  The court observed that “[e]xclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner” nor could the judge “discern from any of [the defendant’s] cited materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay [intact].”  Chiding the state or at least suggesting hypocrisy, the court noted that “[e]xcluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.”  (Snap!)

Relying on a publication from the conservative Witherspoon Institute, the defense also argued “that “it is rational for Oklahoma voters to believe that fundamentally redefining marriage could have a severe and negative impact on the institution as a whole.”  The court rejected this fearmongering “negative-impact’ argument” as “impermissibly tied to moral disapproval of same-sex couples as a class….’   In language echoing (though without citing) Justice Alito’s defense in Windsor, where Alito would have upheld DOMA on the grounds that voters could supposedly permissibly choose between a “traditional,” “conjugal” view of marriage and a “newer,” “consent-based view,” the district court noted that “[a]ll of these perceived ‘threats’ are to one view of the marriage institution – a view that is bound up in procreation, one morally ‘ideal’ parenting model, and sexual fidelity.”  But a serious problem with this line of defense of the exclusion of same-sex couples from marriage is that “civil marriage in Oklahoma is not an institution with ‘moral’ requirements for any other group of citizens:

“With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements.  Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class.  It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”

Accordingly, the trial court held Oklahoma’s marriage discrimination against same-sex couples to be an unconstitutional deprivation of the equal protection of the laws commanded by the Fourteenth Amendment to the U.S. Constitution.  “Equal protection is at the very heart of our legal system and central to our consent to be governed.  It is not a scarce commodity to be meted out begrudgingly or in short portions.  Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”  Indeed.

Utah Officials Ask Court to Stop Same-Sex Couples Marrying

“There’s safety in numbers/And the more the merrier am I”

The same day U.S. District Judge Robert Shelby held that Utah’s ban on recognizing marriages of same-sex couples was unconstitutional (in Kitchen v. Herbert, addressed here), the state’s Governor and Attorney General asked him to stay his decision.  (Interestingly, the third named defendant, the Clerk of Salt Lake County, did not join in this motion.)  If successful, their motion for a stay of the judgment pending the appeal they said they’ll file would probably put a stop to same-sex couples marrying in Utah at least until a ruling on the merits by the federal appellate court (the U.S. Court of Appeals for the Tenth Circuit).  It seems unlikely Judge Shelby would grant the stay, and if the Tenth Circuit does, it probably would not be because of the legal reasoning in the state official’s motion, which is surprisingly weak.

When a loser in federal court asks for a stay of the court’s judgment in order to preserve the status quo during an appeal, Tenth Circuit rules require the court considering such a motion to consider four factors:  “(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay or injunction is granted; and (d) any risk of harm to the public interest.”  The state official’s arguments on these points in their six-page motion are mighty slim.  I recognize that they filed this motion the same day the trial judge ruled in the case, but they should have been prepared for the possibility that he would rule against them and not stay his judgment.  (After all, that’s what Chief Judge Vaughn Walker did in the federal litigation that held California’s Proposition 8 unconstitutional.)

It can be hard to convince judges that they made a mistake in their rulings.  But the state officials did not even make much effort here.  Their position basically was a safety-in-numbers argument:  we’ve got lots of cases we cited upholding laws excluding same-sex couples from marriage.  Yet it is not enough to say “many other courts have concluded that the opposite-sex definition of marriage rationally serves society’s interests in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by their biological mothers and fathers.”  Not when those cases were decided before the Supreme Court’s landmark decision in United States v. Windsor at the end of June 2013.  And not when this court’s 53-page decision explained why those arguments are (to use a technical term) bogus.  And the state’s closing observation, that in most states with marriage equality it has “been accomplished through the democratic process,” is without more a non sequitur in a section of a motion devoted to the legal correctness of the ruling they seek to stay.

Next, parties seeking to stay a judgment are supposed to show that they will face “irreparable harm” if the stay is denied and the judgment allowed to be operative.  Having failed in the trial court to identify any plausible adverse consequences of letting same-sex couples marry, the state official defendants here did the best they could, offering two injuries.  First, they relied on precedents that say, when a state is enjoined from enforcing its democratically adopted laws, it faces irreparable injury.  That may be true for constitutional laws, but if a law is unconstitutional, the state had no business adopting it, and being enjoined from enforcing it is not much of if any “injury.”  Second, consistent with their narrative in the trial court that the marriage bans were enacted not to hurt lesbigay people but to help all of society, the state officials benevolently suggested that same-sex couples would suffer irreparable injury if allowed to marry “under a cloud of uncertainty” before all appeals were resolved.  The state officials assume that the trial court will be reversed (“when their marriages are declared invalid,” they write (my emphasis)), so this argument as well as the state-cannot-enforce-its-laws argument depend on how likely it is that the trial court will be reversed.  Independently, one might of course think that same-sex couples are in a better position to evaluate for themselves whether the possibility of a future marriage invalidation is more harmful than the reality of continuing in the present with no legal relationship recognition.

On the flip side, people seeking to stay a court’s judgment are also supposed to address the harm to the opposing side if the judgment were put on hold.  Here, the state officials argue that the only harm is delay, and that’s not irreparable, they say.  But if marriage were as symbolically powerful as their ‘responsible procreation’ arguments suggest, delay might be a more serious and not necessarily reparable harm.  Moreover, there are other harms not clearly reparable.  For example, a person might be forced to testify against her same-sex partner, for example, whereas the Utah Rules of Evidence protect spouses from being forced to do that.  Or one party might die, leaving his partner never having been able to marry.

As for risk of harm to the public interest, all the state defendants could muster for this fourth factor was to reassert the claims that the people of the state have a public interest in deciding the contours of state marriage law (again, something true only insofar as their decisions do not violate the Constitution) and that uncertainty about marriage validity harms the public interest.

[UPDATE Mon. Dec. 23, 8:15 a.m.  Over the weekend, the state officials asked the Tenth Circuit appeals court to stay the trial judgment until the trial court rules on their stay motion.  Because they were not actually asking the appellate court to put things on ice until after that court finally rules on the merits, they thought they need not address the four factors above.  But the two Tenth Circuit judges before whom this motion noted that the national and local rules governing the case did not contemplate such a stay order, and so this motion did not comply with the rules.  The ball (the stay motion, in this case) is back in Judge Shelby's court, where arguments are being held as this update is typed.]

Federal Court in Utah Holds Marriage Ban Unconstitutional

“Are you ready, Are you ready for this?”

On Friday, December 20 a federal trial court in Utah held in Kitchen v. Herbert that state’s statutory and constitutional bans on marriage by same-sex couples unconstitutional and enjoined their enforcement.    While this decision could be appealed by the state (and I would be pleasantly surprised if Utah did not appeal), same-sex couples are already marrying.  Coming the day after the New Mexico Supreme Court held that that state’s exclusion of same-sex couples from marriage violated the state constitution, this decision highlights the huge crack in the edifice of marriage discrimination in the U.S., eighteen states wide (plus the District of Columbia) and growing.

The federal trial court held that Utah’s marriage ban was unconstitutional because it violated same-sex couples’ fundamental right to marry protected by the Due Process Clause of the U.S. Constitution and because it violated the Constitution’s Equal Protection Clause.  Quoting Justice Scalia’s dissent in United States v. Windsor (the U.S. Supreme Court case that struck down part of the federal “Defense of Marriage Act”), the court concluded that “the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”

Unlike the New Mexico court, the Utah federal court squarely relied on the constitutional right to marry.  It rejected the state’s claim that the marriage exclusion did not violate that right because lesbigay people could marry heterosexually.  That liberty would be “illusory,” the court said:  “The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.”

Like the New Mexico case, Kitchen rejected the claim that Utah was justified in denying marriage to same-sex couples because they cannot procreate by themselves.  Procreation “is not a defining characteristic of conjugal relationships from a legal and constitutional point of view.  The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children.”  Utah’s effort to get around the fact that it does not make procreative ability “a defining characteristic of conjugal relationships from a legal … point of view” failed.  As the court observed, “Same-sex couples are just as capable of providing support for future generations as opposite-sex couples, grandparents, or other caregivers. And there is no difference between same-sex couples who choose not to have children and those opposite-sex couples who exercise their constitutionally protected right not to procreate.”

The court also rejected the State’s ‘new right of same-sex marriage’ argument.  It properly noted that the Supreme Court did not use this approach to framing the right at issue in Loving v. Virginia.  And after discussing the reasons people seek to marry, the court concluded that “[b]oth same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.”  Relying on Lawrence v. Texas, the court similarly concluded that this analysis was not changed by the fact that there was no long tradition of honoring assertions of the right to marry by same-sex couples.  And the Court again quoted Justice Scalia, this time his Lawrence dissent, where he had argued that the decision would lead down a slippery slope to same-sex couples marrying.  (Although Scalia believes this the wrong constitutional interpretation, perhaps it will be of some comfort to him to be proven right.)  Because Utah’s marriage ban burdened same-sex couple’s right to marry, the court held it would have to survive strict scrutiny.  But since, as the court discusses under its equal protection analysis, the ban did not even have a rational basis, it necessarily also failed the less deferential strict scrutiny applicable under the right to marry.

The court then addressed the plaintiff couples’ equal protection challenge to Utah’s marriage ban.  In contrast to the previous day’s New Mexico Supreme court decision, the trial court here seemed to agree that the ban amounted to sex discrimination. The court noted, again correctly, that the Loving decision rejected the argument that Virginia’s interracial marriage ban didn’t discriminate on the basis of race because everyone was free to marry someone of their own race.  But the court did not definitively conclude that it must subject the state laws to the intermediate scrutiny used for sex discrimination because the ban failed even the easier test of rational basis review.  And rational basis review was what the court believed it had to apply to the claim that the marriage ban discriminates on the basis of sexual orientation due to Tenth Circuit Court of Appeals precedent it viewed as binding.

When the court considered the point of the marriage ban, the state did not look good:  “”First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of marriage to same-sex couples, which is another way of saying that the law imposes inequality.  Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that no domestic union could be given the same or substantially equivalent legal effect as marriage.  This wording suggests that the imposition of inequality was not merely the law’s effect, but its goal.”  And the fact that the state entrenched its statutory ban in the state constitution suggested that this “preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.”

In the end, though, the court thought that Utah’s marriage ban was unconstitutional under “the well-settled rational basis test.”  It had to bear a rational relationship to a legitimate state interest.  In answering that question, the court rightly focused not simply on why Utah offers marriage to different-sex couples, but on why the state banned it for same-sex couples, and so on “whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying.”  And the answer to that inquiry was a resounding ‘No.’

Indeed, the court concluded that “it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts.”  And the state’s interest in “optimal child rearing” fared no better than this “responsible procreation” interest.  The basic problem here was that “the State fails to demonstrate any rational link between its prohibition of same-sexvmarriage and its goal of having more children raised in the family structure the State wishes to promote.”  The court also rejected Utah’s claimed interest in proceeding with caution because of a lack of any evidence of harms from letting same-sex couples marry and because it would improperly shield all state discriminations from any meaningful rational basis review, for states could always assert an interest in wanting more evidence before it stopped discriminating.  Finally, the court concluded that preserving the “traditional definition of marriage” as different-sex only for the sake of preserving that “tradition” was an inadequate justification.

Because the marriage discrimination was unconstitutional, the court did not think it necessary separately to analyze a challenge to Utah’s refusal to recognize marriages of same-sex couples performed by other jurisdictions.  It was all unconstitutional, and the court hammered this home by a detailed comparison of the state’s arguments here with the state’s arguments in defense of the interracial marriage bans invalidated in Loving v. Virginia.  The state simply cannot demean same-sex couples in the way that the marriage ban did.

So, as noted earlier, the federal court enjoined Utah from enforcing its marriage ban.  Time will tell whether the state appeals, and, if it does, whether the decision gets affirmed.  For now, though, same-sex couples in Utah and their families can and are enjoying a wonderful Christmas present – constitutional justice and the equal freedom to marry.

New Mexico Supreme Court Unanimously Requires Equal Marriage

“Find a seed and plant it/Love will make it grow”

Ruling in Griego v. Oliver, a suit brought by six couples, the New Mexico Supreme Court unanimously ruled on December 19, 2013, that the state constitution’s equality guarantees require the state to let same-sex couples marry and have the same attendant rights New Mexico affords to different-sex couples.  This brings to seventeen the number of states with marriage equality, a full third of the nation’s states, plus the District of Columbia.

Relying on various indications of legislative intent, the court held that New Mexico’s marriage statute restricted marriage to different-sex couples (despite its facial gender neutrality).  It then considered whether that restriction violated the state constitution’s equal protection and due process guarantees.

The Court’s due process fundamental rights discussion was a bit perplexing.  The defenders of the marriage exclusion claimed, as opponents of marriage equality usually do, that the right to marry is the right to marry a person of a different sex, so that the plaintiffs were supposedly asking for recognition of a ‘new’ “right to marry a person of the same gender.”  The court apparently rejected this move, which tried to build the identities of the parties claiming the right into the definition of the right.  Instead, the court asserted that “that the correct question is whether the right to marry is a fundamental right requiring strict scrutiny[.]”  This the court said was a “difficult question.”  Even though the New Mexico supreme court had already noted early on that the plaintiffs were pressing arguments under the state constitution only, not the federal Constitution, the court proceeded to survey federal decisions by the Supreme Court of the United States (SCOTUS) to concluded that SCOTUS had not answered whether the right to marry is a fundamental one requiring strict scrutiny or not.  The New Mexico court never explains the relevance of this federal law question to the state law issue before it.  (And note: Although SCOTUS has not used the magic words “fundamental right”/“strict scrutiny” in its marriage cases I don’t think this is reasonably in question.  I won’t go into a full analysis here, but will note that Loving v. Virginia (1967) expressly called the right to marry a “fundamental freedom,” language the New Mexico Supreme Court did not quote or attempt to parse.)

Ultimately, the New Mexico Supreme Court did not need to resolve the right to marry issues because it concluded that the marriage exclusion violated the state constitution’s equal protection guarantee.  The plaintiffs had argued that the marriage exclusion amounted to both sex discrimination and sexual orientation discrimination.  Following the California Supreme Court’s 2008 decision, the New Mexico court gratuitously denied that “that the marriage statutes at issue create a classification based on sex.”  In neither case did the state supreme courts need to address this, because they concluded that the challenged marriage exclusions amounted to unconstitutional sexual orientation discrimination (against lesbigay persons and/or same-sex couples).  The conclusion also rested on the facile notion that men and women had the same rights under the exclusion: the right to marry a person of the same sex.  The U.S. Supreme Court could have viewed Virginia’s marriage laws as giving white and black people the same rights (to marry a person of the same race), yet it rejected this “equal applicability” argument in Loving.  Moreover, the New Mexico court’s reasoning on this point is curiously in tension with its recognition here in Griego that this very court had earlier held “that same-gender couples have custody rights to children under the New Mexico Uniform Parentage Act because, among other reasons, ‘it is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.’” (emphasis added, citation omitted)

Fortunately, the (lack of) sex discrimination reasoning did not ultimately matter because the New Mexico Supreme Court held that sexual orientation discrimination is subject to intermediate scrutiny under the state constitution and that the marriage exclusion could not survive that level of scrutiny.  The court refused to adopt the most deferential standard of judicial review (which would have upheld the marriage exclusion if it had merely a “rational basis”), in part because the fact that “same-gender couples (the LGBT community) are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.”  Moreover, the court concluded “that effective advocacy for the LGBT community is seriously hindered by their continuing need to overcome the already deep-rooted prejudice against their integration into society, which warrants our application of intermediate scrutiny in this case.”  Accordingly, the court asked whether the marriage exclusion was “substantially related to an important governmental purpose.”

The court understood the defenders of the marriage exclusion to be arguing that it advanced governmental interests in “responsible procreation,” “responsible child-rearing,” and avoiding “the deinstitutionalization of marriage.”  The court rejected the latter contention for lack of evidence that whether or not different-sex couples continue to marry has anything to do with whether same-sex couples are allowed to marry (and because to the extent that the argument was based in moral judgments or tradition, it was insufficient to justify the discrimination).

The court also rejected procreation and child-rearing as justification for the marriage exclusion.  They were not reflected in the state’s marriage laws, which instead were about supporting the commitments of couples and any children they might wish to have.  Different-sex couples were not required to be able or inclined to procreate or raise children, and same-sex couples are legally entitled to and in fact raising children, ably and devotedly, in New Mexico and across the country.  (The court did not even deign to address the claim some courts, like those in New York and Washington state had accepted, that marriage discrimination was acceptable because different-sex couples can accidentally get pregnant but same-sex couples could not.)  Although the court had invited interested parties to participate by filing amicus briefs, “[t]he supposed justifications for the discriminatory legal classification [offered there] are categorically at odds with the comprehensive legislative scheme that is intended to promote stable families and protect the best interests of children.  Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause of the New Mexico Constitution.” 

Accordingly, the court ordered that same-sex couples be allowed to marry in New Mexico, afforded all the same rights as different-sex couples (including, presumably, the right to have their valid out-of-state marriages recognized), and provided marriage applications, licenses, and certificates with gender-neutral language.  This decision building on earlier marriage equality litigation (and the Supreme Court's decision in Lawrence v. Texas) is terrific news for same-sex couples in New Mexico (nor or in the future), and for the campaign for sexual orientation equality nationwide.

[edited 11:28 p.m. PST Dec. 19, 2013 to correct two typos and specify second Loving reference]